Willets v. Titus

Richard Kirk, by the first clause of his will, gave the free use of all his property to his wife and his daughter Anna, until the latter attained the age of twenty-one years, and then the wife was to have one-half and the daughter the other. If the daughter died before arriving at the age of twenty-one years, then all the property was given to the wife; and if the wife did not live until *556Anna reached the age of twenty-one years, then all was given to the daughter, to be received in possession and enjoyment by her upon her reaching twenty-one years of age, until which time the executors were to hand out the property to her in their discretion. In case of the death of both wife and daughter before the latter became twenty-óne years of age, then, unless she had lawfid issue, all the property was to be divided equally between certain persons named or indicated.

The wife died intestate in 1861, and the daughter, who survived her, died childless and intestate under the age of twenty-one years in 1872. Between the time of the death of the wife and daughter there were certain accumulations of the estate which came to the hand of the executors, and the controversy has respect thereto. There is no positive direction or provision in the will for accumulation. The power to the executors to hold some of the estate, is implied from the direction to hand out to the daughter in their discretion after the death of her mother- Assuming, however, that a direction for accumulating is thus to be implied, it is a perfectly valid one within our statute. (1 R. S., 773, § 3.)

Under the second clause of the will, the daughter took a vested estate. Her reaching the age of twenty-one years was a condition precedent to the possession and enjoyment of the estate, and not to its vesting. (Manice v. Manice, 43 N. Y., 380.)

If the daughter had reached the age of twenty-one years, then all would have come to her in possession; but as she did not, the whole body of the estate, which included all that had not been handed out to the daughter, passed under the third clause of the will.

This seems very plain; after the death of the wife, the executors were to hand out to the daughter, in their discretion, as she required, and hold the balance to be handed over to her on her reaching twenty-one years of ago ; if she did not reach that age, then all went to the persons indicated in the third clause in the will.

Judgment should be affirmed, with costs.

Judgnient affirmed, with costs.