#### In the Matter of the Estate of John M. Whittemore, Dec'd.

*(Supreme Court, General Term, Second Department,*

*Filed May 11, 1891.)*

"Will—Construction—Estate given.

The testator gave one-half of the income of his estate to his widow for life, and the remainder of the income to his children, with a clause that if any of his children should die before the testator or his wife, leaving children, the parent’s portion should be paid to them. John, one of tha children, died childless during his mother’s life. *Held,*that the gift of the remainder of the income to testator’s children was absolute; it vested on the death of the testator, subject to be divested if the legatee died leaving children, and that the will of John, disposing of his share, was valid, he having died childless.

Appeal from part of a decree of surrogate’s court of Kings county.

*Howard R.*Bayne, for app’It; *Henry W.*Gaines, for resp’ts.

Barnard, P. J.

The inventory shows a large estate. The trustees rented an office in Mew York for $400 a' year, half of which was charged against the estate and allowed. The estate was wholly personal, and there is no dispute as to the facts. The charge -was fair therefor in amount, and it was just that the estate should pay the amount allowed.

The compromise with the Simmons Manufacturing Company was right. An application to the surrogate for leave to compromise would have been the safest way, but the other creditors of the company all took the same proportion in their several claims. The scrip in question was not considered of full value when the inventory was taken, as no price was put upon it by the appraisers. The executors acted under the advice of counsel, and the. surrogate gives his approval to the settlement by the decree itself. *1008He states in his opinion that if the case made had been presented to him before the compromise he would have granted his approval. The testator gave ono-half of the income of his estate to his widow for life, and the remainder of the income either directly to or to be applied for the benefit of his five children. John M. Whittemore, Jr., was one of these children, and he died while his mother’s life estate was outstanding. The will gave an absolute gift to her of one-fifth of the *corpus*of the estate after the life estate was ended. The will contained a clause that if any of his children should die before the testator, or before the decease of his said wife, the net income of his share to surviving children. John M. Whittemore died childless, leaving a will by which all his estate was disposed of. The gift of the residue of the estate was absolute and not contingent It vested upon the death of the testator. The gift of the one-fifth of the income during the mother’s life was also absolute and vested at once. It was liable to divest if he died leaving children. This event did not happen. John M. Whittemore died with a full title to one-fifth of the entire estate, with the right of the testator’s widow to have one-half of the income therefrom during her life. It follows that the appellant has no interest in the income on John M. Whittemore, Jr.’s share during the widow’s life. If John M. Whittemore had lived, he would have taken the income. If he had died leaving children, they would take the income on the father’s fifth. If he died without child or children, the right to the income during the widow’s life would attach to the title to the legacy itself, and that passed by the will of John M. Whittemore, Jr.

The decree of the surrogate should therefore be affirmed, with costs.

Dykmajst and Pratt, JJ., concur