Ingraham, J.:
The first above-entitled action was brought for a construction of the1 9th clause of the will of William D. Thompson, deceased. The testa[459] tor died in the year 1874, unmarried, and without issue. He left a large estate, and when the will was made had no brother or sister living. He had, however, certain nephews and nieces, the children of a deceased brother, who, upon his decease, would be his heirs at law, and it was these nephews and nieces and his grandnephews and grandnieces that were to receive his estate. The testator’s general scheme seems to have been to give a life interest in his property to his nephews and nieces, the fee of the estate upon the death of his nephews and nieces to go to his grandnephews and grandnieces. A consideration of the whole will from which the intention of the testator is to he determined indicates that it was the grandnephews and grandnieces that he intended should ultimately have his property. Most careful provisions were made to prevent his estate from being dissipated by his nephews and nieces. His nephews and nieces were to receive an income for.their support during their lives, and upon the termination of these life estates the corpus of the estate was to be distributed between those who occupied to him the relation of grandnephews and grandnieces; and the will is peculiar in that these grandnephews and grandnieces are not named as individuals when disposing of the ultimate remainder of the estate, but where such an ultimate • remainder is disposed of the disposition is to his grandnephews and grandnieces, indicating that it was the class who occupied that relation that he had constantly in mind when he designated the persons to whom the estate should ultimately go rather than any particular individual. There were several clauses in this will creating separate trusts for persons specifically named. The will shows that the testator had in mind the necessities and claims upon his bounty of each of his nephews and nieces. The provision añade for them was not equal, and he evidently considered the claims and necessities of each and determined what portion of his estate should be applied to their use, but when he comes to direct the distribution of the remainder of the trust estates provided for by the 9th -clause of the will he seems to be guided by a different principle, intending substantial, equality as between the grandnephews and grandnieces, directing that this property be distributed among them in equal shares. It is his grandnephews and grandnieces as a ■class, those generally who occupied that relation to him,, that he makes the object of his bounty, not any particular grandnephew or [460] grandniece to whom lie desires that this portion of his property should go. In this connection attention should be called to the 12th clause of the will where provision is made for the death of either of his nephews,or. nieces during his lifetime.. Considering, therefore, this general intention of the testator, we turn to the 9th clause of the. will, which is the one to be construed in this action.
By this clause, the testator disposes of apiece of property, No. 139 Broadway, New York .city, of considerable value. He gives a life estate in this property to his nephew, John B. Thompson, and upon his death lie gives the property to his executors in trust to receive the income thereof during the life of John C. Thompson, the son of John. B. Thompson, and to apply the same as follows : “ One-quarter to the use of the said John C. Thompson and one-quarter to the use of his-mother, the wife of the said John B. Thompson,” and in case of her death during the said term, then to devote the one-quarter of the income payable to her to the use of the said John C. Thompson and the other half of the said income “to apply during the whole of said term to .the usé of all the other grandnieces and grandnephews of mine in equal- shares, the issue of any deceased taking, their parents’" share.” JohnC. Thompson, the grandnephew of the testator, was-thus given either a quarter or a half of the income of this property-after the death of 'his father this is the single instance in the will in. which a grandnephew or a grandniece is mentioned by name, and this trust was to continue during the life of John C. Thompson.. There could be during that time no sale of this property. It was to be held in trust by the trustees. The. rents and profits were to-be collected by them. One-half of such income was to be paid to-John G. Thompson arid his mother. The other half of this income-the trustees were directed to apply during the whole of such term, to “ the use of all ” the other grandnieces .and grandnephews in - equal shares, and then, having in mind a contingency that might happen, viz., that one or more of these grandnephews and grandnieces should, die during the continuance of the trust, the testator directs that if "the grandniece or grandnephew so dying should leave issue that the income that would be payable to the one so-dying should be paid to his or her issue. .
That this direction to apply this income “ to the use of ” his grandnephews and grandnieces was not a vested gift of income to any par[461] ticular individual seems clear. It was to these grandnieces and grandnephews as a class, those that occupied that relation to him when the income was to be distributed, that he intended should receive such income; and not the executor or legatee of any grandnephew or .grandniece dying during the continuance of the trust without issue-. The element of survivorship was in his mind in defining the persons to whom this income should be payable. If he had understood that such income could be disposed of by the last will and testament of either ■of his grandnieces or grandnephews, the provision for a devolution of the income upon the death of either of them leaving issue would have been quite unnecessary. That was only essential because, as the testator understood that he had provided that this income should go to the class, or to those occupying the position of grandnephew or grandniece during the continuance of the trust, it was necessary, if he wished that in case either of them died leaving issue the issue should stand in the parents’ place, that provision should be made for that contingency.
In this connection it is important to consider the language used in giving this income. The trustees are directed to “ apply during the whole of said term to the use of all the other grandnieces and grandnephews of mine in equal shares.” Here is not a direct gift of the income to each grandniece and grandnephew living at the time the trust estate commences, but a direction to apply the income to the use of the grandniece and grandnephew during the whole term that the trust was to continue. Certainly a payment of a portion of this income to the legatees or next of kin of a grandnephew or grandniece would not be applying the income to the use of the grandnephews and grandnieces. This is an entirely different provision from the usual provision “ to pay to ” or other similar term used when an income is specifically given to a beneficiary named, and this direction had no relation to the time of the testator’s death, because the trust estate from which this income was to be received was to commence, not upon his death, but upon the death of his nephew to whom he had given a life estate in the property, and the direction to the trustees to apply one-half of the income of this property to his grandnephews and grandnieces was, by the express provisions of the will, to continue during the whole of the trust term.
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Ingraham, J.:
The first above-entitled action was brought for a construction of the1 9th clause of the will of William D. Thompson, deceased. The testa[459] tor died in the year 1874, unmarried, and without issue. He left a large estate, and when the will was made had no brother or sister living. He had, however, certain nephews and nieces, the children of a deceased brother, who, upon his decease, would be his heirs at law, and it was these nephews and nieces and his grandnephews and grandnieces that were to receive his estate. The testator’s general scheme seems to have been to give a life interest in his property to his nephews and nieces, the fee of the estate upon the death of his nephews and nieces to go to his grandnephews and grandnieces. A consideration of the whole will from which the intention of the testator is to he determined indicates that it was the grandnephews and grandnieces that he intended should ultimately have his property. Most careful provisions were made to prevent his estate from being dissipated by his nephews and nieces. His nephews and nieces were to receive an income for.their support during their lives, and upon the termination of these life estates the corpus of the estate was to be distributed between those who occupied to him the relation of grandnephews and grandnieces; and the will is peculiar in that these grandnephews and grandnieces are not named as individuals when disposing of the ultimate remainder of the estate, but where such an ultimate • remainder is disposed of the disposition is to his grandnephews and grandnieces, indicating that it was the class who occupied that relation that he had constantly in mind when he designated the persons to whom the estate should ultimately go rather than any particular individual. There were several clauses in this will creating separate trusts for persons specifically named. The will shows that the testator had in mind the necessities and claims upon his bounty of each of his nephews and nieces. The provision añade for them was not equal, and he evidently considered the claims and necessities of each and determined what portion of his estate should be applied to their use, but when he comes to direct the distribution of the remainder of the trust estates provided for by the 9th -clause of the will he seems to be guided by a different principle, intending substantial, equality as between the grandnephews and grandnieces, directing that this property be distributed among them in equal shares. It is his grandnephews and grandnieces as a ■class, those generally who occupied that relation to him,, that he makes the object of his bounty, not any particular grandnephew or [460] grandniece to whom lie desires that this portion of his property should go. In this connection attention should be called to the 12th clause of the will where provision is made for the death of either of his nephews,or. nieces during his lifetime.. Considering, therefore, this general intention of the testator, we turn to the 9th clause of the. will, which is the one to be construed in this action.
By this clause, the testator disposes of apiece of property, No. 139 Broadway, New York .city, of considerable value. He gives a life estate in this property to his nephew, John B. Thompson, and upon his death lie gives the property to his executors in trust to receive the income thereof during the life of John C. Thompson, the son of John. B. Thompson, and to apply the same as follows : “ One-quarter to the use of the said John C. Thompson and one-quarter to the use of his-mother, the wife of the said John B. Thompson,” and in case of her death during the said term, then to devote the one-quarter of the income payable to her to the use of the said John C. Thompson and the other half of the said income “to apply during the whole of said term to .the usé of all the other grandnieces and grandnephews of mine in equal- shares, the issue of any deceased taking, their parents’" share.” JohnC. Thompson, the grandnephew of the testator, was-thus given either a quarter or a half of the income of this property-after the death of 'his father this is the single instance in the will in. which a grandnephew or a grandniece is mentioned by name, and this trust was to continue during the life of John C. Thompson.. There could be during that time no sale of this property. It was to be held in trust by the trustees. The. rents and profits were to-be collected by them. One-half of such income was to be paid to-John G. Thompson arid his mother. The other half of this income-the trustees were directed to apply during the whole of such term, to “ the use of all ” the other grandnieces .and grandnephews in - equal shares, and then, having in mind a contingency that might happen, viz., that one or more of these grandnephews and grandnieces should, die during the continuance of the trust, the testator directs that if "the grandniece or grandnephew so dying should leave issue that the income that would be payable to the one so-dying should be paid to his or her issue. .
That this direction to apply this income “ to the use of ” his grandnephews and grandnieces was not a vested gift of income to any par[461] ticular individual seems clear. It was to these grandnieces and grandnephews as a class, those that occupied that relation to him when the income was to be distributed, that he intended should receive such income; and not the executor or legatee of any grandnephew or .grandniece dying during the continuance of the trust without issue-. The element of survivorship was in his mind in defining the persons to whom this income should be payable. If he had understood that such income could be disposed of by the last will and testament of either ■of his grandnieces or grandnephews, the provision for a devolution of the income upon the death of either of them leaving issue would have been quite unnecessary. That was only essential because, as the testator understood that he had provided that this income should go to the class, or to those occupying the position of grandnephew or grandniece during the continuance of the trust, it was necessary, if he wished that in case either of them died leaving issue the issue should stand in the parents’ place, that provision should be made for that contingency.
In this connection it is important to consider the language used in giving this income. The trustees are directed to “ apply during the whole of said term to the use of all the other grandnieces and grandnephews of mine in equal shares.” Here is not a direct gift of the income to each grandniece and grandnephew living at the time the trust estate commences, but a direction to apply the income to the use of the grandniece and grandnephew during the whole term that the trust was to continue. Certainly a payment of a portion of this income to the legatees or next of kin of a grandnephew or grandniece would not be applying the income to the use of the grandnephews and grandnieces. This is an entirely different provision from the usual provision “ to pay to ” or other similar term used when an income is specifically given to a beneficiary named, and this direction had no relation to the time of the testator’s death, because the trust estate from which this income was to be received was to commence, not upon his death, but upon the death of his nephew to whom he had given a life estate in the property, and the direction to the trustees to apply one-half of the income of this property to his grandnephews and grandnieces was, by the express provisions of the will, to continue during the whole of the trust term.
[462] When we'look at the distribution that the testator directs upon, the termination of the trust, we see that the same intention pervades the disposition of the remainder. He makes no present bequest to any grandnephew or grandniece, but he directs his trustees to sell and to distribute the proceeds among liis grandnephews and grandnieces, and. then follows the same provision as to the disposition of the proceeds of this sale as was contained in the disposition of the income, that the issue of any grandniece or grandnephew dying before the time when this disposition was to be made was to take the share of the parent dying. Thus, it seems to me, that to hold that either one of these grandnephews and grandnieces is vested with an interest in these rents or in the remainder of this property which he could convey or dispose of by will would be to defeat the clear intention of the testator as to those whom he intended should be benefited by the income of this property and by the distribution of the remainder upon the termination of the trust—an intention that is expressed in the Whole will and which, it seems to me, is clearly crystallized in this clause now under consideration. In determining the intention of a testator, as has been often remarked, reference to decided cases is generally of but little advantage, as in each case the circumstances existing at the time of the making of the will and the language used by the testator are controlling in determining his intention, but I think the authorities bear out the construction that I have indicated. Clark v. Cammann (160 N. Y. 323) sustains this conclusion. There the sum of $10,000 was left to the use of the testator’s niece for and during her natural life, “ and from and immediately after her decease, upon trust,- to pay over and divide-the said principal sum of $10,000 unto and among all her children, share and share alike, and to their lawful representatives forever, as tenants in common, per capita, the issue of any such child who may then be ■ dead to take his or her deceased parent’s share.” In that case the court, after discussing Matter of Brown (154 N. Y. 313), said: “ In the will we now have under consideration, the provision materially differs. ‘ And from and immediately after her decease, upon trust, to pay over and divide the said principal sum of $10,000' unto and among all her children, share and share alike.’ Had the testator-stopped here we should have regarded this will to. be in snb- . stance the same as in the Brown case, and should not have hesitated [463] to hold that the legacies vested in the sonsbut the testator procéeds, ‘ and to their lawful representatives forever, as tenants in common, per capita, the issue of any such child who may then be dead to take his or her deceased parent’s share.’ Here we have an express provision of the will which seems to negative the claim that the estate vested in the sons. The testator apparently understood'that it might happen that the sons would not survive his widow or their mother, and, therefore, undertook to provide for such a contingency by giving the estate to the issue of the sons in case of their death. If the estate was intended to vest in the sons, then, upon the death of either of them, the estate would pass to their executors or administrators and might never reach the issue of such deceased child; but here we find, seemingly, an intention disclosed that the issue of the deceased child should take rather than the executors or administrators. It is contended that the words, ‘ and to their lawful representatives forever’ are used as words of succession or substitution, and not of limitation. We are aware that the words 6 lawful representatives ’ are often intended to mean executors and administrators, but to so construe the words in this case would not only render meaningless the provision which .follows, but would, as we have shown, be in cdnflict with the testator’s evident intention of having the estate go to the issue of the sons should they die during the lifetime of their mother.” And the court then continues : “ The view that we entertain of this will is, that the testator intended the estate to go to the issue of the sons of Mrs. Gillespie in case of the death of either during the existence of the life estate. N o issue of these sons were in being at the death of the testator, and it was uncertain as to whether they would ever have issue. The remainder was, therefore, contingent and not vested, for the reason that the persons to whom, or the event upon which the estate was limited to take effect, remained uncertain until the termination of the life estate. Futurity was annexed to the substance of the gift and the vesting was suspended.” In Matter of Brown (supra), in which it was held that the estate vested, the court held that it was clearly the intention to give the estate absolutely to the testator’s grandchildren without words of limitation as to the survivors, but subject to the outstanding life estates ; but in this case we have no such intention expressed, but we have what seems to me to be a contrary intention.
[464] I think also that this conclusion is further sustained by the case of Fargo v. Squiers (154 N. Y. 250); McGillis v. McGillis (Id. 532) and Matter of Baer (147 id. 348). In the latter case the court says : “ Where final division and distribution is to be made among a class the benefits of the will must be confined to those persons who come within the appropriate category at.the date when the distribution or division is directed'to be made. * * * In such cases the gift is contingent upon survivorship, and if it vests at all before the date of distribution, it is subject to be divested by the death before that time of a person presumptively entitled to share in the distribution. While this rule is sometimes made to yield to indications of a contrary intent in the will, yet it may be said, to be a general rule and there 'is nothing to be found in the will in question to prevent its full application7’ As was said in the case of Delaney v. McCormack (88 N. Y. 174, 183): “ The case, therefore, falls within the rule that where the gift is money, and the direction for the conversion absolute the legacy given to a class of persons vests in those who answer the ■description. * * * Adding to these considerations the incongruity of a construction which would include James himself among the next of kin in the testator’s mind and intention, we are entirely ■clear that the courts below correctly decided that the next of kin entitled were those who answered that description at the date of the ■distribution.” This incongruity would exist in this case, for if this legacy vested in John 0. Thompson, who was to have a quarter or half of the income during his life, he would be entitled to a distributive share of the proceeds of the property although such distributive, share was not to come into being until after his death.
A further discussion of the cases upon this question would seem to.be unnecessary. As before stated, each particular will has to be construed by a consideration of its own provisions and the'conditions existing at the time "the will was made. Giving to this provision of the will most careful consideration, we are forced to thé conclusion that it was the intention of the testator that this half of the income to be distributed among his grandnephews and grandnieces was to be distributed to such of them as were in being when the distribution was to be made1, except that in case of the death of either. grandniece or grandnephew before a final distribution leaving issue, the parent’s share- both of the income and principal was [465] to be paid to the issue, but in case of the death of either of the grandnephews or grandnieces during the continuance of the trust without issue the half of the income of the property and the principal was to be divided among the survivors.
It follows.that the judgment appealed from should be modified in conformity with the views herein expressed, and as modified affirmed, with costs to the appellants and the plaintiff to be paid out of the estate.
Van Brunt, P. J., and McLaughlin, J., concurred; Rumsey and Hatch, JJ., dissented.