In re McNary

Crapser, J.

This is an appeal by the petitioner from a decree of the Surrogate’s Court of Albany county dismissing the petition of the petitioner and determining that the petitioner is not entitled to any share of the estate of James E. Weaver.

James E. Weaver died leaving a last will and testament which was admitted to probate by the surrogate of Albany county on June 21, 1912.

After the payment of his debts and funeral expenses the testator gave to his wife the use of his house No. 37 Ten Broeck street, Albany, N. Y., for her residence as long as she should live or until she should surrender and remove from said house as her residence.

At her death or removal the premises were to be sold and the proceeds added to and made a part of his residuary estate.

In the third clause of his will he gave to his trustees $50,000 in trust, the income to be paid to his wife so long as she should live in and occupy the house as her residence.

In case of her removal from the house, the trustees were directed to reduce the trust fund above mentioned to $25,000, the income from which was to be paid to his wife as long as she should live and at her death the principal of such fund should “ revert to and become part of my residuary estate.”

The thirteenth clause of his will is the subject of controversy in this proceeding. It is as follows:

“ 13. All the rest, residue and remainder of my estate, I give, devise and bequeath to my sisters, Mrs. Jane F. Clapp, of Albany, N. Y., Mrs. Melissa A. Fonda, of Weehawken, N. J., and Mrs. Louise A. Courtney, of Albany, N. Y., to be divided between them share and share alike; the child or children of a deceased sister to take the share the mother would be entitled to.”

All the residuary legatees and devisees survived the testator and all received during their lifetime all their respective shares of said residue in full except the $50,000 trust fund and the proceeds from the sale of the house and contents.

The widow of the testator is living but has removed from and surrendered said premises and contents, which were sold for $4,500, which sum has been distributed, but of which appellant received no part.

Subsequent to the testator’s death Jane F. Clapp died leaving a will by which the residue of her estate was devised and bequeathed to her two daughters, Margaret L. Agar and Emma F. McNary, equally. Thereafter Emma F. McNary died, devising and bequeathing the residue of her estate to her son, Augustus J. McNary, and her husband, Charles H. McNary, equally. After the death of Emma F. McNary her husband, Charles H. McNary, married the appellant, Effie M. McNary, and thereafter died leaving a will by which the residue of his estate was devised and bequeathed to her.

The appellant claims to be entitled to an undivided one-twelfth interest in said trust fund at the death of the widow of James E. Weaver, by virtue of the devises and bequests of the residues under the wills of Jane F. Clapp, Emma F. McNary and Charles H. McNary, and for the same reason, that she is entitled now to one-twelfth of the proceeds of the sale of said house and contents.

The rule relied upon by the petitioner is set forth in section 40 of the Real Property Law as follows:

“ A future estate is either vested or contingent. It is vested, when there is a person in being, who would have an immediate right to the possession of the property, on the determination of all the intermediate or precedent estates.

“ It is contingent while the person to whom or the event on which it is limited to take effect remains uncertain.”

The rule is equally applicable to remainders of personal property. (Stringer v. Young, 191 N. Y. 157.)

The test as to vesting was stated in Moore v. Littel (41 N. Y. 66) as follows: “ If you can point to a man, woman or child who, if the life estate should now cease, would, eo instanti et ipso facto, have an immediate right of possession, then the remainder is vested.”

In construing a will, if the language is clear and definite, the will speaks for itself. If, on the other hand, the intent of the testator is not clear from the language of the will, it is proper to take into consideration all the attending circumstances surrounding the will.

The language of this will was clear and unambiguous. The residue was bequeathed and devised to the testator’s three sisters, all of whom survived him, and not to the class. At testator’s death the gift to them was absolute because such residue vested in them immediately. The words of the will denote an absolute gift. There is no direction to divide and pay over, no contingency of any kind. The mere postponement of the enjoyment of a portion of such residue did not prevent the vesting thereof.

The law favors a vesting of estates and the same will be held to be vested at the death of the testator, unless the contrary direction is clearly expressed. (Stokes v. Weston, 142 N. Y. 433.)

The words, “ the child or children of a deceased sister to take the share the mother would be entitled to,” added to the words of disposition of the residue, do not affect the fact of vesting at the testator’s death. A devise and bequest to one person, and in the event of his death to another, means that the contingency referred to is a death during the lifetime of the testator.

The gift of such residue having been absolute and vested, the interest of Jane F. Clapp passed under her will and under the will of Emma F. McNary and Charles H. McNary to the appellant. Remainders may be disposed of, devised and bequeathed by the persons entitled thereto, before being received by them. (Matter of Chittick, 243 N. Y. 304.)

The decree should be reversed on the law, with costs to the appellant payable out' of the estate, and the matter remitted to the Surrogate’s Court for a decree in accordance with this opinion.

McNamee, Bliss and Heffernajst, JJ., concur; Hill, P. J., concurs in a separate memorandum.