Talmadge. v. Williamson , 2 Redf. 453 ( 1877 )

The Surrogate.

Upon reading the peculiar language of the will in. question, it occurred to me whether there was not a distinction to be recognized between those bequests which the will gives in prcesenti, to a legatee, subject to a life interest, and those cases where the gift seems to be in futuro, as in this case upon the death of the wife, the trustees being directed to pay and assign over, &c.

But upon a more careful examination and consideration of the case, it seems to me that in the language of the Surrogate in Conklin v. Moore (2 Bradf., 179), this will substantially gave a life estate to the widow, with remainder in equal proportions to the children of his deceased sister, &c.

In the case last cited, the language of the will seems to have been substantially identical with that of the will under consideration. (See also Marsh v. Wheeler, 2 Edw. Ch., 156; Van Wyck v. Bloodgood, 1 Bradf, 172; Hayes v. Gourley, 1 Hun, 38.) Many more authorities might be cited,, but sufficient have been mentioned to establish to my satisfaction, the fact that the legacy of Isabella Talmadge vested at the death of the testator, and therefore goes to her personal representatives.

It was urged on the argument of this matter, that the fact that the testator provided in a subsequent clause of his will, that the bequest to the females should not be for the benefit of their husbands, or liable for their debts, was an indication that hedid not intend to vest the legacies until the death of his widow. But I am not able to appreciate the force of the argument, or concur with the idea that for the purposes of the legatees, and their children, the legacy should be regarded as vested, but for the purpose of preventing the husbands from participation in the testator’s estate, the legacy was to be regarded as contingent.

Let a decree be submitted, distributing the estate as provided by the will, except as to one-fifth interest bequeathed to Elizabeth, deceased, and that share to be given to her personal representatives.