Bella Geisse and Others, Respondents, v. George W. Bunce, Individually and as Executor, etc., of Elizabeth M. Bunce, Deceased, and Emily E. Bunce, his Wife, Appellants, Impleaded with Wilhelmina Bunce and Others, Respondents

Bella Geisse and Others, Respondents, v. George W. Bunce, Individually and as Executor, etc., of Elizabeth M. Bunce, Deceased, and Emily E. Bunce, his Wife, Appellants, Impleaded with Wilhelmina Bunce and Others, Respondents. Contingent remainders — trust deeds directing a sale and division of the proceeds after the death of the survivor of two life beneficiaries — no present interest is vested in the remaindermen. By deeds of trust, lands were conveyed to a trustee, with directions to him to apply the rents and profits to the use of two daughters of the grantor during their joint lives and during the life of the survivor of them, and, after the death of the survivor, to sell the land and divide the proceeds equally between the then living children of the life beneficiaries, and the issue of such as should have died before the death of the survivor leaving issue, and in case of there being no issue of the life beneficiaries (which proved to be the fact), to divide the proceeds equally between three designated persons and the children of a fourth. Held, that no interest in the proceeds derivable from the sale of the trust property vested until the destth of the survivor of the life beneficiaries; That the shares of two of the contingent remaindermen, who died before the surviving life beneficiary, lapsed and passed into the residuary estate of the creator of the trust, while the share given to the children of the fourth person designated passed to such of those children as were in being at the death of the surviving life beneficiary. . Where the only gift is contained in the implication resulting from a direction to pay or divide at a future time, futurity is attached to the gift. Where the direction is to pay and divide among a class, only those persons who are members of the class, at the date fixed for the distribution, take, and their interests do not vest until that time. Appeal by the defendants, George W. Bunce, individually and as executor, etc., of Elizabeth 1VI. Bunce, deceased, and another, from portions of a judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants,, entered in the office of the ‘ clerk of the county of New York as of the 17th day of April, 1897, upon the decision of the court rendered after a trial at the1. New York Special Term. The action was brought for the construction of two certain trusts, for instructions in executing the same, and for the settlement of the trustee’s accounts. By deed executed in 1855, Cynthia A. Bunce conveyed to Nathaniel B. Bunce the premises No. 44 Orchard street in the city of New York, in trust, to receive the rents and profits and apply the same, after payment of necessary expenses, to the use» of her .daughters, Elizabeth 3VI. Bunce and Sara F. Bunce, during their joint lives and the life of the survivor. After the death of the survivor, the trustee was directed to sell the property, and in case neither beneficiary left any issue surviving her,, to “ pay and divide the said proceeds of the above-granted premises as follows, that is to say: one equal fourth part to the said Nathaniel B. Bunce, one equal fourth part thereof to Augusta L. Bomer, one equal fourth part thereof to William F. Geisse, and the remaining one equal fourth part thereof to the children of Chauncey D. Bunce.” In 1862 said Cynthia A. Bunce conveyed to the same trustee the premises on the northwesterly corner of Forty-fifth street and Sixth . avenue in the city of New York. This deed was made upon the same trusts as the previous one, and, so far as concerns the questions to be considered, was identical in all respects. Sara F. Bunce, the last surviving life beneficiary, died in 1896. Augusta L. Bonier and William F. Geisse both died prior thereto'; but Nathaniel B. Bunce survived her, dying after the commencement of this action. Chauncey D. Bunce had three children living at the date of the execution of the trust deeds, two of whom died jnior to Sara F. Bunce, the only one surviving her being the appellant George W. Bunce. The plaintiff Francis C. Beed is substituted trustee of the trusts. The other plaintiffs are the residuary legatees of Sara F. Bunce. The court below held that, upon the execution of the trust deeds, Nathaniel B. Bunce, Augusta L. Bomer, William F. Geisse and the then living children of Chauncey D. Bunce took vested interests in the proceeds of the real estate, which were devisable and descendible, and gave judgment accordingly. W. R. Spooner for the appellants. William H. Reed, for the plaintiffs, respondents. Benjamin N. Cardozo, for the respondent Wilhelmina Bunce and the guardian ad litem of Beulah Bunce. James T. McMahon, for the executors of Nathaniel R. Bunce, deceased, respondents. [MAJORITY — Barrett, J.:] Barrett, J.: We think the learned judge at Special Term erred in treating this case as though a legal life estate had been created in the two daughters of Cynthia A. Bunee, with a vested remainder to their children, and with a contingent remainder to the other individuals specified. Instead of this, the whole title was vested in the trustee during the joint lives of Elizabeth M. Bunee and Sara F. Bunee, and the life of the survivor. After the death of .the survivor he is directed to sell the land and divide the proceeds equally between the then living children of these life beneficiaries and the issue of such of s'aid children as may have died before the death of the survivor leaving issue. In case of the decease of both of the life beneficiaries, without leaving issue surviving the- survivor of them, which proved to be the fact, then the trustee was directed' to pay and divide the proceeds equally between Nathaniel B. Bunee, Augusta L. Bomer, William F. Geisse and the children of Chauncey D. Bunee. • There is no direct gift to these latter individuals, and it is well settled that, where the only gift or devise of property is contained in the implication resulting from a direction to pay or divide at a future time, futurity is annexed to the substance of the gift, and no title or interest vests until the arrival of the specified period. This doctrine plainly applies here to each of the three individuals named in the direction to pay and divide. It applies with additional force to the one-quarter payable to the children of Oliauncey D. Bunee, for there another rule reinforces the ■first, namely, that where the direction is to pay to and divide among a class, only those persons who are members'of the class at the date, fixed for distribution take, and their interests do not vest until that period. Ample authority for both rules will be found in the following cases: Delaney v. McCormack (88 N. Y. 174); Delafield v. Shipman (103 id. 463); Matter of Baer (147 id. 348). In order that the interest of the beneficiary may vest at once there must he, in addition to the direction to the trustee, either express words of gift, or circumstances from which may fairly be inferred an intention to appropriate at once the subject of the gift to the use of the beneficiary, although the full enjoyment thereof is postponed to a later date. (Warner v. Durant, 76 N. Y. 133; Goebel v. Wolf, 113 id. 405; Matter of Tienken, 131 id. 391.) There are absolutely no circumstances here making the general rule inapplicable, and bringing the exception into play. There are, on the contrary, two circumstances which make the general rule apply with particular force. At the time of the execution of the trust deeds the property was not even in existence in the form in which it was ultimately to reach the beneficiaries, and during the whole continuance of the trust a contingency existed which rendered it uncertain whether they would ever take at all The first circumstance was alluded to in Vincent v. Newhouse (83 N. Y. 511), and particular force was attributed to the latter in Delaney v. McCormack (88 N. Y. 183). If the rule.were not applied here it might well be thought to have no substantial existence at all. It follows that no interest in the proceeds derivable from the sale of the trust property vested until -the death of Sara F. Bunce. As Mrs. Homer and Mr. Geisse predeceased her, their shares in these proceeds lapsed, and passed under the residuary clause in the will of Cynthia A. Bunce,-to Elizabeth M. Bunce and Sara F. Bunce. The plaintiffs Bella Geisse and Nellie Geisse .are entitled to one: of such shares (one-half to each) as the residuary legatees of Sara F. Bunce, and the appellant George W. Bunce to the other share ■ as residuary legatee of Elizabeth M. Bunce. ■ Of the remaining two shares of the proceeds to be derived from the sale of the trust property, one goes to the executors of Nathaniel K. Bunce, who, being alive at the time of the death of Sara F. Bunce, took under, the provisions in the trust deeds, and the other to George W. Bunce as the sole child of Chauncey D. Bunce who survived the trust term. _ The other provisions of the judgment seem to have been entirely proper, and to have met with the approval of all parties. The judgment appealed from should be modified as indicated, and as so modified affirmed, with costs to all parties who filed briefs in this court to be paid out of the fund. Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred. Judgment modified as directed in the opinion, and as so modified affirmed, with costs to all parties who filed briefs in this court to be paid out of the fund.