In re the Construction of the Will of Wittner , 85 N.Y.S.2d 404 ( 1948 )

Collins, S.

Petitioner requests a construction of the second article of decedent’s will and also a direction that the property bequeathed in that article be delivered forthwith to the petitioner as legatee. The provision in question contains a bequest of jewelry to petitioner subject to stated conditions. The will directs the executors to retain possession-of the property until petitioner attains the age of thirty-five years. That date has not arrived. The will contains a gift over to be effective in the event petitioner shall die before reaching age thirty-five and also imposes a condition subsequent which can be breached only after petitioner shall come into possession of the legacy.

Subject to certain limitations a -testator may restrict use or enjoyment by a devisee or legatee, and a provision postponing possession may not be rejected as an ineffectual attempt to cut down an unqualified gift (2 Davids’ New York Law of Wills, § 815). Where a legacy is absolute, a subsequent direction for payment on the happening of a named event does not defer vesting but only postpones payment (Bushnell v. Carpenter, 92 N. Y. 270; Loder v. Hatfield, 71 N. Y. 92; Matter of Staats, 272 App. Div. 139; Matter of Fisher, 159 Misc. 190; Matter of Purdy, 133 Misc. 217; Matter of Ettenheimer, 133 Misc. 717; Matter of Moses, 86 Misc. 625; Matter of Ebbets, 46 N. Y. S. 2d 828). When there is a gift over or other alternative disposition, title vests in the beneficiary subject to being divested by the failure or happening of the contingency. (Matter of Vanderbilt, 172 N. Y. 69, 72; Matter of Schmitt, 137 App. Div. 286; Matter of Balsamo, 136 Misc. 113.)

The court holds that title to the property has vested in petitioner subject to being divested by her death without issue prior to reaching the age of thirty-five but the executors have a right to possession of such jewelry until petitioner reaches the specified age.

Submit decree on notice construing the will accordingly.