In re the Judicial Settlement of the Account of Denham , 61 Misc. 211 ( 1908 )

Ketcham, S.

The will requiring construction contains al residuary devise in trust for the life of the testator’s wife, with a provision that, if necessary, the principal of the trust estate may be used for her maintenance and support. The material expressions following the devise in trust are as follows:

“ Fourth. Upon the death of my said wife, and after the payment of her lawful debts and funeral expenses, I direct that all my estate then remaining, including any accumulations which may be thereon, shall be converted into money or its equivalent by my executor then surviving and disposed of as follows:

“ To Sarah Johnston, who now resides in Englewood, New Jersey, and who is a, niece of my wife, I give and bequeath the sum of Five 'hundred and ninety-five dollars.

“ To my nephew and namesake John Officer hereinbefore named I give and bequeath the sum of Five hundred dollars.” There is, then, a gift of all the “ residue ” of the estate to six children, to be divided among them equally; but, in the event of the death of any one of them, to be divided among the survivors of the said six children. It is then provided as follows:

“ I hereby further declare and direct that none of the legacies hereinbefore bequeathed shall vest in the respective legatees named until after the decease of my said wife. * * * Ini the event However that either of said six children die prior to' the time fixed for the final distribution of my estate leaving lawful issue him or her surviving, said issue shall be entitled to and! shall have the share such deceased parent would have taken if iving.”

The legatee Sarah Johnston, and the wife of the testator died in the order in which they are named. The question is, whether or not the right of the legatee Sarah Johnston under the will yested upon the death of the testator; or whether, upon her decease prior to that of the widow, her legacy lapsed 'and returned to the general estate.

The will specifically, and with ¡apparent intelligence and intention, determined that the legacy to Sarah Johnston should not vest until after the decease of the wife. This expression was extended to all of the legatees, with the significant exception that, in the event of the death of any of the six children, the survivors should take, failing issue of the deceased child, and the issue, if any, should take. It is impossible, to determine that the language of the will forbidding that a legacy should vest until after the death of the wife has any other 'than its legal meaning.

Let decree be submitted accordingly.

Decreed accordingly.