Crossman v. Crossman , 20 N.Y. St. Rep. 144 ( 1887 )

The Surrogate.

Henry C. Crossman attained the age of twenty-eight years, and the testator must be deemed to have intended that then the bequest of $100,000 should vest, although payment was deferred until the death of the testator’s widow.. We are to encourage, always, a construction which leads to the vesting of legacies, and seek diligently for such purpose and intention (Smith v. Edwards, 88 N. Y., 109).

The direction to the executors to pay'the $100,000 to Henry C. Crossman when he arrives at the age of twenty-eight is absolute, save that the executors are to hold that sum, for the purpose of paying the income to the testator’s widow during her life; and it is only in the event of the death of Henry under the age of twenty-eight years that others are to take. The legacy to Henry C*. Crossman vested upon his attaining the age of twenty-eight years, because the statute declares that future estates are vested where there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate (1 R. S., 723, § 13); and it is- further provided that limitations of future or contigent interests in personal property shall be subject to this rule (id., 773, § 2).

Henry C. Crossman, at the age of twenty-eight years, would have an immediate right to the possession of his legacy, upon the ceasing of the intermediate or precedent estate, unless it is conceded as claimed by the contestants there was no gift of this legacy save in the direction to pay upon the death of the testator’s widow, and that, for that reason, vesting was deferred until such event.

The like claim was made in a case.where the wording of the will bore a close resemblance to the wording of the will in question but the court denied the construction here contended for by the contestants (Lane v. Brown, 20 Hun, 382). The cases cited for the contestants mainly arose upon contingent devises and bequests, and deal principally with the statute against perpetuities and with conditions not found in this will. It will be observed that there is no gift over in the event, which has occurred, of Henry dying over twenty-eight years of age during the life of Mrs. Crossman (unless it was to Henry as residuary legatee). It-would be unreasonable to suppose that the testator intended to give to the issue of Henry the fund, did Henry die before he was twenty-eight, and yet intend to cut off both him and his issue, if he died after the age of twenty-eight and during the life of testator’s widow. The technical rule relied upon by the contestants must give way to the intention of the testator where that sufficiently appears. I also think that, if there was a lapse, Henry would take as residuary legatee.

In respect to the income of the residuary estate the executors properly claim that such income devolved upon Henry C. Crossman, under the Revised Statutes (1 R. S., 726, § 40).

The contestants having no interest in this matter, their objections to the executors’ account must be dismissed.