FIRST DEPARTMENT, FEBRUARY TERM, 1897. [Vol. 14. between those two sets of claimants was whether the legacy should be regarded as having lapsed at the death of the testator or at the death of Mrs. Gillespie in 1894. If it lapsed as of the death of the testator, it went, of course, to all those who at that time were entitled to his personal estate under the Statute of Distributions. If, on the contrary, it was to be regarded as having lapsed at the time of the death of Mrs. Gillespie in 1894, then it was claimed that the fund went only to that person who at that time answered the description of the next of kin of the testator. Between these four classes of claims the referee decided that the gift to the children did not vest, but was contingent upon their surviving their mother; that, as at the death of Mrs. Gillespie there were neither children nor issue of children, the gift failed, and that, being a lapsed legacy, it was property undisposed of by the will, and went to those who were the next of kin of the testator at the time of his death. Whether that conclusion of the referee was correct is the question presented by this appeal. This question is to be decided solely upon consideration of that portion of the will of Thomas L. Clark quoted above. An examination of it shows that the trustees held all the property as one fund for the benefit of the wife of Mr. Clark during her life, and the fund of $10,000 for the benefit of Mrs. Gillespie only came into existence after the death of Mrs. Clark, the wife of the testator, and its existence was dependent upon the survival of Mrs. Clark by Mrs. Gillespie. When, however, it appeared that Mrs. Gillespie had survived her mother, this fund of $10,000 was set apart for her benefit. During her life the trustees were required to pay the income of it to her. The will did not give the fund, after her death, directly to anybody. The provision of the will was that it was to be paid over to and divided among all her children, and that the issue of any child who was dead was to take his or her deceased parent's share. That necessarily implies that the children or the descendants of the children of Mrs. Gillespie were to be the objects of the testator's bounty. This bounty they were to receive, not by virtue of a direct gift from the testator, but through the medium of a power in trust vested in a trustee, to be executed after the death of their mother, so that the executors and trustees might devote the income of the estate until the death of Mrs. Gillespie, to such pur App. Div.] FIRST DEPARTMENT, FEBRUARY TERM, 1897. poses as the direction of the testator had required. The distribution, therefore, was postponed as a necessary part of the scheme of the will, and, as has been said, "futurity is annexed to the substance of the gift." The case is, therefore, within that class of cases which establish the principle that where final division and distribution is to be made among a class, the benefits of the will must be confined to those persons who are included within the class at the date when the distribution or division is directed to be made. In such cases the gift is contingent upon the survivorship, and that survivorship at the time of the distribution is an essential condition to the vesting of an interest in the subject of the gift. (Delafield v. Shipman, 103 N. Y. 463; In the Matter of Baer, 147 id. 348; Matter of Allen, 151 id. 243.) This conclusion disposes of the claims of these defendants who insist that they are entitled to take this fund, because it vested in the children of Mrs. Gillespie under the will. But another class of claimants insist that they are entitled to this fund because the testator directed that it should be paid "to all her children, share and share alike, and to their lawful representatives forever." These claimants contend that the words "lawful representatives" should be construed to mean next of kin, and that the direction to pay to the lawful representatives of the children should be held to be a substituted gift to the next of kin in case there were no children living at the time when distribution was to be made. An examination of the will shows that the testator provided for the contingency which might take place if Mrs. Gillespie's children should die before her, because he directed that the fund should be distributed among the children and the issue of such children as should be dead, the words of the will being that "the issue of any such child who may be then dead to take his or her deceased parent's share." The testator thus provided for the death of either of Mrs. Gillespie's children, leaving issue. If he had intended to provide for any other contingency it is fair to suppose that he would have done it by words apt for the purpose and not by indirection, and it is not at all likely that he intended to use the words "lawful representatives" for the purpose of providing for another contingency which was of no particular interest to him and probably never occurred to him. The reading of the clause shows quite clearly, we think, that the words "lawful representatives" were FIRST DEPARTMENT, FEBRUARY TERM, 1897. [Vol. 14. not used to signify the persons who are substituted as takers of the gift. The direction to pay is not to the children, or, in the alternative, to their lawful representatives, as would have been the case had those representatives been intended to take in the place of the children, but to pay to the children and their lawful representatives. These words cannot be construed to mean the next of kin in their ordinary and usual significance, because they are usually construed to mean executors or administrators. (Geoffroy v. Gilbert, 5 App. Div. 98, and cases cited.) Unless their meaning is explained and altered by the context, that signification must be given to them. There is nothing in the context here which would wrest the words from their true meaning, and, therefore, we conclude that they are used here to signify the nature of the estate which the children would take in this fund after it had been paid over to them, and not to specify any individuals who would receive it in case there were no children living. The same construction was given to substantially the same words by the learned surrogate of this county in Phyfe v. Phyfe (3 Bradf. 45) where they seem to have been used in the same sense and in almost the same connection. (See, also, Matter of Allen, 151 N. Y. 243.) We conclude, therefore, that this was a lapsed legacy. Ordinarily, a legacy is said to lapse when the legatee has died before the testator, but the same expression may properly be used to describe a legacy which has failed, either because of its invalidity, or because the contingency upon which alone it was to vest has not taken place. (Van Wyck v. Bloodgood, 1 Bradf. 154.) All concede that this legacy having lapsed, it went to the next of kin of the testator, and the only dispute left to be settled is whether it should go to those persons who answered that description at the time of the death of the testator, or only to such persons as answered that description at the time when the life estate of Mrs. Gillespie came to an end. Mrs. Avery who was the sole next of kin of the testator at the time of the death of Mrs. Gillespie, claims that the gift lapsed at the death of Mrs. Gillespie, and not at the death of the testator, and that the fund should be given to her, and not to those who, at the time of the death of the testator, would be entitled under the Statute of Distributions. As we have seen, the interest of the children of Mrs. Gillespie App. Div.] FIRST DEPARTMENT, FEBRUARY TERM, 1897. was contingent upon their surviving their mother. Even then there was no direct gift to them, but a right to receive a portion of the $10,000 contingent on their living at the time when the life estate of their mother came to an end. The only thing which the testator disposed of by his will was this contingent right. He gave to his executors and trustees the title to this property for the purpose of executing the trusts created by the will. They took by that devise, just so great an estate as was necessary to enable them to execute these trusts. That estate was for the life of Mrs. Clark and Mrs. Gillespie. How far it extended after the falling in of those two lives, depended upon the existence of the contingency upon which alone the money was payable to the children. If, for any reason, that contingency should fail, the estate of the trustees failed with it. There was left, therefore, at the time of the death of the testator, a residue of the estate which would commence in possession on the termination of the life estates, in case the contingencies did not take effect. This was a reversionary interest in personal property which is recognized by the statutes of the State in regard to personal property as well as real property. (1 R. S. 773, § 2; Id. 723, § 12.) That reversionary interest came into existence when the will took effect, just as much as did the contingent interest of these children, or the estate of the trustees. When it took effect it vested in those persons who were then entitled to share in the testator's estate under the Statute of Distributions, and while it could not vest in them in possession until the contingent interest of the children had failed, they did not lose it by reason of the delay, but it ran along, side by side, with the possible estate to the children, to take effect or to be destroyed, as the contingent estate of the children failed or became vested. This interest, therefore, was an estate of the testator, not disposed of by the will, and it follows the usual rule that the personal property of the testator, not disposed of by will, goes to those who are entitled under the Statute of Distributions at the time of his death. The rule in that regard is laid down by the chancellor in the case of Hoes v. Van Hoesen (1 Barb. Ch. 379). He says: "Where a reversionary interest in personal property is not disposed of by the will of a testator, it does not necessarily belong to those who may happen to be his next of kin at the termination of the particular estate, or FIRST DEPARTMENT, FEBRUARY TERM, 1897. [Vol. 14. interest in such property which is bequeathed by him, but as an interest in property undisposed of by the will, it belongs to the widow and next of kin of the decedent who were entitled to the distributive shares in such unbequeathed interest at the death of the testator, and if any of them have died without having disposed of their interests therein, their shares go to their personal representatives as a part of the personal estate of such decedents." (Greenland v. Waddell, 116 N. Y. 233, 245.) This rule of the chancellor is well established by authority, both in this country and England, as has been shown by the opinion in the case of Simonson v. Waller (9 App. Div. 503), where the question was thoroughly examined. Some doubt has been thrown upon it by a dictum of Judge COMSTOCK contained in his opinion in the case of Savage v. Burnham (17 N. Y. 561, 573). The circumstances under which Judge COMSTOCK reached his conclusion upon that point are well stated in the case of Simonson v. Waller (supra). While Savage v. Burnham has been cited often, and followed upon other points, it does not appear that upon the particular point involved here it has ever been cited or approved. It is noticeable that the conclusion reached by Judge COMSTOCK in that case might equally well have been reached upon the principle that the legacy of Thomas was undisposed of by the will, and went to those who were the next of kin of the testator at the time of his death, because it so happened that the next of kin of the testator at the time of his death who would have taken this legacy, had it been regarded as undisposed of then, were the same persons who did take it under the decision of Judge COMSTOCK, So that while the reason given by Judge COMSTOCK was perhaps in conflict with the principle laid down by the chancellor in Hoes v. Van Hoesen, and which we have reached here, he arrived at precisely the same result. While we have great respect for the learned judge who wrote the opinion in Savage v. Burnham, yet his dictum on this subject is so greatly adverse to the great body of authorities both in this country and in England that we cannot yield to it here, unsupported as it is by any adjudged case. There was no general residuary bequest in this will. The only residuum spoken of was the rest and residue of the principal moneys, excluding the $10,000 fund which is the subject of this action. That fund, therefore, went to those who were entitled under the |