Opinion
March 11, 1910.
Henry C. Botty, for the appellant.
George Haas, for the respondent.
This is an appeal by Rose Walters, as administratrix, etc., of Wilhelm Gieseler, deceased, from so much of a final decree of the Surrogate's Court as provides that a certain legacy of $2,000 contained in the will of Albert Gieseler, deceased, is payable to the German Hospital, the residuary legatee named in said will.
There is no dispute as to the facts. By his will, Albert Gieseler, after certain specific legacies, gave his entire estate to his executors in trust to pay over certain sums to certain specified persons. He directed them to retain and invest the sum of $2,000 for the benefit of his son Wilhelm, paying him the interest annually until he arrived at the age of twenty-five years, and then paying him the principal. Then followed the provision which has given rise to this controversy. It reads as follows: "To retain and invest the further sum of two thousand ($2,000) dollars and to pay the income thereof to the guardian of my said son, Wilhelm Gieseler, for his benefit during his minority, and thereafter to him personally, until he attains to the age of thirty (30) years. And, if in the opinion and judgment of my said trustees, my said son shall have led a good and honorable life during said time, they may pay the said additional sum of two thousand ($2,000) dollars to him absolutely.
"And if at any time during the period for which the said additional sum of two thousand ($2,000) dollars is so held in trust for my said son, his conduct shall be such as not to meet with the approval of the said trustees, then I hereby authorize and empower them to revoke the trust and gift of such additional sum of two thousand ($2,000) dollars and direct them to pay the same to my brothers Gustav Gieseler and Wilhelm Gieseler hereinafter named in equal and like shares."
Wilhelm Gieseler died soon after attaining the age of twenty-one years. It is conceded that up to the time of his death he led a good and honorable life, and that the executors of his father's will never revoked the gift to him. This fact precludes any claim on the part of the brothers of the testator for the gift over to them was expressly conditioned upon a revocation of the gift by the executors. The only question remaining is whether in consequence of the death of Wilhelm before attaining the age of thirty years, the legacy lapsed and went to the residuary legatee, or whether Wilhelm had such a title to or interest in the corpus of the fund as survived his death and became a part of his estate. The learned surrogate took the former view. We incline to the latter. An analysis of the will shows that it was the purpose of the testator to set apart and segregate this sum of $2,000 from the rest of his estate, and to create it a separate fund, as to the disposition of which he gave special instructions. The fund was to be held primarily for the benefit of Wilhelm who was to receive the income until he arrived at the age of thirty years, and then, if he lived a good and honorable life, the principal was to be paid over Only in the event that his conduct failed to meet with the approval of the trustees, and they affirmatively revoked the gift was it to be lost to Wilhelm. Under this clause Wilhelm took a vested interest in the principal of the legacy, notwithstanding the fact that the clause contains no words of gift to him, but merely a direction to the executors to pay over. The rule applicable to the case is thus laid down in Warner v. Durant ( 76 N.Y. 133), which dealt with a somewhat similar bequest: "Where the gift is to be severed instanter from the general estate for the benefit of the legatee, and in the meantime the interest thereof is to be paid to him; that is indicative of the intent of the testator that the legatee shall, at all events, have the principal, and is to wait only for the payment until the day fixed." (See, also, Bushnell v. Carpenter, 92 N.Y. 270.) The son Wilhelm, therefore, took under the will a present vested interest in the fund, subject to being divested upon the happening of a condition subsequent. Such an interest is descendible and devisable. ( Kenyon v. See, 94 N.Y. 563.) Since Wilhelm has now died the condition upon which his interest might be divested cannot arise. Hence he retained his vested interest until his death, when it became a part of his estate and passed to the administratrix to whom it should be paid. The decree in so far as appealed from is, therefore, reversed and the proceedings remitted to the Surrogate's Court for the entry of a decree in accordance with this opinion, with costs to the appellant to be paid out of the estate.
CLARKE, McLAUGHLIN, MILLER and DOWLING, JJ., concurred.
Decree so far as appealed from reversed and proceeding remitted to the surrogate for further action in accordance with opinion, with costs to appellant to be paid out of the estate.