son. At the time of her death a portion of the real estate had not been converted into money. It was held that inasmuch as the will fixed a definite period, to wit, five years, from the death of the testator when she should be paid the balance of her estate, it became due and payable as of that date, and was, therefore, in the law, deemed absolutely vested in her, and that the provision of the will containing a provision with reference to her death before full payment meant death before the expiration of the five years, the time fixed in which her share became finally due and payable. This case I shall have occasion to refer to later on. These are the cases upon which it is contended that we are concluded by authority from giving to the language used in the will the literal meaning which the testator evidently intended, thus preventing the estate from going to his grandchild. In the case of Gaskell v. Harman, 11 Ves. 489-496, the Chancellor, Lord Eldon, in commenting upon the conclusion reached by Lord Thurlow in Hutchin v. Mannington, admitted that he differed from the conclusion reached by his lordship as to the construction given to the will, and that he entertained the view that the natural construction was to the effect that if the legatee should die before the property should be actually paid to him the gift over. would take effect. But he considered the case as an authority to the effect that the language used must be clear and specific, asserting the soundness of the proposition that "if a testator thinks proper, whether prudently or not, to say distinctly, showing a manifest intention that his legatees, pecuniary or residuary, shall not have the legacies, or the residue, unless they live to receive them in hard money, there is no rule against such intention if clearly expressed." And to the same effect is the case of Law v. Thompson, 4 Russ. 92-100. In Johnson v. Crook, L. R. 12 Ch. Div. 639, the testatrix had by her will made certain provisions for Thomas Keeling and Joseph Gill, and then concluded: "But in case the said Thomas Keeling shall depart this life before he shall actually have received the whole of his share of the said residuary moneys, effects and premises, and without leaving any issue of his body living at his decease or born in due time after, then and in such case, and whether the same shall have become payable or not, I direct, limit or appoint that his share of and in all the aforesaid residuary moneys, effects and premises, or (as the case may be) such part and parts thereof as he shall not have actually received as aforesaid, shall be paid, assigned and transferred unto the said Joseph Gill, his executors, administrators and assigns." Joseph Gill died in 1847. Thomas Keeling died in 1850, without ever having been married, and before receiving his share of the residuary estate. The con troversy arose between the executors of their respective estates. Jessel, Master of the Rolls, reached the conclusion that the provisions of the will were clear and specific, and that "actually received" meant "actual ly received," and that there was no statute law or common law which prevented the carrying out of the intention of the testatrix, and that, "if there was anything to prevent it, it must be found in some law manufactured by the judges in the equity jurisdiction"; and, after a consideration of all the cases bearing upon that subject, including the opinion of Lord Thurlow, above all alluded to, he reached the following conclusion with reference thereto: "I should now be establishing a new law applicable to wills if I refused to give the natural interpretation to these words which are so plain and clear as not to be the fair subject of controversy." He therefore held that the interest of Keeling upon his death was given over to Gill, or to his executors, administrators, and assigns. In Re Wilkins, Spencer v. Duckworth, L. R. 18 Ch. Div. 634, the testator, Wilkins, gave his residuary estate to four persons, to be equally divided between them, with a provision that in case either die before the final division of the estate his share should go to his children. Two of the legatees died, more than a year after the death of the testator. The estate had not then been fully distributed. It was held that under the practice of the court 12 months were allowed after the death of the testator in which the executors were required to wind up his affairs, pay his debts, and distribute his estate; that in so far as the two deceased legatees survived that period, their shares became due and payable, and, therefore, the legacy did not go over on their subsequent death. Fry, J., however, in delivering his opinion, expressly concurs in the views of the Master of the Rolls, as expressed in the case of Johnson v. Crook, supra. In Sampson v. Sampson [1896] L. R. 1 Ch. Div. 630, after referring to the cases in which there has occurred a gift over on the death of a legatee before actually receiving his legacy, Sterling, J., says: "These cases are not entirely consistent among themselves; but this at least they establish-that whether or not a testator can effectually cause a vested gift to be divested before it has actually come to the hands of the legatee, such an intention ought not to be attributed where the words are not clear; and in cases where the words are susceptible of such an interpretation, the court has held that the period over which the operation of a divesting clause of this kind is to extend ought not to be held to continue beyond that at which the legacy is de jure receivable." In Whitman v. Aitken, L. R. 2 Eq. 414, the testator bequeathed to his nephew, David Maxwell Aitken, £2,000, "and in case of his death before the same shall be actually paid or payable to him, then the trustees or trustee for the time being of this my will shall stand possessed thereof, or the securities whereon the same shall be invested, in trust for all the children of the said David Maxwell Aitken, whether born in my lifetime or after my decease, who being a son shall attain the age of twenty-one years, or being a daughter or daughters shall attain that age or marry, in equal shares or proportions, and in case there shall be only one such child, then for such one child, and in case no child of the said D. M. Aitken shall acquire a vested interest, then in trust in like manner for all the children of my nephew, J. M. Kitson Aitken." David Maxwell Aitken did die after the testator, and before any part of the £2,000 had been paid over to him or appropriated for that purpose from the estate, leaving an infant daughter. In that case the same claim was made as in this case, that the legacy became vested in David Maxwell as upon the death of the testator. Sir J. Stewart, V. C., in his opinion, said, with reference thereto, that: "Where the language is ambiguous the court will undoubtedly look to the context to ascertain the testator's meaning, and even where the words are clear in themselves they may be controlled by the context. But the first rule of construction is, that where the language of the testator is clear, and involves no inconsistency or contradiction with other parts of the will, those clear words must prevail. In this case the literal meaning is perfectly plain and rational, and must have its due effect. The gift is to D. M. Aitken, but if he dies before it is actually paid or payable, then the property is to be held for his children. It is admitted that the legacy was not paid. Then what is the meaning of the word 'payable'? That refers to the death of D. M. Aitken in the lifetime of the testator. It is, therefore, plain that there were two events, upon the happening of either of which the gift to the children was to take effect. If D. M. Aitken should die in the lifetime of the testator the legacy is not payable, and his children are to take it. If he survives the testator, but dies before the legacy is actually paid to him, his children are to take." In Goulder v. Goulder [1905] L. R. 2 Ch. Div. 100, the testator in his will made provisions for his brother John, with a proviso that in the event of his brother "being unable at the time of my decease, or at any time prior to the actual payment to him of his share, or any part of his share on the division of my estate, to give a receipt to my trustees for his share by reason of his having committed or suffered any act whereby he has deprived himself of the right to the benefit of such share, either in whole or in part, then I direct my trustees to stand possessed of the share of such brother, or that part of such share which my said brother is unable to receive for his own benefit upon trust for the brother's children." When the estate became ready for distribution the brother had been adjudged a bankrupt and a trustee appointed who claimed the fund. It was held, however, that the words "prior to the actual payment" should be read literally, and that the share which the brother was then unable to receive was given over to his children, approving of the case of Johnson v. Crook and the other cases in accord therewith. So much for the English authorities upon the subject. In Tyson v. Blake, 22 N. Y. 558, the testator, after providing for the payment of debts, etc., gave the whole of his estate to his four grandchildren in equal shares. As to Emeline, one of them, he provided that in case she should die without lawful issue, her share should go to the other three. Comstock, C. J.,, says that "Emeline, therefore, took under this will more than a life estate. If she had left children they would have taken, not as legatees of the testator, because nothing was given to them, but in succession to their mother and according to the laws of distribution; in other words, as her next of kin. But a general bequest of personal estate, like a fee in lands, can be subjected to a limitation over on a condition which is not too remote. the direction is that it shall go to another beneficiary, on a contingency which must happen at the death of the first taker, the limitation is within the rules of the law and will be sustained." In the case of Vanderzee v. Slingerland, 103 N. Y. 47, 8 N. E. 247, 57 Am. Rep. 701, the testator, by the second clause of his will, gave to his son, Cornelius, all his real estate situate in the county of Albany. By the tenth clause of his will he provided: "In conclusion, my will is that if my son, Cornelius, dies without issue, that then the estate herein devised to him shall go over to my grandchildren: [specifically naming them], and in If case my son, Cornelius, should die before the provisions of this will become an act, the devisees last named shall perform and fulfill all the conditions required of my son, Cornelius, to the legatees named in this my will." Cornelius survived the testator, and subsequently died without issue. It was claimed that the death of Cornelius, referred to in the will was a death occurring during the lifetime of the testator, and that he, having survived the testator, took fee absolute in the estate devised to him. Andrews, J., in delivering the opinion of the court, conceded the rule to be that where a bequest is simply to one person and in case of his death to another, the primary devisee surviving the testator takes absolutely; that this rule applies both to real and personal estate. But it was a question of intention, and the rule thus referred to "applies only where the context of the will is silent, and affords no indication of intention other than that disclosed by words of absolute gift, followed by a gift over in case of death, or of death without issue or other specified event. Indeed, the tendency is to lay hold of slight circumstances in the will to vary construction and to give effect to the language according to its natural import." He concluded by holding that the words "die without issue" referred to a death at any time, whether before or after the death of the testator; that Cornelius took a conditional fee, and the grandchildren a contingent interest by way of executory devise, which, upon the happening of the contingency provided for, the death of Cornelius without issue, their contingent interest was converted into a fee. To the same effect is Nellis v. Nellis, 99 N. Y. 505, 3 N. E. 59; Buel v. Southwick, 70 N. Y. 581; Hennessy v. Patterson, 85 N. Y. 91; Matter of Cramer, 170 N. Y. 271, 63 N. E. 279. In Matter of Wiley, 111 App. Div. 590, 97 N. Y. Supp. 1017, the will devised the residuary estate to the testator's wife and to specifically named sisters, nephews and nieces, share and share alike, and then provided that, in case of the death of either before the whole estate shall be divided, it shall be distributed among the survivors only, share and share alike. One of the nephews was killed after the death of the testator and before any part of the residuary estate had been divided by the executors among the residuary legatees. It was held that, he having died before the period of distribution arrived, the limitation over took effect. The only other case to which I wish to specially refer is that of Finley v. Bent, 95 N. Y. 364, to which I have already alluded, stating the facts and the holding with reference thereto. This is the case to which the Chief Judge refers when he says that we are concluded by authority. The effect that is to be given to this case is, I apprehend, our chief point of difference. As we have seen, the share of the estate in controversy was payable to a daughter in one, two, and five years from the testator's death. At the expiration of five years her entire share became due and payable. The testator had given the executors what he deemed ample time in which to sell and dispose of his real estate, in order to meet and pay the legacies as they matured and became due. At the expiration of five years this daughter was alive. She had the right to have her share paid over to her and could have maintained an action therefor. It, therefore, became absolutely vested in her, and upon her subsequent death it passed to her legal representatives. This was in accord with In re Wilkins, L. R. 18 Ch. Div. 634, to which I have referred, in which the legatees were entitled to their legacies one year after the death of the testator, and, having survived that period, their shares became due and payable, and therefore did not go over on their sub sequent death. But that is not the question which we are called upon to determine. The question presented by this case is as to the effect of the death before the legacy becomes due and payable, before the time that the legatee has the right to demand its payment or maintain an action therefor. This question was considered by Earl, J., in the case of Finley v. Bent. He says: "It is conceded that the direction contained in the will to the executors, to sell the real estate, operated as a conversion thereof into personalty, and hence for the purposes of this will, and its construction, and the devolution of the estate, it must be treated as personalty from the time of the testator's death. It is clear, from the language used, that the shares given to the children vested at once upon the death of the testator. The remainder of the proceeds of the residue of the real and personal estate was without delay, after the death of the testator, to be divided into three shares, one for each of his children. ** * But each share was liable to be divested, as to so much of the share as within the meaning of the will remained unpaid, in case of death before full payment." He then refers to the claim of the appellant with reference to the words "die before full payment," meaning before actual full payment, and then he said with reference thereto : "If that be the meaning, then within the case of Johnson v. Crook, L. R. 12 Ch. Div. 639, the contention. of the appellant is sound, and the share upon the death of Abby passed under the will to her son." He then proceeds to show that the meaning of the words "die before full payment" mean "before the share becomes payable; and, therefore, inasmuch as the daughter died after the whole share was payable, the share was not divested, and passed as part of her estate." In other words, if the daughter had died before the five years had expired, at which time the share became due and payable, the share would have divested and passed under the will of her father to her son. It, therefore, appears to me that this case is an authority in support of the judgment we have under review. Hoadly v. Wood, 71 Conn. 452, 42 Atl. 263. Underhill, in his work on the Law of Wills (volume 1, § 343), has summed up the authorities upon the subject as follows: "Clauses by which property is given to A. absolutely, with a limitation over in case A. shall die before receiving his legacy, primarily refer to his death before it is actually received by him in cash, whether he die before or after the death of the testator. Though A. may survive the testator, the legacy to him is contingent upon his surviving to receive it. If the testator expressly directs that the legacy shall be paid at some particular point of future time, as five years from his death, or at the expiration of a life estate, with a gift over in case of the death of the legatee before receiving the legacy, it will vest at the estate in Virginia had not been sold or converted into money, for the reason that a purchaser could not be found. It is conceded that the sale was made at the earliest date in which it could properly be made. The proceeds could not be distributed until the sale was made and the money received. Had that event occurred during the lifetime of Frank, then it would have become due and payable, and he could have maintained an action therefor. But his death occurred before the happening of that event, and, therefore, the divesting clause of the will became operative, and the share coming to him under the provisions of his father's will passed to his daughter. It may be conceded that the English cases are not all in entire harmony. Their chief difference, however, arises out of a diversity in phraseology in the various wills which the courts have been called upon to construe. They all apparently concede that the intention of the testator must control, where the divesting clause is so clearly and specifically stated as to admit of no other construction. Even Lord Thurlow conceded this. But he claimed in the case before him that the testator had not conceived and expressed his intention with such definite certainty that he could act upon it. The great weight of authority, especially the recent cases, support and approve the rule laid down in Johnson v. Crook, and some of the cases criticise the conclusion reached by Lord Thurlow with reference to the provision being sufficiently definite and certain for him to act upon. It may further be conceded that, under the provisions of a will containing a gift over in case of the death of a legatee before payment, actual payment is not essential, in order for it to vest absolutely in a legatee; that under the authority of Sampson v. Sampson, supra, the divesting clause ought not to extend beyond the period in which the legacy is de jure receivable, or becomes due and payable, thus avoiding the power of an executor, through delay, caprice or accident, from preventing an absolute vesting of a legacy. With this limitation no reason is apparent, either in law, public policy, or morals, why the testator may not make his bequests subject to a provision, clearly and definitely stated, that, in case his legatee should die before his legacy become due and payable under the administration of his estate, it shall go over to the child or children of such deceased legatee, and thus prevent its going to the creditors of the legatee or to strangers to the testator or to his blood. date when it ought to be received, though its his lifetime received his share. The real actual payment shall be delayed by the caprice or the willfulness of the executor. The difficulty in construing these limitations over is most striking when they depend upon death simpliciter, without having received the legacy, the testator having omitted all words which would indicate that he meant an actual receipt. In a recent case, where the testator provided that in the event of the death of a remainderman 'leaving issue before receiving his share, the issue should take,' it was held that a remainderman who survived the testator took a vested estate at the death of the testator. Receiving here meant possession. The same rule is applied where the will is silent as to the time of payment and the legacy is immediate. Thus, where a legacy is not expressly payable in the future, and the will provides a gift in case of the legatee's death before receiving his share of a residue, or before the 'division' of the estate, and the legatee survives for one year after the testator, which period is allowed by law for the settlement of the estate, the legacy is indefeasibly vested, though, if he die during the year, the gift over takes effect. The fact that the executor may, if he choose, pay the legacy before the year expires, does not accelerate the vesting, for the executor cannot favor one legatee as against another. Until the year has elapsed the legacy is undoubtedly contingent. And it has been held that equity will not direct that inquiry shall be made into the circumstances of the estate in order to ascertain whether the payment could have been made without inconvenience before the death of the legatee, or within one year from the death of the testator, even if the legatee has survived that period for several years. Cases which provide for a gift over in the event of the death of the legatee before he has actually received a legacy differ radically from those in which an actual receipt is not required. Where it is clearly apparent that the testator intended. that the legatee should be at the risk of losing what he gave him, through the delay or the caprice of the executor, or through accident, as in case it is expressly provided that if the legatee should die before he shall have 'actually received his legacy' the part 'he has not actually received, whether payable or not,' is to go to another, the intention must be respected. The gift over is not invalid for its uncertainty, merely because it is within the power of the executor to defeat the intention of the testator respecting it by a prompt payment of the legacy, if it is clear that the testator intended he should possess that power. Whether the executor shall possess this power depends upon the language of each will. Its existence must clearly appear, as nothing will be taken by implication in this respect." The testator's personal estate, as we have seen, had been distributed, and Frank in I consequently conclude that Frank took a contingent estate, which would become vested absolutely in case he lived until he was entitled to it in possession, or until it became due and payable to him, subject to be divested in case of his death before that time, and, he having so died, his share passed over to his daughter under the will of his father. The judgment should be affirmed, with costs. CULLEN, C. J. (dissenting). This action was brought for the construction of the will of Peter S. March, who died in the city of New York on February 11, 1899. The questions litigated arise under the fifth clause of the will, by which the testator devised the residue of his estate, real and personal, to his executors and trustees in trust: "First. That my Executors and Trustees sell, convey and dispose of the same at public or private sale at such times and on such terms as they may think proper. "Second. That my Executors and Trustees invest and keep invested during the life of my wife one-third part of such residue of my estate, or the proceeds thereof, and pay or apply the rents, interest and income thereof to the use of my wife so long as she shall live. "Third. That my Executors and Trustees divide the remainder of such residue (and on the death of my wife the one-third part held for her benefit) into six equal parts or shares, and convey, pay and assign one of such shares to my son Edwin P. March, first deducting the said sum of fifteen thousand dollars as herein directed; that they convey, pay and assign one other of such shares to each of my sons, Frank P. March and Egbert G. March, absolutely; that my Executors and Trustees set aside and designate one of the remaining three shares for each of my daughters, Virginia A. March and Laura J. Adams, and son, Seth S. March, and hold, invest and keep invested the share of each child last named during his or her life, and collect and receive and pay or apply the rents, interest and income of the share of each child to the use of such child during his or her life, and upon the further trust, "Fourth. That in the event of the death of any of my children before the conveyance and payment to him of the share of my estate herein given to him, or of either of my children whose share of my estate is held in trust, that my executors convey, pay and assign the share of the one so dying to his or her issue absolutely, and if he or she shall leave no issue, then that they convey, pay, assign and divide such share or the proceeds thereof to and among my surviving children and to the issue of any deceased child, such issue to take by representation the part or share his, her or their parents would have been entitled to, if living." The testator's wife predeceased him. The testator's son Frank P. March died testate on May 10, 1900, leaving a widow and daughter, Mary M. Kennedy, his only heir at law and next of kin. Peter March, at the time of his decease, was the owner of real property in the state of Virginia which was not sold by the executors and trustees until after the death of Frank March, but the latter received during his lifetime his share of the other parts of his father's residuary estate. The present contest is between the personal representatives of Frank March and his daughter, Mary Kennedy, and the most important question is as to their respective rights in Frank's share, or what would have been his share had he lived, in the proceeds of the sale of the Virginia property, the personal representatives of Frank claiming it under the third subdivision of the fifth clause of Peter March's will, the daughter claiming under the gift over or substitutional gift contained in the fourth subdivision. As to two propositions there is no dispute: First, that the power of sale was mandatory, and hence there was an equitable conversion of the lands in Virginia into personalty; second, that under the fourth subdivision, standing alone, Frank would have acquired on the testator's death an indefeasible title to his share of the estate. The respondent, however, contends that the proceeds of the Virginia property not having been paid to Frank, she is entitled under the fifth clause, which directs that in case of the death of any of the testator's children "before the conveyance and payment to him of the share of my estate herein given to him," the executors shall convey, pay and assign such share to his or her issue. This branch of the controversy turns wholly on the interpretation to be given to the words "conveyance and payment." If those words mean the actual payment in hand to the son in money, then the respondent, the daughter, is entitled to the fund, and so the courts below have held. On the other hand, if, as the appellants contend, the words are to be construed as meaning before the son is entitled to the fund or the same is payable to him, then the fund should be paid to the personal representatives of the son. While, literally construed, the words would signify actual payment, the results of such a construction have seemed to the courts so unreasonable that they have refused to accord to them that interpretation unless when the intent of the testator has been expressed in language so clear and positive as to leave no room for possible doubt. The objections to a literal interpretation are that it would not only leave the objects of the testator's bounty subject to accident, which he could in no manner foresee, but also empower those intrusted with the execution of his will to vary or change those objects, at least to some considerable degree, at their own pleasure. If actual physical transier of the fund into the hands of the legatee is necessary to constitute payment, in default of which the gift over or substitutional gift takes effect, then any delay in carrying the provisions of the will into execution, any litigation over the probate of the will or as to its assets after probate would divert the testator's property from one channel into another. These considerations led Lord Thurlow, over a century ago, to reject the literal interpretation, |