In re the Estate of Hulse , 42 N.Y. Sup. Ct. 331 ( 1885 )

Barnard, P. J.:

As to one-half of the estate there seems to be no real question. Jesse S. Hulse died in 1844 leaving a will. The fund derived from certain lands was to be held by the executors, and the proceeds paid to his widow during her life. “ If she should have heirs of my body they to be supported and educated out of it, and at the age of twenty-one years to have one-half of the property, and at the death of the said Sarah J. the remainder.” The widow had a posthumous child born a few weeks after testator’s death. This child lived to be over twenty-one and clearly became entitled to one-half of the fund. The will further provides that “if at the death of my wife Sarah J. there should be no heirs of my body living, that I bequeath the proceeds of the real estate to Nathan Emmet Hulse and Charles S. Hulse (equally), sons of my brother Silas Hulse.” Nathan Emmet Hulse died before the testator’s child did, and there are presented two questions:

Did testator’s child take a vested estate when he became twenty-one in any part of the fund, and, if so, in what part ?

Did Nathan Emmet Hulse take anything under the will, his death having occurred while testator’s son was living and before the widow’s death? The testator never anticipated the state of facts which existed at the death of his widow. If the testator had a child he intended that child to take his property entirely, one-hplf at the age Of twenty-one and the remaining half at his mother’s death. He did not survive his mother, but there is nothing in the language which postpones the vesting of the entire estate a moment beyond the age of twenty-one years. If it were not for the words of bequest to the nephews the whole estate would belong to the son, possession only postponed as to one-half to the time of the death of the mother. I am inclined to .think that the son took all; notwithstanding the bequest over in case “ there should be no heirs of my body living” at his widow’s death. The two bequests cannot stand entirely. If the son gets half the nephew cannot get the whole at the widow’s death, unless there was no son who reached the age of twenty-one years. There was sucb a son and he did arrive at that age. The gift to the son is absolute, partly in fact delivered in possession. There are no words indicating an intent to reduce the gift to a life estate. No bequest over is made, except in default of heirs of his body. There is, therefore, no reason to believe that, if the testator had a child reach twenty-one years of age, he did not intend to give him the whole estate. The bequest over is of the whole estate, and one of the nephews died before testator’s child. He took .nothing, for two reasons : Eirst. The testator’s child had a fee liable to be divested • by death it is true, but was not so divested at the death of- the nephew. The child of the testator must die, and the widow also, before this deceased nephew could take. Neither contingency happened. A legacy can lapse when it is not vested by reason of the death of the legatee, even after the testator’s death. Nathan Emmet Hulse had no interest in the estate of the deceased, and the petition was, therefore, properly dismissed.

The judgment of the surrogate should be affirmed, with costs.

Dykman and Pjratt, JJ., concurred.

Order of surrogate affirmed, with costs.