Patterson, J. :
This suit was instituted by a trustee of a testamentary trust, having in his possession securities of considerable value, constituting a part of the trust estate. The purpose for which the trust was primarily established and created having been accomplished, its capital, which consists of personal property only, is in condition to be distributed to or among those who may be entitled thereto, freed from the trust. Various defendants having advanced adverse claims to the funds or securities in his hands, the plaintiff filed his bill, praying that judicial construction be given to the will of the testator, and that the rights of the claimants of the fund represented by the securities referred to be settled and determined by the court. The controversy, as it comes before us, is between those parties, cross.service of their answershaving been duly made, as is required in such cases. The contest arises under a foreign will, and is to be disposed of by the ascertainment and application of rules of foreign law. There are no claims of creditors involved in any way. Under such circumstances the reasonable and proper course to pursue would appear to be to remit the whole matter of the construction of the will and the distribution of the trust estate to the courts of the country having jurisdiction, of the subject-matter and of the administration of the estate, and where that estate must be finally settled and accounted for (Parsons v. Lyman, 20 N. Y. 104; Despard v. Churchill, 53 id. 198); but in this case the property in the plaintiff’s hands is claimed by residents of the State of New York, who. assert title thereto under the will of the testator, and it is urged that the property being within this jurisdiction, and all the parties who claim as distributees being before the court, the resident claimants should not be subjected to the expense, delay and uncertainty of judicial proceedings in a foreign land, but that their rights, if any exist, should be protected and enforced in this action. ' Recognizing [506] the force of that position, Ave have considered the whole case and reached the conclusion-that the resident claimants have no such right to the property here, as Avould require us to award it to them in this action.
The case comes up on appeal from a judgment entered at Special Term, by which construction was given to certain clauses of the w-ill-of James Shaw Taylor, a British subject and a resident of England, who died in that country in 1862. The will was duly admitted to probate by the court Imdng jurisdiction in England, but it was never offered for probate in the State of New York. The testator appointed George W. Taylor, Abel H. Shaw and another person, executors of his will and trustees of the trusts therein created. George W. Taylor and Shaw duly qualified and received grant of probate or letters testamentary. The third person never qualified. SliaAV died in 1866, and George W. Taylor in 1879. They had authority by the will of their testator, James Shaw Taylor, to appoint trustees to succeed them. Shaw did not exercise that poAver, and George W. Taylor continued as sole trustee until his death. He left a aaüII and appointed the present plaintiff, Simonson, and J ohn T. Lord, executors thereof. This will was duly proven both in New York and in England. Lord qualified as executor in England and Simonson in New York. By a provision of this will, but not otherwise, the trusts under the will of James Shaw Taylor devolved upon Simonson and Lord as trustees. The securities now in the plaintiff’s possession were situated in New York, and Mr. Lord, on his own petition and under authority of a decree of this court, Avas discharged from the trust and the securities Avere thereafter- left in the sole possession and management of Mr.’ Simonson. Sometime in 1883, the High Court of Justice in England, in the Chancery Division, upon application duly made, appointed William S. Barton, Robert Heap and Edward Atkinson, trustees of the real and personal estate of James Shaw Taylor, in. substitution for the original trustees named in the will of that gentleman. Barton and Heap died in 1891; Atkinson, having power to do so, associated with himself in the trust, Robert J. Fletcher and Walter Hennop, and they are now the trustees of the estate in England, and were acting as such in February, 1892, the date at which the express trust virtually expired.
[507] James Shaw Taylor left him surviving an only child, Amelia Hannah Taylor. In 1868, she married, the defendant Joseph Beaumont Atkinson. The other next of kin of James Shaw Taylor living at the. time of his death were three sisters, Lavinia Waller,.Mary Lord and Sarah Taylor. The last named died before this action was begun and without issue. Lavinia Waller died in 1885, leaving children, who are parties hereto. Mary Lord also died before this action was brought, and her children who survived her, and certain of her grandchildren whose parents died before Mary Lord did, are defendants also. Amelia Hannah Atkinson (Taylor) died in 1892, without ever having had issue. By her last will and testament she bequeathed all her estate, except a legacy to her aunt, Mrs. Waller, to her husband, Joseph B. Atkinson. Her will was duly proven in England.
The will of James Shaw Taylor was executed in the lifetime of' his wife and in anticipation of other children being born to him. It was drawn with great care and particularity., and provided for almost every conceivable contingency, except the one that occurred, an omission which, from the general structure of the instrument and the comprehensiveness of its provisions, seems to have been not accidental or inadvertent. After granting annuities to certain persons and making provision for his wife, he gave a legacy of £2,000-sterling to his daughter “ if and when she shall attain the age of twenty-one years or previously marry.” That is the only direct gift in terms the testator made to his daughter. He devised and bequeathed all his real and personal estate to his executors in trust,, to convert the same into money, and (among other things) to invest £2,000 and hold the same in trust “ during the life of my sister Lavinia Waller, the wife of Alfred Waller of the city of New York,” and to “ pay the interest and annual income thereof and of the investments for the time being representing the same unto the said Lavinia Waller,” etc., and from and after her decease to hold “ the samé legacy and the investments-for the time being representing the same and the interest and income thereof in trust for all the children or any the child of my said sister, who, being sons or a son, shall attain the age of twenty-one years; or, being daughters or a daughter, shall attain that age or marry, and, if more than one, unequal shares.”
Concerning his estate not otherwise disposed of, the testator left [508] to his executors “ in trust for all my children or any, my child, who,, being sons or a son., shall attain the age of twenty-one years, or being daughters or a daughter shall attain that age or marry; and if more than one in equal shares, nrovided always and I declare: that the portion or fortune under this my will of my said daughter Amelia Hannah Taylor, who is at present my only child, shall be held by the trustees or trustee for the time being of this my will upon trust that they or he do and shall during the life of my said-daughter pay the interest and annual income of her said portion or, fortune to her-for her sole and separate use and so that she shall not have power to affect the same in anticipation and that her receipts shall alone be sufficient discharges therefor. And from and after her decease, do and shall hold the same portion or fortune and. the interest and income thereof in trust for all her children living at her' decease and for the issue then living of any her child or chip -dren who shall then be dead, all such children and issue, objects of this present trust, to take in equal shares as tenants in common, if more than one, but so that the issue of any deceased child or deceased children of my said daughter shall through all degrees take such share or respective shares only as his," her or their parent or respective parents would have taken if living at the decease omy said daughter.” It was further provided in the will that, until the testator’s, daughter attained majority or died before so doing or married, the trustees might allow, without liability to. account for the appropriation thereof, £150 sterling annually for her, to be paid “ from and out of the interest and annual income of all and every of the trust moneys to which she shall under this my will he entitled in expectancy as aforesaid, and the investments for the time being representing the same.” Provisions are made in the will for accumulations and for the contingency of the testator dying leaving no living child or issue who being a -daughter shall attain the age of twenty-one years or marry, in which event the trustees are directed to “ hold all the said trust moneys and the investments for the time being representing the same and •the interest and annual income thereof, etc., upon and for such and the same trusts and purposes, and with and subject to such and the same powers and provisions in all respects as are hereinbefore . * * * bequeathed upon trust for" the benefit of my said sister Lavinia [509] Waller, and such her children or child as aforesaid, and the investments for the time being representing such legacy and the interest and income thereof respectively or as near thereto as circumstances will permit.”
Amelia Hannah Taylor having married and died without issue, and no provision having been made by the will of her father for that contingency, the respective defendants contended in the court, below and now claim as follows, viz.:
1. Joseph B. Atkinson, the husband of the daughter of the testator, James Shaw. Taylor, and the sole residuary legatee under her will, claims to be entitled to all the personal property now in the hands of the plaintiff, on the ground that the trust created for the: benefit of the children of James Shaw Taylor vested, on his death, an absolute interest in the whole residuary estate in his daughter, qualified during her life to the receipt of the income only and subject to be defeated by the birth of children, and that upon her death without issue her estate or interest became indefeasible and passed to her husband by the terms of her will or under the provisions of the law of England, or, failing that contention, that if no absolute estate vested in the testator’s daughter and she took only a life interest in the residuary estate, then intestacy was brought about and that the-residuary estate, being personalty (the realty having been equitably converted), it passed to his next of kin, being such at 'the time of his death, viz., his daughter, through whose will, or by virtue of marital relations with whom, her husband would now take.
2. The defendants standing in the place of Mary Lord claim that the testator limited the'interest of his daughter to One for life;: that there is intestacy as to that residuary portion after her death,, and that it now belongs to those who were the next of kin of the-testator to be ascertained as of that time.
3. The children of Mrs. Waller claim that the testator’s daughter had only a life interest and that on her death without issue they took under the will by virtue of that provision which made a contingent disposition of the residuary estate similar to that relating to-the £2,000 legacy to their mother.
The learned justice at the Special Term construed the will in accordance with the contention of the descendants'of Mary Lord,.' and in his decree adjudged that the entire legal"title to the residu[510] ary estate was vested in the trustees in trust; that the testator’s daughter^ Amelia Hannah', took only the right to receive the income of that estate and had no. control or right of disposition over it; that no interest in the corpus of the trust estate was in any manner or in any event vested in, conferred upon, or reserved or granted to her;-.that by reason of her death without issue, the,testator died' Intestate as to the residuary estate, such intestacy occurring as of the date of his daughter’s death ; that that portion of the residuary estate now ini the plaintiff’s hands is- held by him for the next of kin of the testatpr surviving at the time of the death pf his daughter,, and' distribution is directed in tenth parts among them, viz., the children of Mrs. Waller,, and the children and certain grandchildren of Mrs. Mary Lord.
We are not at difference with the court below in the conclusions at which it arrived concerning the first branch of the- claim of the defendant Joseph B. Atkinson, and for the purposes of .the decision of this appeal shall hold that his wife did not take under the will a vested interest in the principal; of the residuary .estate held in trust by the trustees. Clearly it is the law of England that, where there Is an absolute- gift out of which specific interests are subsequently created and declared, on - the failure of those specific or particular interests the absolute gift prevails. (Whittell v. Dudlin, 2 J. & W. 279; Mayer v. Townsend, 3 Beav. 443 ; Winckworth v. Winckworth, 8 id. 576 ; Gerrard v. Butler, 20 id. 541; Stephens v. Gadsden, Id. 463; Carver v. Bowles, 2 Russ. & M. 304; Cooke v. Cooke, L. R. [38 Ch. Div.] 202.) But in those and in other cases declaratory of the rule and illustrating its application there was an absolute gift in- the- first instance, or one positively indicated in unmistakable' terms. Where the gift is to be- found only in the limitations and'not in- words capable, standing alone and dissevered from a qualify lug- context, of constituting a. complete- gift-, there is. not a vested interest in the principal as a gift, (Lassence v. Tierney.,. 1 MacN. & G. 551; Gompertz v. Gompertz, 2 Phill. 107; Savage v. Tyers, L. R. [7 Ch. App.] 356;). The rule is stated by Lord- Cotten-ham thus-: “ If a testator, leave alegacy absolutely as regards, his estate,, but restricts; the inode of . the legatee’s en joyment of it to secure- cer* ,-tain Objects for -the benefit off the legatee; upon- failure of such; -objects the. absolute,gift prevails, but, if- there be no .absolute, gift, m [511] between the legatee and the estate, but particular modes of enjoyment are prescribed and those modes of enjoyment fail, the legacy forms part of the testators estate as not having in such event been given away from it. In the latter case the gift is only for a particular purpose ; in the former,, the purpose is the benefit of the legatee as to the whole amount of the legacy, and .the directions and restrictions are to be considered as applicable to a sum no longer part of the testator’s estate, but already the property of the legatee.” (Lassence v. Tierney, supra) And In re Merceron's Trust (L. R. [4 Ch. Div.] 188) it is said : “ The rule which has been laid down in Mayer v. Townsend, and Whittell v. Dudin, and has been followed by the House- of Lords, and may be considered as settled, may be stated thus: Whenever a will gives property to a person absolutely, and then proceeds to dispose of that property for the benefit of thedonee for life, and afterwards for children of the donee, and it turns out that there are no children to take, the cutting down fails and the original gift remains, and as it was absolute, so it remains absolute.”
The question here is purely one of the intention of the testator, James Shaw Taylor. Did he intend an absolute gift to his daughter of the whole- residuary estate, to be cut down by subsequently carved out contingent interests and defeasances ; failing which the integrity of the original gift was to be preserved and the whole residuary estate to be at the disposal of the daughter as her absolute propr' erty? We are speaking now of the intention as gathered from the will and its dispository provisions and cannot search elsewhere for it. We have looked in vain through this instrument for satisfactory evidence of such an intention as that ascribed to the testator by his daughter’s husband. If it is to be found, it is not in mere words of trust for the benefit of certain cestuis que trust. The description of beneficiaries is not the whole of the gift. By the terms of the trust the benefit is expressly confined to’ income, and its bestowal can scarcely be regarded as an absolute gift of that out of which the only benefit given is to arise. It is not contained in the sentence of the trust declaring that trust for the testator’s child or children, but it would arise if at all by force of the phrase “ portion or fortune * * * of my said..daughter ” applied to the. trust estate. But these word's may well be merely those of distinguishing reference and not of [512] absolute donation. There is no direct gift in the first instance, to the daughter "with a trust then constructed upon that gift "which would defeat the absolute gift only pro t.anto. The absence of direct words of gift to the daughter is not conclusive, but it is a material circumstance. The absolute gift may doubtless be incorporated in the trust provisions; such cases from the English books are cited by counsel; but here the gift of the estate is directly and exclusively to the trustees, is scrupulously kept from the control of or disposal by the daughter; the provision for her is expressly confined to the enjoyment of income, and not even a power of appointment is given her of the principal. The trustees take the whole title and estate for the purposes of the trust. It is going too far to infer an absolute gift from the mere use of words susceptible of a different con-, struction and which do not have a fixed and settled judicial meaning. The careful exclusion of words of bequest to the daughter is, iii this connection, of marked significance. There was a direct gift to her, that of the £2,000, previously mentioned. The inference would seem to be that that was the only part of his. estate the testator intended should be at the absolute disposal of his daughter or vest absolutely in her under the will. The second branch of the contention of the defendant Joseph B. Atkinson will be examined later.
We have next to consider the claim of the defendants, the children of Mrs. Waller. Concurring. with the justice at Special Term in the view that Mrs. Atkinson took only a life interest, we also agree with him in his conclusion that the Waller children do not take under the will the residuary estate they claim. The gift over to Mrs.. Waller and her issue was to become operative in the event of the testator’s daughter not attaining the age of twenty-one years ór not marrying. There is no authority in the court to enlarge or broaden the terms of the will respecting this bequest of a remainder. The argument on behalf of the Waller children is that as the provision of the will now under consideration declares in substance that if the testator’s daughter should die before attaining full age of marrying, all the residue of his estate should go to Mrs. Waller or her" children; that “ the attainment of majority or marriage of Amelia was the one - sole thing which at that time .stood between the Waller children and this inheritance; ” that “ the only influence' which that majority or marriage could have upon-[513] this succession was the birth of children of Amelia,” and that “ in the absence of. absolute ownership at any time in Amelia and in default of her having issue it is not unreasonable to suppose that testator intended that same right of succession to have effect.”
The whole argument rests on supposition, principally that the testator intended to die fully testate and to benefit the Waller children next to his daughter. Of course intestacy will not be adjudged if the contrary can by any reasonable theory be determined, and the law favors vesting, but we are led by this argument into the very cloud region of speculation. It is inferable from the whole will that the testator did intend to die intestate as to his residuary estate in default of issue of his daughter and to leave its distribution to the law of his country. His will was drawn with great precision, evidently by an experienced and able draftsman, who did not servilely follow precedents from books of forms, but who comprehended and fully expressed what was contained in his instructions for the will, and there seems to have been a clear purpose to omit all reference to a disposition over in the event of Amelia marrying and not having children. A provision of that character would be about the first thing to suggest itself to an experienced and instructed lawyer, and we cannot import into this will, on a mere hypothetical intention, one that would give this large property to these particular claimants.
But with respect' to the judgment of the court below declaring that the residuary estate passed to the next of kin of James Shaw Taylor, to be ascertained as of the time of the death of Mrs. Amelia Hannah Atkinson, and awarding the' fund in the plaintiff’s hands to the descendants of Mary Lord and to the Waller children, the learned judge was led into an error by following what was held in Savage v. Burnham (17 N. Y. 563), but which is entirely at variance with the rule adopted and announced by the English courts and text writers. That case is a leading authority often fol-. lowed in our courts on other questions involved in it, but the point now under consideration was there altogether a subordinate one. It came up incidentally, as to a share of an estate held, in trust for the benefit of the testator’s son Thomas, which share lapsed by reason of the death of Thomas before the period of vesting and passed [514] to the testator’s next of kin. It was held that Thomas was not to be included in the ascertainment of the next of kin, and that “ the devolution, therefore, of the share of Thomas upon tlie' next of kin of the testator must be deemed to have taken place at the time the share lapsed, and not at the testator’s death.” The reason stated for so holding is, “this avoids the incongruity which has been suggested of Thomas taking, as one of the testator’s next of kin, a'portion of a share lapsed by his own death.” No authority is cited by the very learned and distinguished judge who wrote for the court in that case to support that particular ruling. It was not made in accordance with any contention of counsel. The point was. never taken or claimed or raised in any form, The cause was not heard at the bar, but was submitted on printed arguments, in none of which is there even the most remote reference to such a proposition as the court laid down respecting the share of Thomas. - The question here is, what' is the law of England on this subject, not what do we think of its consistency. If we find its judicial expounders and approved text writers declare a certain-rule to be the law of that realm, we must be governed by that rule. In matters of contract, on the question of validity we give effect to foreign law, though contrary to our own (Staples v. Nott, 128 N. Y. 403), and the same rule applies to the disposition of the personal property of a decedent distributable under the statute of a foreign country. To use the language of Allen, J., in Chamberlain v. Chamberlain (43 N. Y. 424), “ the law of the testator’s domicile controls as to the formal requisites essential to the validity of the will as a means of transmitting, property, the capacity of the testator and the construction of the instrument. Personal property has no locality (the: learned judge was speaking in the general sense), and, therefore, the law of the domicile of the owner governs its transmission either by last will and testament or by succession in case of intestaeyP
The question respecting the time at which the next of kin is to be ascertained seems to have arisen in the English courts more particularly in cases in which, on the failure of particular devises or bequests, gifts over have been made specifically by the testator to the next of kin, and, as stated by Malins, V. C., in In re Morley's Trusts (25 Wkly. Rep. 825), the general rule is that the class is ascer[515] tamable at the testator’s death, but that in the case of a will the intention of the testator would, of course, prevail if another period were fixed thereby. There are numerous cases holding that where the gift over is to the next of kin generally, the distributees are not limited to those designated in the statute, but where it is to the next of kin, to be distributed in accordance with the Statute of Distribution, that statute strictly applies. Where the gift is of a life interest, and upon the failure of the remainder the residuary estate passes to the next of kin, which, in this case, must necessarily be the next of kin under the statute, it has been expressly decided by courts of the highest authority in England that the life tenant being one of the next of kin does not prevent a share of the residuary estate passing to him. It was said in Wharton v. Barker (4 Kay & J. 483) that where there is a limitation by will to one for life, and then after his decease to the next of kin of the testator, those who are to take under the designation next of kin, are the persons answering that description at the death of the testator and not those answering that description at the death of the tenant for life, and that the mere circumstance that the person to whom such previous life interest is bequeathed by the will is also a member of the class answering to the descrijDtion of the next of kin of the testator at the time of the testator’s death, does not prevent the rule from applying. The learned vice-chancellor in that case further states that where a person to whom such previous life interest was bequeathed by the will is the only individual so answering to that description, the authorities have not been quite so clear as to the construction to be put upon the gift over. In Bullock v. Downes (9 H. L. Cas. 1) the residuary estate was given to trustees in trust to pay dividends to the testator’s son for life, and after his death to pay an annuity to his son’s widow if he should leave one and the residue to his son’s children, and then to stand possessed of the same in trust for such persons of his blood as would under the Statute of Distributions have become and been then entitled thereto in case he had died intestate. The son married, took the dividends during his life and died without having had issue; it was held that the persons who were entitled as next of kin were to be ascertained at the death of the testator ; that the son was tine of those persons and that his right as one of the next of kin was not impaired by the previous gift of [516] a life interest in the whole residue, and the testator having left daughters, the personal representatives of the son took one-fifth the residue. Other cases have been referred to by counsel which fully sustain the same general rule, and, we are now to consider particularly whether there is any modification of the rule in a case, where the life tenant is the sole next of kin, and which presents the feature of the incongruity referred to in the Burnham case. The authorities on this subject have been collated and commented upon in Jarman on Wills (5th Am. from 4th Lond. ed., vol. 2, p. 677). The learned editor cites various cases, and from them declares that the law on [the much disputed point is settled in the English courtsand that the tenant for life being the sole next of kin is not sufficient to' exclude him from taking a devise or bequest to the next of kin. The case of Pearce v. Vincent (1 Cr. & M. 598) referred to devise of real estate, and as to personalty Urquhart v. Urquhart (13 Sim. 613), Seifferth v. Badham (9 Beav, 370), Nicholson v. Wilson (14 Sim. 549), and- numerous other cases referred to in the note on page 680, fully sustain the statement of the author. Those cases have been examined and are in point. Now, of course, the question in this case does not arise under any express provision the will: With reference to the subject the will of James Shaw Taylor is absolutely silent. Such being the case, the residuary estate, which is -in the hands of the trustees, must be- held by -them upon a results ing trust' for those who. would be entitled, to the fund by the law of England. There is but one law applicable, and that is the Statute of Distributions in cases of intestacy, and under that statute the person who- would be entitled as next of kin of the testator at the time of his, death was his daughter, Amelia Hannah Atkinson. Whether it is inconsistent or not, such is clearly the law which com trols this case. But from the mere fact of the testator intending his daughter should not take under the will, the deduction is not inevitable that it was-his purpose she should not take- as-next" of kin finder the statute. The intention of the testator may reasonably have been to prevent the disposition of "his residuary estate depending upon the caprice- of his daughter, or possibly being subjected to' the interference of designing strangers exerting an influence upon an inexperienced woman,- and, as has been well said, it is fair to infer that the testator concluded to leave -the disposition,- of this residuary [517] estate to the law, and not.to make any disposition of it beyond a certain point, and to let it go to those to whom the law would give it. Having reached the conclusion that the resident claimants, namely, the children of Mrs. Waller, are not entitled to the fund in the hands of the plaintiff, and that the distribution should not be made, as decreed by the learned judge at Special Term, it becomes unnecessary for us to award the fund to any of the claimants, but merely to reverse the judgment of the court below and direct that the fund or property now in the hands of the plaintiff be transmitted to the trustees in England appointed by the High Court of Justice in order that distribution may be made in accordance with the statute of that country. The property here is only a part of the trust estate, the bulk of which, we understand, is in the possession of the trustees in England, and the whole property may there be subjected to charges and burdens of which we' have no knowledge or information, and for which those trustees may be compelled account, and it is important to the protection of the interest of Mr. John T. Lord that the property now in New York should be transferred to the English trustees, as there may be a possibility of being held accountable for transferring the sole possession to Mr. Simonson.
The judgment of the court below must be reversed and judgment entered in accordance with this opinion, and providing for an accounting by the plaintiff to be had before the referee named in the decree of the Special Term, the plaintiff to be allowed the compensation to which he is entitled by law and the costs and expenses of this action.
Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.
Judgment reversed and judgment ordered in accordance with opinion.