Van Kirk, J.:
This matter comes to this court on a stipulated case, for the construction of the will of Jonathan G. Witherbee. He had been divorced in January, 1869, by his wife Charlotte S. By written contract he had assured her an annuity of $8,000, to secure the payment , of which he agreed to deposit securities with a trustee named in the contract. This he had not done at the time of his death in 1875. He left a will dated in March 1869, three months after the date of the annuity contract. In 1882 his executors, as instructed in his will, deposited $200,000 par value, United States government bonds, the income from which was to pay the annuity. No interest of Charlotte S. Witherbee is involved here. She survived, however, until 1921.
Jonathan G. Witherbee died leaving him surviving his second wife, Sophie G., whom he married in 1869, their daughter Mary, afterwards Mary Witherbee Foote, and two children of the first marriage, Frank S. and Florence, now Florence W. Peaslee. His estate, except the $200,000 annuity fund, had been distributed share and share alike to these four survivors under the terms of his will, as follows: “ I give, devise and bequeath all the rest, residue and remainder of my Estate both real and personal, legal or equitable, and wheresoever situated, equally to the said Sophie, and my children Frank S. Witherbee and my daughter Florence Witherbee, and any children that may be born to me by the said Sophie so that each one shall have an equal share, and so that Sophie and each of our children and my children' Frank and Florence shall each have the same amount, and so that in the event that I shall have no child or children by the said Sophie, then the said residue and remainder is to be divided equally between the said Sophie, Frank & Florence-or the survivors, in case of the decease of one or more of them before my decease; but in case any of my children shall die, leaving a child or children, the share of said child shall descend to the child or children of such deceased.” This clause, with the facts and relationships as they existed when Jonathan G. died, disposed of the entire residuum of his estate including the annuity fund; such residuum vested at his death in his widow Sophie G. and the three children in equal [331]*331shares. (Nelson v. Russell, 135 N. Y. 137; Connelly v. O’Brien, 166 id. 406.) The whole estate except this annuity fund was paid over in 1892 to the legatees under this construction of the will.
It is claimed, however, by Mrs. Peaslee that while these bonds are a part of the residuum, they are disposed of in a different manner under the provision of the will, which, after speaking of the annuity fund and agreement, provides: “ Now it is my wish and will that said securities shall not be divided or distributed until the payment of said annuity shall cease, but they shall be kept by my said Executors undivided until that time and then be divided and distributed by said Executors to the legatees and devisees entitled under the provisions of this Will to the residue and remainder of my Estate as hereinbefore provided. This provision is not intended to change the distribution of said securities or make any difference between that property and the other portion of my Estate hereinbefore disposed of under the general provisions as to the rest, residue and remainder of my Estate, except that no division is to take place until the said annuity shall cease and then they are to be divided among those then living entitled thereto, under the provisions of this Will.” We find here no words of gift, but words simply directing a distribution of that which has before been given under the preceding part of the will which disposed of the residue and remainder of testator’s estate. We find also two positive injunctions: First, that these securities shall be distributed as the remainder of the estate had been distributed; and second, to strengthen this, these words shall not be construed to change the distribution of said securities from the distribution that had been made of the residue and remainder. The intention is thus plainly expressed that these securities are not given in any sense as a fund separate from the residue, but are at all times considered a part of the residue. They had not been set apart by the testator during Ms lifetime and after Ms death the annuity to Charlotte was paid from the general income of the estate. The residue of the estate was much greater, however, than the amount of these securities; and, in order that there might be a distribution of the bulk of the remainder, the testator authorized the executors to set apart sufficient securities to provide an income for paying the annuity. But the words “ then living ” are seized upon as a basis for the contention that these securities, in the face of the positive injunction of the testator, must be distributed otherwise than the bulk of the residue had been distributed, First we observe that the exception is simply that no distribution shall be made until the said annuity shall cease. There is no expression here qf an Intent that the gift is not made until [332]*332that event happens. The expression, to be divided among “ those then living entitled thereto, under the provisions of this Will,” that is, under the clause disposing of the residue, contains no word of gift and the words “ those * * * entitled thereto ” mean those who own it, not those who will then take under the residuary clause. These securities could not at that time be distributed to those deceased; they could only be delivered to the living and those then living entitled thereto are the residuary legatees, or, if any be dead, those then living who were entitled to a portion under a deceased residuary legatee. The words directing a distribution of property sometimes have been construed to imply a gift; but never where the gift is otherwise made. To construe this clause of the will as containing a gift as it was made in the residuary clause, but to take effect for the benefit of. those living at the time of the death of Charlotte, instead of the death of the testator, seems to us to be making a new will, which the courts may not do. We think force may not fairly be given to the words “ then living ” which would nullify the earlier expressions in this same clause declaring the testator’s positive intention that these securities should go as the residue of his estate had gone; that is, that they were disposed of as a part of the residue. There is no clear, unequivocal expression of intent to cut down or change those positive injunctions. (Tillman v. Ogren, 227 N. Y. 495, 505.) The law favors such a construction of a will as will avoid the disinheritance of remaindermen who may happen to die before the determination of the precedent estate. (Connelly v. O’Brien, supra.) The defendant Peaslee takes the position that this clause of the will last quoted gives to her all of these securities, inasmuch as she was the only residuary legatee named in the will living at the time of the death of Charlotte. Should we adopt this construction Mrs. Peaslee alone stands in the way of intestacy as to this fund. Had she died, as had the others in whom, under the earlier provisions of the will, the residue vested at testator’s death, this fund would be undisposed of if the court should adopt her construction.
We, therefore, conclude, as above stated, that the title to these securities vested when the title to the residue and remainder of the estate vested, namely, at the death of the testator, and that the distribution of these securities only was deferred.
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Van Kirk, J.:
This matter comes to this court on a stipulated case, for the construction of the will of Jonathan G. Witherbee. He had been divorced in January, 1869, by his wife Charlotte S. By written contract he had assured her an annuity of $8,000, to secure the payment , of which he agreed to deposit securities with a trustee named in the contract. This he had not done at the time of his death in 1875. He left a will dated in March 1869, three months after the date of the annuity contract. In 1882 his executors, as instructed in his will, deposited $200,000 par value, United States government bonds, the income from which was to pay the annuity. No interest of Charlotte S. Witherbee is involved here. She survived, however, until 1921.
Jonathan G. Witherbee died leaving him surviving his second wife, Sophie G., whom he married in 1869, their daughter Mary, afterwards Mary Witherbee Foote, and two children of the first marriage, Frank S. and Florence, now Florence W. Peaslee. His estate, except the $200,000 annuity fund, had been distributed share and share alike to these four survivors under the terms of his will, as follows: “ I give, devise and bequeath all the rest, residue and remainder of my Estate both real and personal, legal or equitable, and wheresoever situated, equally to the said Sophie, and my children Frank S. Witherbee and my daughter Florence Witherbee, and any children that may be born to me by the said Sophie so that each one shall have an equal share, and so that Sophie and each of our children and my children' Frank and Florence shall each have the same amount, and so that in the event that I shall have no child or children by the said Sophie, then the said residue and remainder is to be divided equally between the said Sophie, Frank & Florence-or the survivors, in case of the decease of one or more of them before my decease; but in case any of my children shall die, leaving a child or children, the share of said child shall descend to the child or children of such deceased.” This clause, with the facts and relationships as they existed when Jonathan G. died, disposed of the entire residuum of his estate including the annuity fund; such residuum vested at his death in his widow Sophie G. and the three children in equal [331]*331shares. (Nelson v. Russell, 135 N. Y. 137; Connelly v. O’Brien, 166 id. 406.) The whole estate except this annuity fund was paid over in 1892 to the legatees under this construction of the will.
It is claimed, however, by Mrs. Peaslee that while these bonds are a part of the residuum, they are disposed of in a different manner under the provision of the will, which, after speaking of the annuity fund and agreement, provides: “ Now it is my wish and will that said securities shall not be divided or distributed until the payment of said annuity shall cease, but they shall be kept by my said Executors undivided until that time and then be divided and distributed by said Executors to the legatees and devisees entitled under the provisions of this Will to the residue and remainder of my Estate as hereinbefore provided. This provision is not intended to change the distribution of said securities or make any difference between that property and the other portion of my Estate hereinbefore disposed of under the general provisions as to the rest, residue and remainder of my Estate, except that no division is to take place until the said annuity shall cease and then they are to be divided among those then living entitled thereto, under the provisions of this Will.” We find here no words of gift, but words simply directing a distribution of that which has before been given under the preceding part of the will which disposed of the residue and remainder of testator’s estate. We find also two positive injunctions: First, that these securities shall be distributed as the remainder of the estate had been distributed; and second, to strengthen this, these words shall not be construed to change the distribution of said securities from the distribution that had been made of the residue and remainder. The intention is thus plainly expressed that these securities are not given in any sense as a fund separate from the residue, but are at all times considered a part of the residue. They had not been set apart by the testator during Ms lifetime and after Ms death the annuity to Charlotte was paid from the general income of the estate. The residue of the estate was much greater, however, than the amount of these securities; and, in order that there might be a distribution of the bulk of the remainder, the testator authorized the executors to set apart sufficient securities to provide an income for paying the annuity. But the words “ then living ” are seized upon as a basis for the contention that these securities, in the face of the positive injunction of the testator, must be distributed otherwise than the bulk of the residue had been distributed, First we observe that the exception is simply that no distribution shall be made until the said annuity shall cease. There is no expression here qf an Intent that the gift is not made until [332]*332that event happens. The expression, to be divided among “ those then living entitled thereto, under the provisions of this Will,” that is, under the clause disposing of the residue, contains no word of gift and the words “ those * * * entitled thereto ” mean those who own it, not those who will then take under the residuary clause. These securities could not at that time be distributed to those deceased; they could only be delivered to the living and those then living entitled thereto are the residuary legatees, or, if any be dead, those then living who were entitled to a portion under a deceased residuary legatee. The words directing a distribution of property sometimes have been construed to imply a gift; but never where the gift is otherwise made. To construe this clause of the will as containing a gift as it was made in the residuary clause, but to take effect for the benefit of. those living at the time of the death of Charlotte, instead of the death of the testator, seems to us to be making a new will, which the courts may not do. We think force may not fairly be given to the words “ then living ” which would nullify the earlier expressions in this same clause declaring the testator’s positive intention that these securities should go as the residue of his estate had gone; that is, that they were disposed of as a part of the residue. There is no clear, unequivocal expression of intent to cut down or change those positive injunctions. (Tillman v. Ogren, 227 N. Y. 495, 505.) The law favors such a construction of a will as will avoid the disinheritance of remaindermen who may happen to die before the determination of the precedent estate. (Connelly v. O’Brien, supra.) The defendant Peaslee takes the position that this clause of the will last quoted gives to her all of these securities, inasmuch as she was the only residuary legatee named in the will living at the time of the death of Charlotte. Should we adopt this construction Mrs. Peaslee alone stands in the way of intestacy as to this fund. Had she died, as had the others in whom, under the earlier provisions of the will, the residue vested at testator’s death, this fund would be undisposed of if the court should adopt her construction.
We, therefore, conclude, as above stated, that the title to these securities vested when the title to the residue and remainder of the estate vested, namely, at the death of the testator, and that the distribution of these securities only was deferred. It may be noted that, under the construction contended for by Mrs. Peaslee, Mrs. Miller, the only child of the son, Frank S., would take no part of the fund.
We pass then to the interest of Mrs. Miller. How does she take a share in this annuity fund? She maintains that she can [333]*333take an interest under the clause of the will first above quoted, which gives the share of a deceased child to the surviving issue of that child. But this clause does not aid her as to this fund; it simply means that, if her father, Frank S., had died before his father, the testator, Mrs, Miller would have taken her father’s share,. and in no other manner could she get an interest in the estate through this provision of the will. Her father survived the testator and so she takes no interest in this fund, except because it vested in her father at the time of the testator’s death. We think she did so take and is “ entitled ” to her share of the fund.
If we are correct thus far, it follows that one-half of this fund passes to the estate of Mary Witherbee Foote, the daughter by the second marriage. Both Sophie G. and the daughter Mary survived Jonathan G., and each took one-quarter of the residue of the estate. Sophie G. Witherbee died leaving her estate to her daughter Mary, and Mary died in 1896, leaving her estate to her husband, Wallace T. Foote, Jr. By this course the estate of Wallace T. Foote, Jr., became the owner of and u entitled to,” one-half of this annuity fund.
This construction'is in harmony with other clauses of the will, and gives a consistent meaning to the entire will. The testator did not seek to control the vesting of his property beyond the time of his death. He set aside the securities for the sole purpose of performing his contract with his first wife. By this act he did not take these securities out of the residue and remainder of his estate. Before the securities were set aside this annuity had been paid out of the income of the estate; he did not intend to thus burden the whole residue and withhold all from present enjoyment and so fixed a principal fund to furnish the annuity. When the purpose to which the income of these securities was devoted terminated, the securities were to be delivered to his residuary legatees or those living entitled to the share of a deceased residuary legatee in the proportions named in the residuary clause.
Judgment should be ordered accordingly.
H. T. Kellogg, Acting P. J., and Hinman, J., concur; Hasbrouck, J., dissents, with an opinion.