In re the Final Judicial Settlement of the Account of Proceedings of Douglass

The court in admitting the will of the above-named decedent to probate held to be void paragraphs “ second,” “ third,” “ fourth ” and the appointment of Lizzie C. Douglass as executrix in paragraph “ seventh.” The court is now asked to construe said will as to the distribution of the estate.

Elizabeth C. Douglass, the mother, predeceased the testatrix *289and Mary C. Odell survived the testatrix about four months with the result • that the brother, Forster W. Douglass, and the sister, Lizzie C. Douglass, each became entitled to one-third of the estate, with the other one-third being given to the executors and trustees “ to invest and keep invested for the use and benefit of the sister Mary C. Odell.” The question arises as to whether this trust estate is ultimately disposed of by paragraph “ eighth ” which reads as follows: “ In the event of the death of my sister Mary C. Odell, before the termination of the trust created in Paragraph Fifth herein, the one-fourth part of my estate therein described, with any increase as provided in Paragraph Seventh, shall be divided equally in fee between my brother, mother and sister her surviving.”

The words “ before the termination of the trust created in Paragraph Fifth herein ” are meaningless and must be rejected as they are not consistent with the context of the will. Matter of Hunt, 116 Misc. Rep. 23; Matter of Buechner, 226 N. Y. 440. In legal contemplation, a gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or in some definite proportions, the share of each being dependent for its amount upon the ultimate number. 1 Jarman Wills (Big. 6th Am. ed.), 269; Matter of Kimberly, 150 N. Y. 90.

Here the general scheme of the will supports the interpretation that the number of persons to partake of the gift was to be determined at the death of the sister Mary C. Odell. The brother, mother and sister were vested with the corpus of the trust for the sister Mary C. Odell, subject to be divested thereof if they failed to survive her. The share of each could only be determined when it became known who of said three persons were to survive Mary C. Odell. The brother and sister were the only ones of the three persons named to survive Mary C. Odell; thus they received her trust estate and each thereby became entitled to one-half of the whole estate.

Mary O. Schuyler, the daughter of Mary C. Odell, is entitled to any unpaid income due at the time of the death of Mary C. Odell.

Decreed accordingly.