Amos Terpening, Executor, &c., of Almira Terpening, deceased, v. John Skinner, and others, Executors, &c., of John Skinner, deceased

Amos Terpening, Executor, &c., of Almira Terpening, deceased, v. John Skinner, and others, Executors, &c., of John Skinner, deceased. A testator, by Ms will, executed in 1822, after giving certain real and personal property to Ms wife, for life, with remainder over, of ethe real property to his son J.; and of the personal to his daughters, directed as follows: “I further order that J. S. shall have an equal share in my lands in T. with my several daughters, instead of those mentioned in C. Secondly. I give and bequeath unto my son J. all that my certain farm situate in 0., except what is heretofore conveyed. *. * * * * I also order that the said J. shall pay to my several daughters, as hereinafter mentioned, that is to say: to M. H., or her heirs, the sum of $20, * * and unto the heirs of H. M., late deceased, the sum of $20, at, &e., which sum I order to be put at interest until said heirs arrive at lawful age; unto 0. B- the sum of $40, to be paid at the times aforesaid, and which I order my executors to dispose of as they shall see best for the heirs of C. B.; unto-M. H. the sum of $20, to be paid as aforesaid, and unto A. H. the sum of $20, &c. Thirdly. I give and bequeath unto my several daughters, M. H., the heirs of H. M., C. B., M. H. and A. H. all my lands situate in V.; also all my right, to one other piece of land situated in C., Sec., except that I order J. S. an equal share with my daughters in the aforesaid lands, except those in V., which is to be divided solely among my daughters; and I order my executors to sell the above lands as in their judgment they may see fit, and the money arising from the sale to be paid to my heirs aforesaid, except the heirs of H. M.; to be placed at interest until they arrive at lawful age. I also order the money arising from the share of G. B. to be retained by my executors, and by them applied for the benefit of the heirs of C. B., as they may think best. Fourthly. I give and bequeath unto my daughter C. B. one two year old heifer. Fifthly. I order all my personal property, not heretofore disposed of, divided equally amongst my heirs, after paying all my debts and funeral charges.” The testator left five children, and the'children of a deceased daughter, H. M., him surviving. His daughter, 0. B;, had one child living, at the date of the will, who died soon afterwards, and another, A. T., was born before the death of the testator. The husband of G. B. was insane at the time the will was made. In an action by A. T. against the executors of the testator to compel the payment to her of one-sixth of the estate of the testator, Held, that the object of the testator was to secure the fund arising from the share of C. B. from the possession and control of her insane husband. and not to give the title to it to the grand-child, A. T. That hy the will no estate in the land was vested in A. T., but it vested in the testator’s daughter, C. B. That the title remained in her, and could he in no one else until she was divested, either by a sale and conveyance hy herself, or a sale by the executors under the power contained in the will. This action was commenced in 1857, by Amos Terpening, .and Almira Terpening, Ms wife, against John SMnner (since deceased), who was the execiitor of the will of Gershom SMnner, the father of said John and the grandfather of the said Almira. The object of the action was to compel John Sldnner, as the executor of the will of his father, and as ■ trustee under the will, to account for a legacy of $40, and an interest in certain lands, or in their proceeds, which the plaintiff, Almira, claimed were bequeathed and devised to her by said will. The only question which the case presents depends upon the construction of the will; the plaintiffs claiming that the gifts in question were made to the said Almira Terpening; and the defendants, that her mother, Caty Bloodgood, was the legatee and devisee. The testator, by Ms will, which was made in May, 1822, after giving certam real and personal property to Ms wife, for life, with remainder over, of the real property to his son John, and of the personal to Ms daughters, directs as follows: “I further order that Isaac SMnner shall have an equal share in my lands in the town of Verona, with my several daughters, instead of those mentioned in Columbia. “ Secondly. I give and bequeath unto my son John Skinner all that my certain farm, situated in the town of Columbia aforesaid, except what is heretofore conveyed. I also give and bequeath unto my said son John Skinner one wagon, one sleigh, one plow, one harrow, and one horse;, and I order that the said John SMnner shall pay to my several daughters, as hereinafter mentioned, that is to say: to Margaret Hess, or her heirs, the sum of twenty dollars, one-half in one year and six months, and the remaining half in two years and six months after my decease;' arid unto the heirs of Hannah Myers, late deceased, the sum of twenty dollars, at the times last above mentioned, which sum I order put at interest by my executors until said heirs arrive at lawful age; unto Caty Bloodgood, the sum of forty dollars, to be paid at the times aforesaid, and which I order my executors to dispose of as they shall see best for the heirs of said Caty Bloodgood; unto Mary Hess the sum of twenty dollars, to be paid as aforesaid, and unto Amy Hess the sum of twenty dollars, at the time, above mentioned. Thirdly. I give and bequeath unto my several daughters, Margaret Hess, the heirs of Hannah Myers, Caty Bloodgood, Mary Hess, Amy Hess, all my lands situated in the town of Verona, in the county of Oneida; also all my right to one other piece of land situated in the town of Columbia, whereon there is a sawmill, being about sixteen acres, adjoining lands of William Gray and Conrad Hess, except that I order Isaac Skinner an equal share with my daughters in the aforesaid lands, except those in the town of Verona, which is to be divided solely amongst my daughters, and I order my executors to sell the above lands as in their judgment they may see fit, and the money arising from the sale to be paid to my heirs aforesaid, except the heirs of Hannah Myers, to be placed at interest until they arrive at lawful age. I also order the money arising from the share of Caty Bloodgood to be retained by my executors, and by them applied for the benefit of the heirs of said Caty BloodgOod, as they may think best. “ Fourthly, I give and bequeath unto my daughter, Caty Bloodgood, one two-year old heifer. “ Fifthly, I order all my. personal property not heretofore disposed of divided equally amongst my heirs, after paying all my debts and funeral charges.” John Skinner and John Jones were named as executors of the will, but the former only received letters testamentary. The testator died in February, 1824, aged 74 years, leaving a widow and one son, John (named as executor), and four daughters, Margaret Hess, Catherine Bloodgood (called Caty in the will), Amy Hess, and Mary Hess, his surviving children. Another daughter, Hannah Myers, had died before the date of the will. At the time of his death, the testator was the owner of some personal property, and of an undivided half of thirty-one acres of land, situated in the town of Columbia, on which there wa§ a saw-mill, and of 135 acres in Verona, being /the parcels mentioned in the will, and his son John was the owner of the other undivided half of both parcels. The son after the death of his father took possession of both parcels, and continued in possession of that in Columbia until the commencement of this action, and of that in Verona until June 1857, when he sold the whole parcel for $3,360. He had, about the year Í828, purchased the interest of all his sisters in the lands in Verona, and in December of that year received from his sister Caty a quit-claim deed of all her interest, therein. He paid to her the legacy of $40, and always acted upon the belief that he was bound to account to her, and not to her children during her life, for her portion under the will. She never requested him to sell the Colum bia lands, or asked him to account, or objected to his ad ministration of the estate. The plaintiffs, before the com mencement of this action, requested the executor to sell the Columbia lands, and to apply the share-belonging, as they claimed, to Almira Terpening for her benefit, and to account for her share of the proceeds ef the Verona lands, and the $40 legacy. The executor denied that Almira had any claim under the will, unless her mother had given her some right. Caty Bloodgood, after her marriage, remained hr her father’s family until his death, and was always on terms of affection with him. He was in feeble health for two or three years before his death, and she was the only one of his daughters who remained with, and attended him, after his strength failed. She had a child, which was living at the date of the will, but died in the summer of 1823. Another child; Almira (the original plaintiff in this-action), was seven or eight months old at the time of the death of the testator.- The husband of Caty Bloodgood' was insane at the time when the will was executed, and committed suicide, in July 1823. He was a carpenter, 'and depended upon his labor for income while living, and left property to the amount of about |600 only. Mrs. Bloodgood, after the death of ]ier first husband, married Jeremiah Barringer, and was living at the time of the commencement of this action, but had no issue, living, except the plaintiff, Almira Terpening. Upon these facts the referee, before whom the cause was tried, decided that Almira Terpening was never entitled to any portion of the estate of Gershom Skinner under his will; to which decision the plaintiffs excepted. Judgment was entered dismissing the plaintiffs’ complaint, and upon appeal to the general term of the supreme court that judgment was affirmed. (See 30 Barb. 373, S. C.) The plaintiffs thereupon brought the present appeal. The case was submitted here, upon the briefs of counsel, by Robert Earl, for the appellants. Roscoe Conkling, for the respondents. [MAJORITY — Denio, Ch. J. Johnson, J. Selden, J.] Denio, Ch. J. The main question arising under this very illiterate will is,” whether the testator’s granddaughter, Almira Bloodgood, afterwards Terpening, whose executor now prosecutes this action, took any estate or interest under the will. In respect to the legacy of $40, it is given in plain and explicit terms to the testator’s daughter, Caty Bloodgood, the mother of Almira; one-half of it to lie paid to the legatee in one year and six months, and the other, half in two years and six months from the testator’s decease, oby the defendant, who is a devisee of valuable interests by the will. But there is this qualification in the gift to Caty, if it be a qualification, namely: “And I- order my, executors to dispose of the $40 as they shall see best for the heirs of Caty Bloodgood.” The will also devises to his four daughters, including Caty Bloodgood, whose names are given, and to the heirs of another daughter who had died, a farm in Verona, Oneida county,-of which the testator was seized of an undivided half part, and to the same persons, and to Isaac Skinner a small piece of land in Columbia, Herkimer county, in which he was seized of a half share; the land to be sold by the executors, who are to pay the proceeds to the devisees, “the money arising from the share of Caty Bloodgood to be retained by my executors, and by' them applied for the benefit of the heirs of the said Caty Bloodgood as they may think best.” The defendant was the sole acting executor. The daughter Caty had an incompetent husband at the date of will. She had one child living at the date of the will, who died before the testator, and Almira, whose executor is the present claimant, was born after the making of the will and before the testator’s death. It is difficult to apply technical rules to such a disposition. If the property is considered as given to or for the benefit of Caty, with a remainder in her heirs, or her children as a class, the remainder is a vested cue in the child living at the testator’s death, subject to open and take in other children who may come into existence before the death of the devisee, for life. If this is the construction, the plaintiff, if he fully represent Caty, would have no present right to call the defendant to account, for Caty being yet living, the remainder has not vested in possession, though it has in interest; But I think this is not the effect of the gift: if even the language were to that effect, the rule in Shelley’s Case, which, had not been abolished when this will was. made, would apply and give the fee to the first named devisee. The trust in the executors, as to the proceeds would not enure, for they did not take an estate in the land or in the principal of the legacy, but only a power over the proceeds. The plaintiff can therefore prevail only on the assumption that the devise was direct to and for the immediate benefit of the heirs, as a class, passing the daughter by, and giving her no estate or interest. To do this we must treat the formal bequest and devise to her as without effect or meaning, and hold that she is mentioned only as the stock upon which the term heirs is predicated. There are several objections to this, besides the improbability of the testator making provision for persons yet to come into existence, to the exclusion of a living object of his bounty. Direct provisions should not be disregarded, if any probable construction would give them a meaning. It is not said that the money or the proceeds of the land are to be paid to the heirs, but only in the case of the legacy, that the executors shall dispose of it as they shall see best for the heirs, &c., and as to the proceeds of the land, it is to be by them applied for the benefit of the heirs, &o, My opinion, upon the best reflection I can bestow on the case, is, that it was intended by the testator, and that the construction is that the gift should be held direct to the testator’s daughter Caty, but that to avoid its being imprudently spent, the executors should have a control over it, and should exercise that control in such a manner as might be most for the benefit of Caty’s family. She then had one child and might have more,- and they were to be brought up and educated. If the money was paid directly into her hands, it might be spent and she left without ability to support her children. To prevent this the executors were clothed with a discretion as to the application of the money. It is unnecessary to say what the effect of this power , would be, but it is sufficient to defeat this action that a direct gift to the children was not intended. If the executors judged it best for the children that Mrs. Bloodgood should, have the money, I think they would be justified in paying it to her, as it seems they have done. The word heirs is certainly not used in a legal sense. I think it was used in a mere sense denoting Caty’s children or her family. I am for affirming the judgment of the supreme court. Johnson, J. It is difficult, from the terms of the will; to ascertain the precise intention of the testator, in respect to the devise and bequest to his daughter Caty Bloodgood. But I am unable to see how, in any view of the case, this granddaughter of the testator can have acquired any vested right or interest, either in the legacy of $40, or in the lands devised or the proceeds thereof. Nothing is given to her in terms; and, from the entire scope and terms of the will, I am entirely satisfied that she was only indirectly and incidentally the object of the testator’s bounty. Both the bequest and the devise are directly to the testator’s daughter Caty Bloodgood. The terms are, “unto Caty Blood good the sum of $40, to be paid at the times aforesaid”— which were, one-half in one year and a-half, and the othei half in two years and a-half. It is then added, “and which I order my executors to dispose of as they shall see best for the heirs of said Caty Bloodgood.” It is plain, from other parts of the instrument, that it was not designed by the testator that this sum should be invested for the children of Caty, as in the case of the children of his deceased daughter Hannah Myers. In regard to that bequest, the directions to invest until the children should come to the age of twenty-one, are explicit. The one in question was t® be disposed of by the executors, when paid, in a manner .most beneficial, in their judgment, to the heirs or children of Caty Bloodgood. The legal right and title were nevertheless in Mrs. Bloodgood, as it was given to her, and to no one else, but, to be disbursed by the executors, in such manner as to secure "the. greatest benefit to her children. This might well be accomplished by paying it directly to Mrs. Bloodgood. An ample reason is seen for this precaution, in the evidence respecting the habits and mental condition of the husband of Caty. The object undoubtedly was to secure the fund from the possession and control of the husband, and not to. give the title to it to the grandchild. And so in regard to the devise of the land; it is to his several daughters, naming them all, except Hannah Myers, whose share is given directly to her heirs. The lands in Yerona were to be divided equally between the daughters, and those in the town of Columbia equally between them and Isaac Skinner. And the moneys arising from the sale were to be divided in the same way, and paid to his heirs aforesaid. The share belonging to the heirs of Hannah Myers was to be invested or placed at ‘interest until they should arrive at lawful age. The moneys arising fr'om the share of Mrs. Bloodgood, in case of sale, were not to be put at interest or paid over to her, or her heirs, but to be retained by the executors and by them applied for the benefit of the heirs of “ Caty Bloodgood, as they may think best.” Certainly, under this will, no estate in the land vested in this granddaughter, but it vested in the daughter of the "testator. And the title most clearly remained in her, and could be in no one else until she was divested, either by a sale and conveyance by herself, or a sale by the executors under the power conferred by the will. This power, I think, the executors could not be compelled to exercise. Unless, in their judgment, it was fit and proper that the lands should be sold, no duty to sell devolved upon them. They did not see fit to sell it, and the title to that portion of Mrs. Bloodgpod’s share, remaining unsold, is still in her. Her title to the other portion she conveyed herself, as she had the clear right to do, and received the proceeds. There having been no sale by the executor, of the lands devised under the will, he had no funds in his hands from that source; for which he could be called to account. I am of the opinion, therefore, that the case was properly disposed of in the court below, and that the judgment should be affirmed. Selden, J. The construction given to the will in this case, by the referee and the supreme court, was correct, and the judgment appealed from should be affirmed, for the reasons given by Mr. Justice Bacon in that court. All the judges concurring, judgment affirmed.