Scott v. West

24 N.W. 161, 63 Wis. 529, 1885 Wisc. LEXIS 283

• Court: Wisconsin Supreme Court
• Decided: September 22, 1885
• Status: Published

Opinions

The following opinion was filed July 2, 1885:

Cassoday, J.

The testator had. sufficient sagacity to accumulate a large fortune. He lacked the requisite sagacity to secure competent legal aid in drawing a will which should embody an intelligent expression of his purposes and at the same time be free from legal complexity. The result of such failure is this suit to ascertain his intentions as expressed in his will and to determine whether any of its provisions were in violation of any rule of law. Possibly other suits may arise. Whether such failure was induced by economic considerations, or an innate conceit of the testator’s capacity to draw his own will, is immaterial, since in either event the experiment is equally exjjensive and troublesome and may result in defeating some of the purposes cherished. It would be difficult to find a will with language unobscured and containing so few provisions, and yet involving so many intricate legal propositions. This does not result from any bungling or awkward use of the words employed, nor the usual confusion produced by a superfluity of language, nor repeated inconsistent and conflicting statements, but from a poverty of expression as to things touched upon, obviously growing out of the absence of the requisite knowledge of the law applicable to the dispositions intended, and hence a failure to mention some things which, seemingly, must have been in contemplation at the time.

In construing the different provisions of such a will, it seems to be especially necessary to first fully comprehend the scheme of the whole will, and the ultimate purpose or object sought to be secured in the making of it. To discover such purpose and object, upon the principles of law applicable, is the business of construction. Putting ourselves as far as possiblein the place of the testator at the time of making the will, and reading the language employed in the light of the facts and circumstances then existing and apparently in his mind, we may be enabled to 'discover his real intentions, and the objects thereby sought to be attained.

Long prior to the making of the will he had been divorcecl from bis wife, and provisions bad been made for ber at that time. Eight years before tbe execution of tbe will, bis oldest daughter bad married, and, within a year after ber marriage, died, leaving to him tbe little grandson, Henry T. West, Jr., one of tbe defendants. His daughter Mary bad been married less than three years, and was less than twenty-six years of age, but bad two little children, tbe oldest of which was not yet two. His other daughter, Kate, was unmarried, and only a little more than seventeen years of age. Tbe only changes after making tbe will and before tbe testator’s death, was tbe birth of a son to Marry, and tbe marriage of Kate, and, after bis death, tbe birth of a daughter to Kate. His two daughters, bis grandchildren then living, and those thereafter to be born, and tbe legal issue of any deceased grandchild or grandchildren by way of representation, and a sister, were tbe sole objects of bis bounty. Tbe mere fact that tbe will referred to Marry as though she were still unmarried, and provided for ber children in case she should “ marry and have issue,” did not indicate a purpose to exclude ber two children then living. Tbe clause was evidently copied by mistake from a former will drawn prior to her marriage. It is obvious from tbe Avbole tenor of tbe will that be intended to provide for all bis grandchildren. Such intention is clearly manifested in tbe will, and is not to be frustrated by a false assumption or inference contained therein respecting Mary's marriage and ber children. Like a false description, otherwise perfect, it maybe rejected. Thompson v. Jones, 4 Wis. 106; Mann v. Pearson, 2 Johns. 37. The rule “ universally recognized and acted on,” said Lord CkaNwoRth, in speaking of a provision in a will, is “ that words are to be construed according- to their plain, ordinary meaning, unless tbe context shows them to have been used in a different sense, or unless tbe rule, if acted on, would lead to some manifest absurdity or incongruity.” Thellusson v. Rendlesham, 7 H. L. Cas. 494. This was sanctioned in the recent case of In re Northen’s Estate (Salt v. Pym), L. R. 28 Ch. Div. 157. This rule authorizes the rejection of the false assumption or inference mentioned, for otherwise there would be a “ manifest absurdity or incongruity” in these features of the will.

Of course, the rights of the parties under the will became vested immediately upon the death of the testator. Newman v. Waterman, post, p. 612; Van Vechten v. Van Veghten, 8 Paige, 104; Banks v. Thornton, 11 Hare, 176; Bank of Hamilton v. Lessee of Dudley, 2 Pet. 492; Miller v. Miller, 10 Met. 393; Canfield v. Bostwick, 21 Conn. 550; Gold v. Judson, 21 Conn. 616. To be effectual, however, in passing title, the statute required that it should be admitted to probate (sec. 2294, R. S.; Newman v. Waterman, supra),but, when so admitted, it related back to the death of the testator', and is to be treated as speaking from that moment.

The disposing parts of the will are all in prcesenti, yet singularly the will passed the absolute and then present title to but a very small fraction of the property on hand at the time of the testator’s death. The immediate dispositions are confined almost wholly to the income thereafter to accrue. By the third clause of the will the testator did give to his two daughters, jointly, the absolute title of all of his “household goods, furniture, books, pictures, plate, and ornaments.” These were valued at $859.85. This seems to be the only property in being at the time to which title was absolutely disposed of in prcesenti by the will. By the third clause he devised the homestead to the two daughters, “and to the survivor of them, during their natural Uves, . . . free of taxes, expenses of repairs, and insurance.” He appointed liis daughters the executors of his will, with a request that they should not be required to give security. He ordered and directed his executors to pay all his just debts, including mortgages on his real estate, if any, with, as little delay as might be. By the seventh clause of the will he required his daughters to pay quarterly to his sister, Eveline Caswell, from the net income they should derive from his estate, a sum sufficient for her comfortable support, as [long as she should live. The court held this to be a charge upon the daughters personally, to be paid by them out of the shares of the net income of the testator’s estate given to them by the first clause of the will. This is frankly conceded to be the true construction, and the language is too plain for any other.

It follows that, aside from the property given to the daughters jointly by the third clause of the will, as above mentioned, the only dispositions made by the will of any portion of the estate, during the lives of the daughters and each of them, is a certain fractional share of the net income of the estate to each of the daughters, and a certain other fractional share of such net income to each of the grandchildren,— including those which might thereafter be born,— during the natural life of such grandchild and such daughters, respectively. This leaves almost the entire corpus of the estate undisposed of so long as either of the two daughters shall live. Unless a large number of grandchildren shall hereafter be born, it will also leave undisposed of during the same period a very large.share of the net income of the estate. The fourth clause of the will is to the effect that, after the death of the testator’s daughters, he gave, devised, and bequeathed all the residue and remainder of his property, real and personal, to his surviving grandchildren, and to the legal issue of any deceased grandchild or grandchildren, by way of representation of such deceased grandchild or grandchildren, and to their heirs and assigns, forever, in equal parts. This obviously includes grandchildren born after the execution of the will, and also those born after the death of the testator, as well as those born before. It also includes the child or children of any predeceased grandchild, although the oldest grandchild at the time of the making of the will was only seven years of age. But it only includes such of the grandchildren and such great-grandchildren of a predeceased grandchild, if any, as shall survive the death of both of the daughters.

The ultimate purpose of the testator is not so manifest in the giving as in the withholding. He provided a home for his daughters during their lives, respectively. In addition, he set apart such fractional shares of the net income of his estate as would in his judgment provide a comfortable support for his daughters and grandchildren during the lives of his daughters, respectively. But almost the entire corpus of the estate, and so much as might be left of the net income of his estate after satisfying the other provisions of the will, he tied up during the lives of his daughters, respectively, for his grandchildren, to be distributed to them as indicated, on the death of his daughters.

Prom what has been said, and the peculiar wording of the bequest to Ilenry, several very important and difficult questions of law are suggested, which will be considered in their order: In whom is and will be the title to the corpus of the estate (not mentioned in the third, clause of the will) during the lives of the daughters ? On the death of the testator did such corpiis go to the executors to be held by them in trust as long as either of them should live, and then on their deaths to be distributed to the s%t,rvivors mentioned in the fourth clause “of the will? Or did it go under the statutes to the heirs at law of the testator? If to the heirs at law, then did it go to them absolutely as their own property, and thus render inoperative and entirely defeat the fourth clause of the will? Or did it go to them in trust, to be held until the death of both of the daughters, and then to be distributed to the survivors named in that clause of the will ? Or did it go to the grandchildren living at the time of the testator’s death? And if it went either to such heirs or grandchildren, then did it go subject to being opened to let in such grandchildren as might be thereafter born during the life of either of the daughters, and to let out any heir or grandchild who might die during that period? Is there any difference in these respects between the personal and real estate? These questions go to the tenure of property, and are fundamental.

Of course, the legal title to personal property becomes vested in the executor on the probate of the will. Melms v. Pfister, 59 Wis. 192, and cases there cited. The office of an executor is in its nature a trust, in the discharge of which he acts as trustee. Groton v. Ruggles, 17 Me. 140; Carson v. Carson, 6 Allen, 399. The executor takes such title, therefore, subject to the trust and duties imposed by law, even where none have been specifically designated or declared in the will. Sec. 3785, E. S. Such duties and trusts are suggested by the bond required (sec. 3794, E. S.), when no exemption is made in the will. Sec. 3795, E. S. The executor is bound to make the proper returns, and render the proper account. Sec. 3794, E. S. lie is bound to administer according to law, and the will of the testator, all Iiis goods, chattels, rights, credits, and estate, and out of the same pay and discharge all debts, legacies, and charges properly chargeable thereon, or such dividends thereon as may be ordered and adjudged by the county court, and to perform all the orders and judgments of that court. Hid. He may take the possession of real estate, receive the rents, issues, and profits, and keep the same in repair. Secs. 3S22, 3823, E. S.

By the statutes, the time for paying debts and legacies, and to make a final settlement of the estate and of the accounts of the executor, may be extended, but not beyond six years from the time of granting letters testamentary. Sec. 3850, E. S. Such limitation is to secure a speedy settlement of the estate, when it can be done according to the will. It is not designed, however, to frustrate, or render nugatory, any portion of the will. On the contrary, the 'estate is to be administered according to the will. Here, it is impossible to so administer and finally settle the estate within the time mentioned. The executors were expressly ordered and directed by the fifth clause of the will to pay the taxes on the homestead property, and on the household goods, furniture, pictures, books, plate, and ornaments bequeathed to the daughters, and to keep the same insured and in good repair without exiDense to the daughters or either of them, “clawing the lives” of the daughters; and in case of the destruction of the dwelling-house on the homestead by fire during that time, then to rebuild the same without expense to the daughters. They were, moreover, authorized, and, in effect, directed, by the sixth clause of the will, to prudently manage the estate in every respect; to keep the buildings and other improvements on real estate in good condition as to repairs; to purchase other real estate, or make improvements on his unimproved real estate, if in their opinion the interests of all parties concerned would be promoted thereby, and for that purpose they were expressly authorized to use any moneys that might come into their hands, not otherwise disposed of by the will. They were also, in effect, required by the first and second clauses of the will to figure out, and from time to time disburse for, or pay over to, the several parties therein named, the several fractional shares of the net income of the estate mentioned, so long as either of said daughters should live.

The will contains no express provision as to who shall have the title to any of the property, real or personal, during the lives of the daughters, respectively. But the trusts and duties thus imposed by the will are, necessarily, lifelong in their duration. They cannot be terminated and completed until the death of both of the daughters. Ross v. Barclay, 55 Am. Dec. 617. During their lives, as indicated above, almost the entire corpus of the estate, and probably a large share of the net income thereof, are to be tied up, and’ only to be distributed upon the death of both of the daughters. This being so, does not the will make the executors, and the survivor of them, trustees to hold the property, especially the personal estate, in trust for the benefit of those who are to take on then death under the fourth clause of the will ? As to such personal property they took and are holding the legal title. Such holding, to some extent, at least, must continue duilng their lives. During the whole of that time they must prudently manage the estate in every respect. They must pay taxes and insurance. They must keep the real estate in good condition as to repairs. They must pay over or disburse certain fractional shares of the net income as indicated. They are expressly authorized to convert any moneys coming into their hands, and not otherwise disposed of by the will, into real estate, by purchasing other real estate, or by improving such as the testator owned at the time of his death. This could not properly be done even by a trustee, much less by a mere executor, without special authority. Kaufman v. Crawford, 9 Watts & S. 131; S. C. 42 Am. Dec. 323.

These things necessarily imply that the executors shall hold in trust the moneys with which to make such payments, disbursements, and purchases. Where no directions are given as to the manner in which the fund shall be invested, prior to its final appropriation in satisfaction of the trust, it is left to the discretion of the trustees. Deaderick v. Cantrell, 10 Yerg. 263; S. C. 31 Am. Dec. 576. A joint trustee of such discretionary trust is held to a more stringent liability for the acts of his co-trustee than in case of a directory trust in which the directions have been followed. Hid. These principles are applicable to the personal property left to the executors in trust under this will. The authority to convert personal property into real estate, by necessary implication includes the authority to take title to the lands thus purchased in their own names as executors in trust for the survivors described in the fourth clause of the will.. This necessarily follows, since it is impossible to tell with certainty who such survivors will be until the death of the daughters. By the will, such survivors may include grandchildren or great-grandchildren not yet born, and hence cannot be confined to those in being on the testator’s death, nor include those who may die during the lives of the daughters. It logically follows that the executors hold the legal title in trust, not only to the personal estate, but also to such of the real estate as has been or may hereafter be purchased with the proceeds of the personal property. It would seem that the real estate so purchased must be treated as real estate after it is so purchased. Phelps’ Ex’r v. Pond, 23 N. Y. 69; White v. Howard, 46 N. Y. 144; Dodge v. Williams, 46 Wis. 97; Hawley v. James, 5 Paige, 318; S. C. 16 Wend. 61.

The question as to who took the title of the real estate of which the testator died seized, and who will hold the same while the daughters, or either of them, live, and until distributed under the fourth clause of the will, is more difficult to determine. Since the will expressly, or by necessary implication, imposes upon the executors such duties, and creates in them such trusts, but fails to specifically name them or any one as such trustees, or give, devise, or bequeath the property to them or any one in trust, we must hold it to be the duty of the executors, and the survivor of them, as such, to administer the estate according to the provisions of the will, notwithstanding the duties thus imposed include such as are usually performed by a trustee. This is the rule indicated by the authorities. Saunderson v. Stearns, 6 Mass. 31; Dorr v. Wainrighl, 13 Pick. 328; Hol brook v. Harrington, 16 Gray, 102; Carson v. Carson, 6 Allen, 397; Groton v. Ruggles, 17 Me. 137; Howard v. Am. Peace Soc. 49 Me. 306; Pettingill v. Pettingill, 60 Me. 423; Nutter v. Vickery, 64 Me. 490; McArthur v. Scott, 113 U. S. 340; Mather v. Mather, 103 Ill. 607; Bradley v. Amidon, 10 Paige, 235; Craig v. Craig, 3 Barb. Ch. 76, 94; Brewster v. Striker, 2 N. Y. 19; Leggett v. Perkins, 2 N. Y. 297; Vail v. Vail, 4 Paige, 317; S. C. 7 Barb. 226; Tobias v. Ketchum, 32 N. Y. 319; White v. Parker, 1 Bing. N. C. 573; Barker v. Greenwood, 4 Mees. & W. 421; Silvester v. Wilson, 2 Term R. 450; Tenny v. Moody, 3 Bing. 3; Biscoe v. Perkins, 1 Ves. & B. 485; Van Steenwyck v. Washburn, 59 Wis. 483.

The general import of this will seems to be equivalent to saying “ that the residue of my property, both real and personal, shall remain as my estate as long as I have a living child;” as in Mather v. Mather, supra. In Bradley v. Amidon, supra, the simple management and control of the property for the time named, and'the disbursements of the income, was held to create a valid trust. In Craig v. Craig, supra, there was no devise or bequest to the executors, as trustees of a certain share of the estate, but it was held from the whole will that a valid trust was created during the life of the daughter. The reason for this was given by the chancellor, thus: “Por a devise of the rents and profits of land for life, without anything more, is but a different mode of expression to create a devise of the land itself during the same period. Here, however, the testator clearly shows that he intends that his daughter Gertrude shall receive the rents- and profits of the real estate embraced in that share, as well as the income of the personal estate included therein, through the medixim of the executors. The executors, therefore, take the legal title to her share of the real estate as trustees, by implication, to enable them to rent the premises, and receive the rents and profits thereof, and pay them over to her, or apply them to her use.” This was under statutes similar to ours.

In Brewster v. Striker, supra, the lands were devised to the grandchildren and their heirs forever, but the executors were required to rent the same, and pay the rents, issues, and profits to the grandchildren annually during their lives; and it was held that the executors, by implication, took the legal estate during the lives of the grandchildren. To the same effect are Leggett v. Perkins, supra; Vail v. Vail, supra, In Tobias v. Ketchum, supra, the will was, in effect, somewhat similar to this, and it was held that “ where the executors are clothed with full power and authority to rent, lease, repair, and insure the estate during any period of time it shall remain unsold and undivided, they are vested with the legal title thereto.” A devise of the care and management of land, and of the disposition of its income, during the life of the devisee, for the benefit of another, confers upon the devisee a life estate in trust. Butterfield v. Haskins, 33 Me. 392. In Van Steenwyck v. Washburn, supra, a clause in a will directing the executors to bear constantly in mind the wants of an insane widow, and to set aside, use, and expend whatever moneys might be necessary, consistently with her condition, to provide for her comfort and physical health, without limit for the purposes indicated, was held to create a personal trust in the executors, in addition to their powers and duties as such, which would continue during the life of the widow.

But the estate in fee will only be implied to the extent required to carry into execution the trusts imposed. Upham v. Varney, 15 N. H. 462; Deering v. Adams, 37 Me 264; Pearce v. Savage, 45 Me. 98; Ellis v. Fisher, 3 Sneed, 231; Morton v. Barrett, 39 Am. Dec. 575; Hawk. Wills, 143-145. A general devise to executors in trust vests no estate in them except for such of the declared purposes as require that the title be vested in them. Manice v. Manice, 43 N. . The rule at common law, as well as by the statute, is that the trustee takes that quantity of interest only which the purposes of the trust require and the instrument creating it permits. Nicoll v. Walworth, 4 Denio, 388.

By our statute “ every person who, by virtue of any grant, assignment, or devise, now is or hereafter shall be entitled to the possession of lands and the receipt of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein of the same quality and duration, and subject to the same conditions, as his beneficial interest.” Sec. 2073, E. S. This merely changed what, but for the statutes, would have been an equitable interest in the use of the property, into a legal estate in the property itself of the same quality and duration. Vander Volgen v. Yates, 3 Barb. Oh. 243. Here each of the daughters had such beneficial interest through the medium of themselves, as executors, to the extent of three twenty-fourth parts of the net income of the entire estate, which, of course, includes the real estate. So each of the executors, as such, took a beneficial interest to the extent of the fractional shares of such net income which she took for her children. Such beneficial interests were life estates. Seed v. Reed, 9 Mass. 372; Andrews v. Boyd, 5 Me. 199; Butterfield v. Haskins, 33 Me. 392; France's Estate, 75 Pa. St. 220; Estate of Schryer, 2 Brewst. 526; Hawk. Wills, 140 et secy. But “ no person beneficially interested in a trust for the receipt of the rents and profits of lands, can assign or in any manner dispose of such interest.” Sec. 2089, E. S.

As we construe this will, the executors were entitled to the possession of the real estate, and the rents, issues, and profits thereof, as well as the personal property. The statutes authorize the creation of such express trusts for the purpose of receiving and disbursing such rents and profits. Subd. 3, 4, sec. 2081, E. S.; Leggett v. Perkins, 2 N. Y. 297; Haxtun v. Corse, 2 Barb. Ch. 506. The power thus given to executors Or other trustees to receive the rents and profits is more effectual under the statutes to vest the'estate in the trustees, than a devise of lands directly to such executors or other trustees, without such authority, but to be sold or mortgaged. Sec. 2082, R. S. Here the executors were also to have charge of and disburse the “ net income ” going to Hennj, as well as to themselves, respectively, and to their children, which implies that they were to do all the things requisite to secure and obtain such net income. The will created a valid express trust, and, except as stated, vested the whole estate in the executors in trust as indicated, subject only to the execution of the trust. Sec. 2086, R. S. By the same section of the statute, the persons for whose benefit the trust was created took no estate or interest in the lands except as. provided in the statutes, but they can enforce the performance of the trust. Ibid.; De Wolf v. Lawson, 61 Wis. 475. This did not, however, prevent the testator from declaring to whom the lands to which the trust related should belong on the failure or determination of the trust, nor from gramti/ng or devising such lands subject to the execution of the trust. Sec. 2087, R. S. Every such grantee has a legal estate in the lands as against all persons except the trustees and those lawfully claiming under them. Sec. 2087. When such trust is created, every estate and interest not embraced in the trust, and not otherwise disposed of, remains in or reverts to the person creating the trust, or his heirs, hs a legal estate. Sec. 2088, R. S.

From what has been said it is manifest that, under the will, the executors and the survivor of them, as such trustees, must have the possession of the real estate during life, with the right to do everything necessary or convenient to carry into execution the duties and trusts imposed by the will. Such possession and rights constitute a legal estate which must continue during the lives of the daughters and the survivor of them. But the -will does uot give them any express or implied power or authority to sell or dispose of any portion of the real estate. The quality and duration of their legal estate are necessarily limited and measured by their beneficial interests, their right to possession, and the duties and trusts imposed upon them by the will. Such possession, duties, and trusts must necessarily terminate with their deaths, and thereupon “ all the residue and remainder” of the estate, not otherwise disposed of by the will,.must, under and by virtue of the fourth clause of the will, go to the survivors designated therein, and to their heirs and assigns, forever, in equal parts.

'Who are or will be the survivors thus designated in that clause of the will? Of course, they will include every grandchild who survives both of the daughters, whether such grandchild is now living, or may hereafter be born. As the daughters were the only surviving children of the testator, it is manifest that all his grandchildren must be born before the death of both of the daughters. But thes class which is thus made the object of the testator’s gifts, devises, and bequests is not limited to such “ surviving grandchildren,” but extends by way of representation “to the legal issue ” of any predeceased grandchild or grandchildren. By that clause of the will, the testator, in effect, on the death of both his daughters, gave, devised, and bequeathed “ all the residue and remainder ” of his property, real and personal, to such of his grandchildren as should then be living, and to the legal issue of any predeceased grandchild, “ and to their heirs and assigns, forever, in equal parts.”

The complete vesting of the title and possession of such “ residue and remainder ” is, by the will, postponed until the death of both the executors, who hold possession for life, and hence every person answering to the description thus given at the time of the death of the last surviving daughter, are the persons entitled. Gill v. Barrett, 29 Beav. 372; Wessenger v. Hunt, 9 Rich. Eq. 459; Knight v. Knight, 3 Jones, Eq. 167; McArthur v. Scott, 113 U. S. 340; Teed v. Morton, 60 N. Y. 502. The question is presented, therefore, whether such residue and remainder is, during the lives of the daughters, vested or contingent. “Perhaps,” said Parker, C. J., “no question can arise in the course of legal inquiries more doubtful in its nature, or less referable to fixed and certain rules and principles, than whether the words of a devise or bequest constitute a vested or contingent remainder.” Shattuck v. Stedman, 2 Pick. 469. A reference to some established rules, however, seems to be essential in order to appreciate the questions presented by this record. Where there is nothing to indicate the contrary, a bequest or devise to a class of persons takes effect in favor of those constituting the class at the time of the testator’s death. De Witte v. De Witte, 11 Sim. 41; Campbell v. Rawdon, 18 N. Y. 412; Petway v. Powell, 2 Dev. & B. Eq. 308; Loockerman v. McBlair, 46 Am. Dec. 664; Hawk. Wills, 68-71, and cases there cited; Packham v. Gregory, 4 Hare, 396; Shattuck v. Stedman, 2 Pick. 469; Emerson v. Cutler, 14 Pick. 108; Ferson v. Dodge, 23 Pick. 287; Pike v. Stephenson, 99 Mass. 188; Bowditch v. Andrew, 8. Allen, 339; Wight v. Shaw, 5 Cush. 56; Ross v. Drake, 37 Pa. St. 373; Tayloe v. Mosher, 29 Md. 443; Austin v. Bristol, 40 Conn. 120.

“ For many reasons,” said Mr. Justice Grat, in McArthur v. Scott, 113 U. S. 340, “ not the least of which are that testators usually have in mind the actual enjoyment rather than the technical ownership of their property, and that sound policy as well as practical convenience require that titles should be vested at the earliest period, it has long been a settled rule of construction, in the courts of England and America, that estates, legal or equitable, given by will should always be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should be contingent upon a future event.” Where the time of payment or distribution is merely postponed for the convenience of the fund or property, or to let in others, the vesting will not he deferred until that period. Tayloe v. Mosher, 29 Md. 444; 2 Williams on Executors (7th ed.), 1344 (1243). In such cases the question is whether the time named is annexed to the payment or to the gift itself. 2 Williams on Executors (7th ed.), 1325 (1224). “ Where, in case of such a legacy, w;ords of contingency or condition are used, which may be construed as applying either to the gift itself or to the time of payment, courts are inclined to construe them as applying to the time of payment, and to hold the gift as vested rather than contingent.” Dale v. White, 33 Conn. 294.

At the time of the testator’s death he had four grandchildren living. As members of the class described, they were, and are, prospectively entitled to share in the enjoyment of the estate. Did the residue and remainder of the estate, or any part of it, become vested in them on the testator’s death? If so, did it open and let in the grandchild born since the death of the testator? Will it open and let in such other grandchildren as may hereafter be born? Will it also open and let out any predeceased grandchild; and, by way of substitution, open and let in any legal issue of such predeceased grandchild? Unless the law will permit such remainder or some portion of it to so open and let in or out, as the case may be, no part of it can be regarded as vested.

Some confusion has arisen in the use of the word “ vested ” when applied to personal property. Mr. Hawkins says, in effect, that originally the word had reference only to real estate. It signified the acquisition of a portion of the actual ownership. The fee simple being supposed to be carved out into parts or divisions by the creation of particular estates, a grant to any person of one of these portions of the fee, rested him with, or vested in bim, an estate in tbe land. Thus “vested” is nearly equivalent to “possessed.” “All remainders, not vested, are in fact contingent.” Page 221. Tbe rules and expressions relative to tbe vesting of personal estate bave been derived in great measure from tbe civil law. In that system legacies not immediately payable are divided into two classes: (1) Legacies payable at a future time certain to arrive, and wbicb were transmissible to the representatives of tbe legatee if be died before tbe time of payment, and wbicb are sometimes said to be vested; (2) conditional legacies, or legacies payable on an event which might never happen, and wbicb were not so transmissible, and wbicb are sometimes said to be contingent. Page 222. Tbe only definition that can be given of tbe word “vested” in English law, as applied to future interests, other than remainders, is that it means, “not subject to a condition precedent.” Page 223.

From these definitions it may be said with propriety that Legacies payable at a future time certain to arrive, and not subject to a condition precedent, are vested. This is abundantly illustrated by the rules deduced from tbe authorities by tbe learned author last cited. Hawk. Wills, 226, 227, 232, 233, and cases there cited; and see 2 Jann. Wills, 710, (5th Am. ed. from 4th London). On the other band, legacies only payable on an event wbicb may never happen, and hence subject to a condition precedent, are contingent. Hawk. Wills, 224. With these observations apparently in view, tbe learned author deduced from tbe authorities, as applicable to both real and personal property, this rule: “ A devise or bequest of a corpus or aggregate fund to children as a class, where tbe gift is not immediate, vests in all tbe children in existence at .the death of tbe testator,'but so as to open and let in children subsequently coming into existence before the period of distribution.” Hawk. Wills, 71, 72; and see, also, 2 Jarm. Wills, 707-710 (5th Am. from 4th London ed.). This is certainly the rule in this country as to real property. Carpenter v. Schermerhorn, 2 Barb. Ch. 314; Stevenson v. Lesley, 70 N. Y. 512; Dingley v. Dingley, 5 Mass. 535; Denny v. Allen, 1 Pick. 147; Annable v. Patch, 3 Pick. 360; Ballard v. Ballard, 18 Pick. 41; Weston v. Foster, 7 Met. 297; Minnig v. Batdorff, 5 Pa. St. 503; Rudebaugh v. Rudebaugh, 72 Pa. St. 271; Tayloe v. Mosher, 29 Md. 443; Barnum v. Barnum, 42 Md. 254; Hamletts v. Hamlett's Ex'r, 12 Leigh, 350; Cooper v. Hepburn, 15 Grat. 551; Turner v. Patterson, 5 Dana, 292; Monargue v. Monarque, 8 Abb. N. C. 115.

In Carpenter v. Schermerhorn, supra, a testator devised to each of his six children an equal undivided sixth part of his real estate for life, and after the decease of each child devised the same to the children of such child and to their heirs and assigns, forever; and it was held that the devise in remainder was given to all the children of each child of the testator, as a class, and that each grandchild, the moment it came into existence, took a vested interest in the remainder in fee, subject to open and let in after-born children; and that such of them as died leaving issue transmitted that interest by descent to his or her issue, even in the life-time of the tenant for life, as a vested remainder in fee. In Denny v. Allen, supra, the testator gave the use and profits of his real and personal estate to his wife for life, and “after the death of his wife” devised .and bequeathed the same to all the children of his brothers and sisters. At the time of making the will and the testator’s death there were living forty-seven nephews and nieces, of whom thirty-eight, together with three others born after his death, survived the wife; and it was held that the forty-seven took a vested remainder in the land, which opened to let in the three born thereafter, and that the personal estate belonged to the forty-one (including the three) who survived the wife. In Ballard v. Ballard, supra, the testator gave to his sons, for the term of ten- years after Ms decease, the improvement and income of bis farm, and “ after the expiration of the ten years,” gave and devised to Ms grandchildren the same farm, to have and to bold to them, their heirs and assigns, forever; and “it was held that tMs devise created a vested remainder in the grandchildren who were living at the decease of the testator, subject, however, to open and let in all those who might be born afterwards, whether born before or after the determination of the particular estate, and that the share of a grandcMld who was living at the decease of the testator, but died before the expiration of the particular estate, descended to his father as Ms heir.” To the same effect is Weston v. Foster, supra. The other cases cited are to the same import.

In the recent case of McArthur v. Scott, 113 U. S. 340, a testator devised lands and personal property to his executors, and their successors and their heirs, in trust, with directions too numerous and complicated to be stated here. Mr. Justice G-bay, in discussing the question of vested and contingent remainders, inter alia, said: “ The more reasonable inference is that, upon the termination of the life estate by the death of all the cMldren and grandchildren for whose benefit it was created, the great-grandchildren would be immediately entitled to the remainder. Castle v. Eate, 7 Beav. 296; Manfield v. Duggard, Gilb. Eq. 36; S. C. 1 Eq. Cas. Abr. 195, pl. 4. Upon that construction the contingency contemplated must necessarily happen at some time, either by the arrival of the youngest grandcMld at twenty-one years of age, or by the -death of all the grandchildren under age, and the case would come within the settled rule that when a remainder is so limited as to take effect in, possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event wMch must unavoidably happen by the afflux of time, the remainder vests in interest as soon as the remainder-man is in esse and ascertained, provided nothing but bis own death before the determination of the particular estate will prevent such remainder from vesting in possession. Doe v. Considine, 6 Wall. 458, 476; Moore v. Lyons, 25 Wend. 119, 144; Blanchard v. Blanchard, 1 Allen, 223, 227. . . . Words directing land to be conveyed to or divided among remainder-men after the termination of a particular estate, are always presumed, unless clearly controlled by other provisions of the' will, to relate to the beginning of enjoyment by the remainder-men, and not to the vesting of the title in them. Eor instance, under a devise of an estate, legal or equitable, to the testator’s children for life, and to be divided, upon or after their death, among his grandchildren in fee, the grandchildren living at the death of the testator take a vested remainder at once, subject to open and let in after-born grandchildren, although the number of grandchildren who will take, and consequently the proportional share of each, cannot of course be ascertained until the determination of the particular estate by the death of their parents. Doe v. Considine, 6 Wall. 458; Cropley v. Cooper, 19 Wall. 167; Doe v. Provoost, 4 Johns. 61; Linton v. Laycock, 33 Ohio St. 128; Doe v. Perryn, 3 Term R. 484; Randoll v. Doe, 5 Dow, 202. . . . The direction, that if any grandchild shall have died before the final division, leaving children, they shall take and receive y*??1 stirpes the share of the estate, both real and personal, which their parents would have been entitled to have and receive if then living, was evidently intended merely to provide for children of a deceased grandchild, and not to define the nature, as vested or contingent, of the previous general gift to the grandchildren ; and its only effect upon that gift is to divest the share of any grandchild deceased, leaving issue, and to vest that share in such issue. Smither v. Willock, 9 Ves. Jr. 233; Goodier v. Johnson, L. R. 18 Ch. Div. 441; Darling v. Blanchard, 109 Mass. 176.” This language is peculiarly applicable to a similar provision in the fourth clause of this will.

From the authorities cited. it is obvious that the words “ after the death of my said daughters,” in the fourth clause of the will, at least as to the real estate of which the testator died seized, refer to the time when the grandchildren will come into the complete possession and enjoyment, and not to the time of the vesting of the remainder in fee in them. In other words, the clause, in effect, devised such real estate, directly upon the death of the testator, to the grandchildren, born or to be born, and to the legal issue of any predeceased grandchild, subject, of course, to the dispositions made in other portions of the will to the daughters, as executors in trust and otherwise, during their lives and the life of the survivor of them. It follows that the devise of the land to the grandchildren, etc., by that clause of the will, must be construed to convey to them all the estate of the testator therein which he could lawfully devise, except in so far as it appears by other portions of the will as above indicated that the devisor intended to convey a less estate. Sec. 2278, R. S.; In re Estate of Pierce, 56 Wis. 565; Newman v. Waterman, post, p. 612. Such devise is denominated by the statute as a future estate, because it is limited to commence in possession at a future day, on the determination of a precedent estate created at the same time and upon which it is dependent, and hence is termed a remainder. Secs. 2033-2035, R. S. And since, as we have seen, there were persons in being at the time of the testator’s death who would have had an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate, it follows that the estate was a vested remainder. Of course, the remainder thus vested must open and let in after-born grandchildren, and the legal issue of any predeceased grandchild, by way of representation; and is liable to be divested as to any grandchild dying without issue during the lives of the daughters.

So bequests of legacies and personal property,- when the payment or distribution is to he made at a future time certain to arrive, and not subject to a condition precedent, are deemed vested when there is a person in being at the time of the testator’s death, capable of taking when the time arrives, even though his interest is liable to be divested by dying without issue or diminished by future births. In such cases the legacy or bequest takes effect, in point of right, on the death of the testator. Devisme v. Mello, 1 Brown, Ch. 537; Middleton v. Messenger, 5 Ves. Jr. 136; Hallifax v. Wilson, 16 Ves. Jr. 168; Cooke v. Bowen, 4 Younge & C. (Exch.), 244; Scott v. Earl of S., 1 Beav. 154; Locker v. Bradley, 5 Beav. 593; Timins v. Stackhouse, 27 Beav. 434; M' Donald v. Bryce, 2 Keen, 284; Eyre v. Marsden, 4 Mylne & C. 238; Oppenheim v. Henry, 10 Hare, 441; Williams v. Clark, 4 DeG. & S. 472; Tucker v. Bishop, 16 N. Y. 402; Teed v. Morton, 60 N. Y. 502; Annable v. Patch, 3 Pick. 360. See, also, Hawkins and Williams, as cited above; Verrill v. Weymouth, 68 Me. 318; Brown v. Brown, 44 N. H. 281; Teele v. Hathaway, 129 Mass. 164; Dale v. White, 33 Conn. 294; Newberry v. Hinman, 49 Conn. 130.

Thus, in Cooke v. Bowen, supra, the testator directed the residue of his personal estate, after the death of his wife, who was tenant for life, to be divided by giving to his five nephews and nieces named, two shares each, and to their children one share each. The nephews and nieces survived the testator; and it was held “ that the residue vested in the nephews and nieces, and their children living at the testator’s death, or born in the life-time of the tenant for life? In Scott v. Earl of S., supra, the trustees were to stand possessed of the fund in trust for such of the testator’s grandchildren then born* or who should thereafter be born during the life-time of their respective parents, as should attain twenty-one years or marry with consent, whether born or unborn when any other of them attain the age or the time mentioned, and it was held that the grandchildren had vested interests in the fund, subject to be divested or diminished in the event of there being other grandchildren who should attain twenty-one or marry. In Oppenheim v. Henry, supra, a bequest of a residuary estate, to be invested and held by the executors in trust for all and every of the grandchildren of the testator, to be divided equally among them at the expiration of twenty years after his decease, was held to confer immediate, vested, and transmissible interests to the grandchildren living at the death of the testator, subject to be opened and let in grandchildren who might be born before the expiration of the twenty years. In Tucker v. Bishop, supra, it was held that each of the grandchildren living at the death of the testator took an immediate, vested interest in an equal share of the fund bequeathed to the children of his parent, subject to be diminished in quantity by the birth of subsequent children before the first child of the class became of age. To the same effect, Dale v. White, supra.

So, in McArthur v. Scott, 113 U. S. 340, it is held that “ a direction that personal property shah be divided at the expiration of an estate for life, creates a vested interest;” citing in addition to two of the cases above, In re Bennett's Trust, 3 Kay & J. 280; Strother v. Dutton, 1 DeG. & J. 675. There are some things said in two of the early Massachusetts cases indicating that the rule in this respect, as to personal property, was different than as to real property. Dingley v. Dingley, 5 Mass. 535; Emerson v. Cutler, 14 Pick. 108. But such statements are repudiated in' the more recent decisions in that state. Winslow v. Goodwin, 7 Met. 380, 381; Wight v. Shaw, 5 Cush. 60; Bowditch v. Andrew, 8 Allen, 342, 343.

By tbe word “ vested ” we do not mean that the grandchildren have the present title to the personal estate. On the contrary, as we have seen, that is vested in the executors, and will continue to be so vested during their lives and the life of the survivor of them. We simply mean that such legacies and bequests took effect, in point of right, in the grandchildren living, immediately upon the death of the testator, subject, of course, to their respective interests being divested by dying without issue or diminished in quantity by future births. In other words, each such grandchild became at once, on the death of the testator (or its subsequent birth), the owner of an equitable interest in a fractional share of the corpus of such personal estate; and such ownership must ultimately ripen into and become an absolute legal title, with the right to the immediate possession; and this can only be defeated or divested by the death of such grandchild, without issue, before the determination or execution of the trusts and rights given to and imposed upon the executors by the will. But such liability to defeat, as already indicated, did not prevent such equitable interest from becoming vested immediately upon the death of the testator. McArthur v. Scott, 113 U. S. 340. So the words “ after the death of my said daughters,” in the fourth clause of the will, as respects the personal property as well as the real estate, refers to such complete title and right to possession, and not to the time of vesting of the equitable interest in such property under that clause of the will. Bullock v. Downes, 9 H. L. Cas. 1.

What is to become of that portion of the net income of the estate which is undisposed of during the lives of the daughters? Must it be allowed to accumulate during their lives, and then upon their deaths be distributed as a portion of the residue of the estate under the fourth clause of the will? Or must it be distributed during their lives? If so, to whom, in what proportions, and when? As already observed, at the time of the testator’s death, he had but four grandchildren. Their fractional shares of the net income of the estate, together with the shares of the two daughters, only amounted in the aggregate to ten twenty-fourths, and in case Hennj is not to be counted, then only nine twenty-fourths. One grandchild has since been born. But the question recurs, What is to become of the thirteen or fourteen twenty-fourths of the net income so remaining undisposed of ? To absorb it all would require thirteen or fourteen additional grandchildren. As already indicated, the corpus of the estate was purposely withheld from distribution so long as either of the daughters may live. Not only this, but the distribution of the net income is limited to a small fraction. So small is this fraction that there is no probability of its ever being wholly absorbed, under the directions given in the will, during the life of either of the daughters. Knowing this, it must have been the purpose of the testator to allow such undisposed of net income to accumulate so long as either of the daughters should live, and thus swell the already large 'corpus with no other perceivable object than to stimulate in remote and unborn descendants an undue ancestral pride in the name of the giver.

The legality of such supposed accumulation is the question that confronts us. Several English cases were cited with elaboration upon the argument, upon the construction given to 39 and 40 George III. ch. 98, 18 Stats, at Large, 451. That act recited the expediency of restricting “ dispositions of real or personal estates, whereby the profits and produce thereof are directed to be accumulated, and the beneficial enjoyment thereof is postponed;” and so far as the act may, by analogy, be regarded as applicable to the question here presented, was to the effect that no person should, by will, dispose of any real or personal property, so and in such manner that the rents, issues, profits, or produce thereof should be wholly or partially accumulated for any longer term than twenty-one years from the death of the testator, or during the minority, or respective minorities, of any person or persons who should be living, or in ventre sa mere, at the time of the death of the testator; or during the minority, or respective minorities only, of any person or persons who, under the uses and trusts of the will directing such accumulations, would, for the time being, if of full age, be entitled unto the rents, issues, and profits, or the interest, dividends, or annual produce, so directed to be accumulated; and in every case where any accumulation should be directed otherwise than provided, such direction should be null and void, and the rents, produce, etc., so directed to be accumulated should, so long as the same should be directed to be accumulated contrary to the act, go to and be .received by such person or persons as would have been entitled thereto if such accumulation had not been directed. That act contained a proviso which, among other things, was to the effect that it should not extend to any provision for raising portions for any child or children of any devisor, or to any child or children of any person taking any interest under any such devise. According to Lord Chancellor CbaN-wobth, this was one of the “most ill-drawn acts to be found ” in the English statutes. Tench v. Cheese, 6 DeG., M. & G. 460.

Under this statute the English courts have held that although an accumulation be directed for a greater period than the term limited, yet that it is good for the twenty-one years, and void only as to the excess. Griffiths v. Vere, 9 Ves. Jr. 127; Evans v. Hellier, 5 Clark & F. 114; Elborne v. Goode, 14 Sim. 165; Morgan v. Morgan, 4 DeG. & S. 164; Tench v. Cheese, 6 DeG., M. & G. 453; Mathews v. Keble, L. R. 4 Eq. Cas. 467; S. C. L. R. 3 Ch. App. Cas. 691; 1 Jarm. Wills, 576 (303). So they have held that the unlawful accumulation, if arising from real estate, would go to the heir at law, and if from personal estate to the next of kin, and not to tbe residuary devisee or legatee. Griffiths v. Vere, supra; McDonald v. Bryce, 2 Keen, 276; Eyre v. Marsden, 4 Mylne & C. 246; Elborne v. Goode, supra; Mathews v. Keble, supra.

In Griffiths v. Vere, 9 Ves. Jr. 127, Lord EldoN expressed tbe opinion, subsequently followed by other judges, that to render tbe accumulation unlawful tbe will must contain an express direction to accumulate for a longer period than tbe time limited, and tbat tbe act did not apply to sucb an accumulation as arose by simple operation of law. In the later case of Tench v. Cheese, 6 DeG., M. & G. 453, Lord Chancellor CRANWoetii repudiated tbe doctrine, and declared tbat “ if a testator directs tbat to be done which, as a necessary consequence, leads to an indefinite accumulation, he must, within the meaning of the statute, be taken to have directed tbe accumulation.” Lord Justice TubNer concurred in this view, while Lord Justice Beuoe was in doubt. This last enunciation may have some support in the later case of Bective v. Hodgson, 10 H. L. Cas. 656. In the still later case of Mathews v. Keble, supra, the Vice Chancellor indicated a preference for the dictum of Lord EldoN, but in the same case on appeal, the judges seem to have an impression tbat tbe dictum of Lord Ceaxwoeth was after all tbe better dictum; and, to our minds, it is based upon tbe better reason.

Our statutes on the subject are quite different, and of course the English cases are not controlling. Our statutes provide, in effect, that “an accumulation of rents and profits of real estate for the benefit of one or more persons may be directed by any will,” but (1) “ If such accumulation be directed to commence on the creation of the estate out of which the rents and profits are to arise, it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority. (2) If such accumulation be directed to commence at any time subsequent to the creation of the estate out of which the rents and profits are to arise, it shall commence .within the time in [that] chapter permitted for the Testing of future estates and during the minority of the persons for whose benefit it is directed, and shall terminate at the expiration of such minority.” Sec. 2061, R. S. “If, in either of the cases mentioned in [that] section, the direction for such accumulation shall be for a longer ti'me than is therein prescribed, or than during the minority of the persons intended to be' benefited thereby, it shall be void as to such additional time, and all directions for the accumulations of rents and profits of real estate, except such as are herein allowed, shall be void.” Sec. 2062. “When such rents and profits are directed to be accumulated for the benefit of infants entitled to the expectant estate, and such infants shall be destitute of other means of support and education, the circuit court, upon the application of their guardian, may direct a suitable sum out of such rents and profits to be applied to their maintenance and education.” Sec. 2063. “ When, in consequence of a valid limitation of an expectant estate, theie shall be a suspense of the power of alienation, or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall ■belong to the person presumptively entitled to the next eventual estate.” Sec. 2064. The death of the testator is deemed the time of the creation of an expectant estate created by devise. Sec. 2065.

These several provisions were copied almost literally from the statutes of New York, where they were in force as early as the revision of 1829 and since. . See the revision of that year. 1 R. S. of N. Y. 726, §§ 37-40; 3 R. S. of N. Y. 1882, p. 2178, §§ 37-40. Having taken these provisions from the statutes of New York, the constructions put upon them by the courts of that state are of peculiar significance and deserve ;our careful consideration. Here, as we have seen, the will contains no express direction to accumulate. During tbe lives of the daughters it only makes disposition of a very small fraction of the net income of the estate. The silence as to the balance of the net income during that time, and the disposition of “ all the residue and remainder ” of the estate on the death of the daughters, is, as we think, by necessary implication, a direction to accumulate such undisposed of portion of such net income. This is in accordance with the construction given to the sections by the New York courts. Phelps’ Ex’r v. Pond,, 23 N. Y. 80. As we have seen, it is also in harmony with the later English cases. In examining the New York cases we should not be .misled in this respect by the decisions construing the statutes against an accumulation of the interest, income, or profits of personal property, where the language is “if such accumulation be directed to commence,” etc., “ such accumulation must be directed to be made,” etc. 1 R. S. of N. Y. 1828, pp. 173, 774. We have no such statute against an accumulation from personal property, and hence the decisions in that state construing such statutes, are not applicable here, except in so far as the statutes quoted above are in that state made applicable to personal property.

It is here said to be impossible to bring the provisions for' such accumulation within the terms of the statute. This is put on the ground that such accumulation is for the benefit of a class, and is not made to minors eo nomine as such, and that the minors for whose benefit it was made, were not all in being “on the creation of, the estate” out of which the rents and profits were to arise.

In New York it has frequently been held, that, to be valid, the aecumulation must be solety for the benefit of minors, ;and cannot be legally made for the benefits of minors and ■adults together. Hawley v. James, 5 Paige, 318; S. C. 16 Wend. 61; Boynton v. Hoyt, 1 Denio, 54; Kilpatrick v. Johnson, 15 N. Y. 322; Pray v. Hegeman, 92 N. Y. 508. Here the grandchildren were all minors at the time of the death of the testator. The oldest had not then quite reached the age of ten years. The accumulation directed was solely for the benefit of such minor grandchildren born or to be born. This should be qualified by saying that, after such accumulation may to some extent be secured and added to the corpus of the estate, the net income of the whole estate may perhaps be’ thereby slightly increased, and consequently the three twenty-fourth parts of such net income thereafter to be paid to each of the daughters correspondingly increased. But this is not to be accumulated, and is only incidental, and arises by inference, and does not necessarily and absolutely follow, and is a circumstance which of itself should not render such accumulation void, if it is otherwise valid.

Must such accumulation be held to be wholly void merely because some of the minors for whose benefit it was made were not in being at the time of the death of the testator, when the estate was created out of which the rents and profits were to arise? One of the purposes sought to be secured by requiring the minors, for the benefit of whom the accumulation is directed,, to be in leing on the creation of the estate out of which the rents and profits are to arise, in case such accumulation is directed to then commence, seems to be the vesting of the ultimate right to such accumulation as soon as such estate is created and the accumula^ tion commences. Subd. 1, sec. 2061, E. S. In cáse they commence at a subsequent period, then they must “ commence within the time . . . permitted for the vesting of future estates, and during the minority of the persons for whose benefit it is directed.” Subd. 2, sec. 2061.' But whether such accumulation commences on the creation of the estate out of which the rents and profits are to arise, or' at any time subsequent thereto, yet when it does commence the persons for whose benefit it is directed, must then be id-being and in their minority, and the same must terminate at the expiration of such minority. The time permitted for the vesting of future estates is limited to two lives in being at the creation of the estate. That is to say, future estates are ODly permitted to be contingent during such two lives in being at the time of the creation of the estate. Secs. 2037-2039, R. S.; DeWolf v. Lawson, 61 Wis. 473. During the lives of his two daughters, the testator was authorized to suspend the absolute ownership of his éstate, both real and personal, and during that time render it inalienable. Ibid. So, during such suspension, he was authorizéd to dispose of the income annually as it accrues, but could direct its accumulation from the real estate only during the time and for the purpose prescribed in the statute. So, during the time, he was authorized to give vested legacies and provide for their payment at a future time certain to arrive. Phelps' Ex'r v. Pond, 23 N. Y. 81. Future estates are contingent while the person to whom they are limited to take effect remains uncertain. Sec. 2037, R. S. The accumulation here directed is a future estate, and one of the' questions is whether it is to be deemed vested or contingent. The statute treats “ such rents and profits ” as “ are directed to bo accumulated for the benefit of infants entitled to the expectant estate,” as vested in point of right immediately on the death of the testator; for it authorizes the court, under certain circumstances, to “ direct a suitable sum out of such rents and profits to be applied to their maintenance and education.” Sec. 2063, R. S. This could only be done on the theory that such infants are, in equity, the real owners. This construction has been given by the court of appeals to the corresponding section in New York. It is there said that the section treats .such accumulation “as .the property of the minor, the enjoyment of which has been postponed.” Pray v. Hegeman, 92 N. Y. 516. According to that section, the . question whether such rents and profits aré to be treated as vested or contingent, depends upon whether the infants, for whose benefit such accumulation is directed to be made, are “ entitled to the expectant estate.”

As we have already shown, the remainder in fee to the lands of which the testator died seized, vested immediately upon his death in the grandchildren living at the time, subject to open and let in after-born grandchildren, and the legal issue of any predeceased grandchild by way of representation, and to divest such grandchildren as may die without legal issue. So we have shown that bequests of legacies and personal property, when the payment or distribution is to be made at a future time certain to arrive, and not subject to condition precedent, are deemed vested when there is a person in being at the time of the testator’s death capable of taking when the time arrives, even though his interest is liable to be defeated altogether by his own death, or to be diminished by future births. The mere fact that the use or fractional interest in the accumulation directed, which became vested in each grandchild living on the death of the testator, was liable tó' shift to the legal issue of any predeceased grandchild, or, in the absence of such legal issue, then to the surviving grandchildren, did not render so much of the direction as' is confined to the minority of such grandchild while living invalid. Harrison v. Harrison, 86 N. Y. 543; Gilman v. Reddington, 24 N. Y. 9; Monarque v. Monarque, 8 Abb. N. C. 102. The fact that the right to such accumulation did vest in the grandchildren living at the death of the testator, subject to open and let in others as indicated, seems to be established not only by what has been said and the authorities cited, but others. ’ See, also, Everitt v. Everitt, 29 N. Y. 40; Lovett v. Gillender,35 N. Y. 617; Manice v. Manice, 43 N. Y. 305; Knox v. Jones, 47 N. Y. 390; Embury v. Sheldon, 68 N. Y.227; Stevenson v. Lesley, 70 N. Y. 512. Some things said in. some of the'New York cases may at first view appear to be inconsistent with some of the positions taken herein, but on examination it will be found that they either related to personal property, and are under a different statute, or the power of alienation was unlawfully suspended, or they were otherwise distinguishable, as in Pray v. Hegeman, 92 N. Y. 508, and Barbour v. De Forest, 95 N. Y. 13.

It follows that the infants living'at the time of the-death of the testator were entitled to the expectant estate, and hence became thereupon, and by virtue of the residuary bequests in the fourth clause of the will, the owners in point of right of such accumulation, subject, of course, to having the quantity of their interests therein diminished by future births. For instance, the grandchild born since the testator’s death, immediately upon her birth became vested in point of right to her fractional share of such subsequent accumulation. The same will be true on the birth of any future grandchild. We therefore conclude that such accumulation is not wholly void merely because some of the infants for whose benefit it was made were not in existence until after the death, of the testator. Gilman v. Reddington, 24 N. Y. 9; Harrison v. Harrison, 36 N. Y. 543; Woodgate v. Fleet, 64 N. Y. 566; Stevenson v. Lesley, 70 N. Y. 512. In Manice v. Manice, 43 N. Y. 305, it was expressly-held that an accumulation out of the rents and profits of real estate for the benefit of an unborn child, to commence after his birth and terminate with his minority, was lawful if it commenced within the time permitted for the vesting of future estates.

The view we have taken renders it unnecessary to determine whether an accumulation for the benefit of minors, to , whom only a contingent interest in the estate is given by the will, would be valid. In' New York it has been held ..that, contingent remainders, and trusts for accumulation were valid as to real estate, but void as to personal property. Manice v. Manice, supra. In that case it is beld that “if the estate limited to the infant is contingent, an accumulation of the income during his minority cannot be said to be for his benefit.” But that question is not here involved, because here, as we have shown, the future estate is vested in the infants.

The statute expressly declares that such accumulation must terminate at the expiration of the minority of the person for whose benefit it is directed. Sec. 2061, E. S. It goes further, and declares that if the direction for such accumulation is for a longer time than during the minority of the persons intended to be benefited thereby, then it shall be void as to such additional time. Sec. 2062. Erom these provisions we are authorized to infer, and must infer, that such accumulation is valid during such minority. Such is the conclusion of the New York courts. Gilman v. Reddington, 24 N. Y. 9; Robison v. Robison, 5 Lans. 165; Simpson v. English, 4 Thomp. & C. (N. Y. Sup. Ct.), 80. The same rule was maintained in the English cases cited.

But in case all of the grandchildren live until the youngest becomes of age, then, in the course of events, the oldest must become of age long prior to the youngest. Assuming that the daughters, or one of them, continue to live until the youngest grandchild becomes of age, then the question recurs, "What becomes of the accumulation in the interim? Must the several shares of all the grandchildren be paid over when the oldest becomes of age? Or is the share of each grandchild to be paid over to him on his becoming of age, and so on?

Under the statute, the devises of the remainder in fee of the lands to the grandchildren by the fourth clause of the will, must be construed to create in them estates in common, and not in joint tenancy. Sec. 2068, E. S.; Monarque v. Monargue, 8 Abb. N. C. 102. The same seems to be true of tbe bequests therein to them which cover and include the rents, issues, and profits. Thus it has been held in New York that such bequests constituted the legatees tenants in common, and that they took distributively, and not jointly. Everitt v. Everitt, 29 N. Y. 39. Such is the general rule. The fourth clause of the will gives the residue and rer mainder to the surviving grandchildren in severalty as tenants in common and not as joint tenants. Stevenson v. Lesley, 10 N. Y. 512. Under it, as we have seen, a fractional share of such an accumulation in point of right became vested in each grandchild living, immediately upon the death of the testator. This being so, the fractional share of each grandchild to such accumulation must, if the statute will permit, be treated by itself, in considering whether the direction to accumulate is valid or void. The statute seems to contemplate the same thing. It provides, in effect, that when, in consequence of a valid limitation of an expectant estate, there is a suspense of the power of alienation, or of the OAvnei’ship, during the continuance of which the rents and profits are undisposed of “ and no valid direction for their accumulation is given, such rents and profits shall belong to the person presiom-ptively entitled to the next eventual estate.” Sec. 2064, R. S. “ That is the estate xvliich is to take effect upon the happening of the event which terminates the accumulation. Those who presumptively will be entitled to receive the rents and profits when the period of accumulation ends, are entitled to anticipate the event which is to tenninate the accumulation, and to take at once the rents and profits which are undis-posed of or unlawfully directed to be accumulated.” Manice v. Manice, 43 N. Y. 383. It will be observed that this section does not refer to the “ persons,” “ minors,” or “ infants ” in the plural, as in the other sections, but to them distributively, as “ the person presumptively entitled; ” indicating that, as each minor becomes of age, he may take his distributive share, and allow such accumulation to go on as to the others. This view is strengthened by the section which declares that if such accumulation be for a longer time “than during the minority of the persons intended to be benefited thereby, it shall be void as to such additional lime.” Sec. 2062. Being only void for the time such accumulation is directed in excess of the minority of the person to be benefited, it cannot have that effect as to the distributive shares of those who continue to be minors after the oldest grandchild becomes of age. It follows that when the oldest grandchild entitled to such fractional share of such accumulation becomes of age, then his share must be passed over to him, and from that time forward such oldest grandchild will take his share as it accrues, and the accumulation will thereafter continue only as to such as have not yet be.come of age, and so on from time to time as each of the others become of age. This view of the statutes has been sanctioned in New York. Gilman v. Reddington, 24 N. Y. 19; Grant v. Grant, 3 Redf. 290; Schettler v. Smith, 41 N. Y. 328; Embury v. Sheldon, 68 N. Y. 228. Thus, in Gilman v. Reddington, supra, it is said: “ This direction is void so far as it includes any period of time beyond the minority of the children respectively.”

But what has been said in reference to illegal accumulations applies only to rents and profits of real estate, whether such as the testator owned at the time of his death, or such as have since been, or may hereafter be, purchased by the' executors. Our statutes do not extend to accumulations from personal property. Notwithstanding the real and personal property is given by the same clause of the will and upon the same trusts, yet they are severable, and the validity of the one does not depend upon that of the other. Knox v. Jones, 47 N. Y. 389.

Of course, the peculiar wording of the bequest to Henry in the second clause of the will has no reference to the rents and profits of tbe real estate undisposed of during tbe byes of tbe daughters. Tbis being so, be is to share in them the same as tbe other grandchildren, and upon bis becoming of age be is to receive bis proportionate share of tbe amount then so accumulated, and annually as it accrues thereafter, and so on with tbe next oldest grandchild, from time to time, until they all become of age.

It is urged that by tbe peculiar wording of tbe second clause of tbe will tbe annuity therein given to Henry wifi not commence until “from and after tbe time when be shall attain tbe age of twenty-five years.” In construing tbis clause it should be remembered that by virtue of tbe fourth clause of tbe will as construed, Henry and tbe other grandchildren living on tbe death of tbe testator, at once took a vested interest, either legal or equitable, in tbe entire estate, subject to tbe provisions of tbe will. We have also seen that each became vested in point of right to a fractional share of any accumulation arising from tbe estate. Tbe words “ after tbe death of my said daughters,” in tbe fourth clause of tbe will, we have construed to relate solely to tbe time of enjoyment and complete possession and title. How are tbe similar words as to tbe annuity of Henry, in tbe second clause of tbe will, to be construed? It has been urged that an intention to discriminate against Henry and' in favor of tbe other grandchildren must be inferred from tbe circumstance that Henry was to receive and bad re- ■ ceived $15,000 from a trust fund in tbe bands of bis grandmother ; but that provision was made long before Henry was born or bis mother married, and was not made for Henry, but for bis mother, in common, as we assume, with tbe testator’s other daughters. Henry only got it by virtue of bis mother’s death. Had either of tbe other daughters died, leaving but one child, such child would, it is presumed, have inherited from its mother tbe same amount.

It does not appear to us that tbe circumstance of Henry having received the amount named through his mother, should be regarded as evincing an intent to discriminate against him. The testator seems to have regarded Hetvry with friendship and affection, and expressed an intention of providing liberally for him. The language of the second clause is in prcesmti: “ I give and bequeath to my grandson Henry T. West, Jr., . . . one twenty-fourth part of the net income of my estate during his natural life, so long as either of my said daughters shall live.” Of course, on the death of both daughters he would come into the enjoyment and complete possession and title of his share of the entire estate. Hence the annuity was to continue “during his natural life,” but terminate with the death of both daughters. If both daughters should die prior to his attaining twenty-five years of age, then, according to the construction sought to be given, the clause would be ineffectual for any purpose. In that event, the words “ during his natural life ” would be without any significance whatever. In that event, which is liable to occur at any time, Henry would get an equal share with the other grandchildren of the whole estate under the fourth clause of the will. This being so it would seem that, if the testator cherished a purpose to discriminate against Henry and in favor of the' others, he would have manifested the same by some apt expression in that clause of the will. This he did not do. On the contrary, that clause is replete with expressions indicating that he intended they should all share alike. It is expressly given to the grandchildren “ in equal parts.” In the case of the other grandchildren, the bequest of net income was to his daughters, “ respectively, for the use and benefit of each of their grandchildren, during the natural lives of such children, ... so long as either of my said daughters shall five.” The words here used to express the duration of such annuity to such grandchildren seem to be quite similar to the words quoted with respect to Henry. Of course, such daughters were each tbe natural guardian of her own children. But Henry's mother was dead. His share of the net income, if any, was to be preserved by some one else until Ilenry reaches an age when he can with safety be intrusted with its possession and enjoyment. That time, in the mind of the testator, seems to have been fixed at twenty-five. If accumulated until that time, and then given into Iris possession and enjoyment, it would obviously be sufficient to then start him well in business. The principal purpose of the testator seems to have been to tie up his property- and accumulate its income for thó enjoyment of his grandchildren at some remote period. So we conclude that it is but an expression of the intention of the testator, and does no violence to the language employed, to hold that the words “ from and after the time when he shall attain the age of twenty-five years,” refer to the time wdien it was designed that he should come' into the complete possession and enjoyment of such fractional share of such n§t income, and not to the time when it became vested in him in point of right. This construction is sustained by the reasons given and the authorities cited in another branch of this opinion. See, also, Everitt v. Everitt, 29 N. Y. 40; Lovett v. Gillender, 35 N. Y. 617; Livingston v. Greene, 52 N. Y. 118; Embury v. Sheldon, 68 N. Y. 236; and cases cited in the brief of counsel for Henry. Of course, such accumulation of Henry's share of the net income can only be lawfully continued during Henry's minority. When he becomes of age, then, whatever accumulation there may be of his share of the net income, directed by the second clause of the will, must be paid over to him, and thereafter annually, as it may accrue.

In so far as the conclusions of law of the trial court are not inconsistent with any portion of this opinion, they are to be regarded as approved. ' The costs and disbursements of all parties in this court are payable out of the estate. The county court will make suck allowance to tbe respective parties out of tbe estate for counsel fees, as, in tbe exercise of a sound discretion, may be just.

By the Oourt.— Tbe judgment of tbe county court is reversed on both appeals, and tbe cause is remanded witb directions to enter judgment in accordance witb this opinion.

A motion for a rebearing was denied September 22,1885; and tbe following opinion was thereafter filed: