pellants take as her next of kin, subject to the interest of their father; but, if it did not vest in the mother, the appellants take directly under the will, and the husband and father has no interest. The practical question for decision is, therefore, whether the appellants take as next of kin of their mother or under the will of their grandfather. In this view, if the appellants take under the will, it is immaterial whether the undivided half of the separate trust fund in question vested in the trustees until the time fixed for distribution, or whether it vested in the mother of the appellants, subject to be divested upon her death before the distribution period. This depends upon the intent of the testator. We must ascertain his intent by considering all of the provisions of his will. On a casual reading, the punctuation would seem to indicate that the disposition of the trust fund, in case of the death of a beneficiary, relates to the trust fund remaining in the hands of the trustee after the beneficiary has attained the age of 30 years, which would be one-half the principal of the share originally. On a closer examination, however, it will be discovered that the will has not been punctuated with any degree of accuracy, or even systematically, and therefore the punctuation is of little value as an aid to the true construction. Moreover, it is to be borne in mind that punctuation must be disregarded if it is in conflict with the testamentary scheme of the testator as gleaned from the provisions of the will, or prevents ascribing to the words employed their ordinary meaning. Roe et al. v. Vingut, 117 N. Y. 204, 22 N. E. 933; Kinkele v. Wilson, 151 N. Y. 269, 45 N. E. 869. There is no express devise or bequest of any of the separate trust funds to any of the surviving children. On the contrary, on the division of the remainder into these separate shares, each separate share set apart for the benefit of a surviving child is expressly given, devised, and bequeathed to the executors as trustees in trust to collect and receive the rents, issues, income, and profits of the real estate, and to invest and keep invested the personal property, with power to call in and change the investments from time to time, and apply the net income to the use of the child for whose benefit the separate trust is created during life, with a provision that upon the beneficiary arriving at the age of 25 years the trustees shall "convey, transfer, deliver and pay over one equal fourth part of the capital of such trust estate with all gains and increase of capital," and, upon the beneficiary attaining the age of 30 years, to pay over in like manner one-third of the remainder. The testator, by repeatedly providing that the income paid to any of his daughters should be free from the debts, control, or interference of her husband, and by providing that, in the event of the death of any of his children without exercising the power of appointment, the share held in trust for such child should go to his or her issue, if any survived him, and making no provision for a surviving husband or wife, shows quite clearly that he did not intend that the trust fund should vest absolutely in his children until the arrival period fixed for distribution, and then only as to the part to be distributed. Until the period for distribution his children were only entitled to the net income, and therefore it could be of no personal advantage or benefit to them to have the estate vested in them in the meantime. If any beneficiary having issue de and 121 New York State Reporter sired that any part of the trust fund should go to another or others than his or her issue, the power of appointment was given to otherwise dispose of all or any part of it. Moreover, it was essential for the due performance of the trust that the trustees should be vested with the complete title to the property. We are therefore of opinion that the appellants took under the will, and not as next of kin of their mother. It follows that the judgment should be modified in accordance with these views, with costs to the guardian ad litem payable out of the fund. VAN BRUNT, P. J., and PATTERSON and HATCH, JJ., con cur. INGRAHAM, J. I concur with Mr. Justice LAUGHLIN in the construction given to the seventh clause of the will in question, as it seems to me that the intention of the testator is clearly expressed. The property devised and bequeathed to the executors in trust is to be divided "into such number of equal shares as shall be equal to the number of children who shall survive me, and of my children, who shall have died before me leaving issue who shall survive me, and set apart one of such equal shares for each of my children who shall survive me, and one of such equal shares for the issue of each child of mine who shall have died before me, leaving issue me surviving." The trustees were then directed to hold one share for each of his surviving children, to collect and receive the rents, issues, income, and profits from such share, and to apply the net income to the use of the person for whom such share shall be held during the life of such person, or until such person arrives at the age of 25 years, and upon the arrival of such person at the age of 25 years to convey or pay over one equal fourth part of the capital of such trust estate; to receive the income upon the remaining three-fourths, and to pay it to the person for whom the trust was held until such person arrived at the age of 30 years, when there was to be conveyed and paid to such person one-third of the capital of the trust estate then remaining; and to hold the balance of the trust during the lifetime of the person for whom the trust was held, and to pay the income and profits to such person during his life. It is then provided that "upon the death of such person in trust for whom such trust estate shall be held, to convey, transfer, deliver and pay over the capital of such trust estate as it shall then exist with all gains and increase of capital thereof, if any, in fee simple absolute to the issue then surviving of such person in trust for whom such trust estate shall have been held in equal shares." Thus, upon the death of the person in trust for whom the share is held, the capital of such trust estate, "as it shall then exist"—that is, at the time of distribution-shall be paid over to the issue. If the testator's child survived him and died under 25 years of age, the direction to pay to that child a quarter of the estate upon its arriving at that age manifestly could not be complied with. At that time the capital of such trust estate, as it would then exist, would be all of the share of the testator's residuary estate which was held * * * in trust for that child. It had not then been depleted by the payment which was to be made when the child arrived at the age of 25 years. There is no direct devise or bequest of any part of the testator's property to any of his surviving children. The sole right of a child to any part of the capital of the estate is contained in the direction to the executors to pay to a surviving child one undivided quarter of the share held in trust for that child upon his arriving at the age of 25 years and 30 years, respectively; and it seems to have been clearly the intention of the testator that upon the death of either of his surviving children the capital of the share held in trust for him was to vest absolutely, in the absence of the exercise of a power of appointment, in the issue of the child so dying. The terms of the will negative the idea that the testator intended to vest absolutely in either of his surviving children any portion of the estate held in trust for them until they arrived at the age of 25 years. The devise or bequest over took effect upon the death of a surviving child, and the property thus devised or bequeathed was the capital of the share held in trust for that child at the time of his death, and to carry this intention into effect the judgment should be modified accordingly. PATTERSON, J., concurs. WANAMAKER et al. v. MEGRAW. (Supreme Court, Appellate Division, First Department. March 25, 1904.) 1. PRINCIPAL AND AGENT-AGENT'S AUTHORITY-DATE OF COMMENCEMENT. Where one was employed in May to take charge of a department of plaintiffs' business, as buyer and seller, and employer of help, on July 1st, he had authority, nothing appearing to indicate the contrary, to bind plaintiffs by the employment of help prior to July 1st, so as to have his department organized to begin business on that date. Appeal from Trial Term. Action by John Wanamaker and others against Robert H. Megraw. From a judgment for plaintiffs and from an order denying a new trial, defendant appeals. Reversed. See 62 N. Y. Supp. 692. Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O'BRIEN, and INGRAHAM, JJ. Jacob F. Miller, for appellant. PATTERSON, J. This action was brought to recover a sum of money which the plaintiffs claim they paid to or for the use of the defendant. There is no dispute as to the validity of that claim, but the defendant set up in his answer a counterclaim arising upon a contract alleged to have been made with one Sidney W. Rice, an agent or representative of the plaintiffs. It was a contract of employment for one year, and the defendant alleges that by its terms he was to be paid a salary of $5,000; "$4,000 to be drawn during said and 121 New York State Reporter year, and $1,000 at the end of said year, provided that the defendant remain with the plaintiffs during the whole of said term and faithfully perform his duties." This alleged contract was made in June, 1889. Rice was an employé of the plaintiffs, and had, or was to have, charge as manager of the dress-goods department of a store in the city of Philadelphia, of which they were the proprietors. It appears in evidence that in May, 1889, one of the plaintiffs engaged Rice to be a buyer and seller of merchandise, to employ help, and look after the general conduct of the business of his department. According to Rice's testimony, which seems to be confirmed, "the arrangement was made to come on July 1st following." On the 14th of June, 1889, Rice had a conversation with the defendant in Chicago, and told him of the arrangement which he (Rice) had made to take up the department as manager, and that he would like to employ the defendant as an assistant; and he (Rice) agreed to get for the defendant a drawing account of $4,000, and, if he stayed with and did his business as he should do it, and did it well, he (Rice) would see to it that the defendant got another $1,000 at the end of the year. It is shown that between May and the 1st of July, 1889, Rice had no communication with either of the plaintiffs, and that he did not see the defendant again until they met in Philadelphia about July 1st. Rice did not then inform either of the plaintiffs that any other contract had been made with Megraw than to pay $4,000 a year. Nothing was said about the additional $1,000 to be paid at the end of the year; but Megraw entered upon the employment, remained for a year, and drew from the plaintiffs a salary of $4,000. It is not disputed that he remained all the year, and faithfully performed all his duties. No other contract of employment of the defendant was ever made than the one made with Rice. The defendant entered upon his service to the plaintiffs under that agreement, and there is no doubt that his services were satisfactory. At the conclusion of the trial the court dismissed the counterclaim, and directed a verdict for the amount claimed by the plaintiffs. In dismissing the counterclaim the court held that the arrangement between Rice and the defendant was made before the agency of Rice became effective, and that it further appeared from the evidence that the arrangement referred to was merely a tentative one; and for these reasons, among others not stated, the motion to dismiss the counterclaim was granted. The arrangement was an absolute one. It was to pay $4,000 absolutely for the year's service, and, if the defendant remained during the year, and performed his service faithfully, he was to receive. an additional $1,000. The only question in the case is as to the authority of Rice in June, 1889, to make the contract for this additional $1,000. The defendant entered into the employment and service of the plaintiffs on the 1st of July, and satisfactorily performed the duties required of him during the year; and that was done under no other arrangement than that entered into between Rice and the defendant in June. The court evidently held upon the evidence presented that, although Rice made the contract for $5,000 with the defendant, he had no authority to do so in June, 1889, because Rice's own employment did not begin until July 1st, and that, if there were a ratification of a contract by the subsequent acceptance of the de fendant's services by the plaintiffs, it would only extend to so much of the contract as was disclosed to the plaintiffs, namely, an agreement to pay the defendant the sum of $4,000 a year, without reference to the additional $1,000. It seems to us from the evidence that, although Rice's actual service to the plaintiffs was not to begin until July 1, 1889, yet he had authority to arrange for the conduct of the business of the department of which he was to take charge; and that authority was recognized by the acceptance of Megraw as one of the employés in that department. But the case does not depend upon ratification. Rice was employed as a manager of a department, and his duties in connection therewith were to begin on the Ist of July. He had the ostensible authority to arrange for that department so that it would become effective and business could be done in it on the 1st of July, nothing appearing in the evidence to the contrary. Rice testifies that he was authorized to hire help. He says that in a conversation with Mr. Thomas Wanamaker in the month of May, 1889, with respect to his taking charge of the department: "I told him that I would come there and do it under certain conditions. The conditions were that I should be buyer of merchandise and the seller of merchandise in those departments, have the employment of their help, and look after the general conduct of the business. I mentioned all these things at that time." In dismissing the counterclaim the learned court below apparently relied upon the case of Rathbun v. Snow, 123 N. Y. 343, 25 N. E. 379, 10 L. R. A. 355, in which it was held that the mere appointment of an agent by words in præsenti, but having reference to a business to be entered upon at some future day, does not confer upon such agent authority in the interim to bind the principal. That was a case in which the agency was not absolute, but, according to the intention of both of the parties to the contract, was provisional in the sense that it was not to commence until a certain time, and after certain things had been done. But here, according to the testimony of Rice, if it is to be believed, power to employ assistants was given him, and there is nothing shown, or from which it could be inferred, that that power was not to be exercised until after the 1st of July. It seems to us that in this case the authority given to Rice, according to his testimony, was to have the department organized so that the business could be carried on from the 1st of July, which was the very day upon which the defendant entered into the employment of the plaintiffs and was recognized as their employé under a contract which had been made with Rice, and under no other arrangement. The judgment and order should be reversed, and a new trial ordered, with costs to appellant to abide the event. O'BRIEN and MCLAUGHLIN, JJ., concur. VAN BRUNT, P. J., and INGRAHAM, J., concur in result. VAN BRUNT, P. J. I concur in the result of Mr. Justice PATTERSON'S opinion. I do not think that Rice had any power to make any contract with Megraw prior to the 1st of July; but, he |