reaching effect which have been so thoroughly briefed and ably argued by counsel appearing on both sides, and they are to be commended for their efforts in behalf of the parties they represent. We have carefully examined the record and the authorities cited, and after a careful consideration we have reached the conclusion that the one controlling question, in so far as the deposit involved in this controversy is concerned, is properly disposed of in this opinion. The judgment of the trial court is affirmed. It is so ordered. Costs are awarded to respondent. McCarthy, Dunn, and Lee, JJ., concur. Petition for rehearing denied September 27, 1922. ANNOTATION. Constitutionality of statute relating to preferences in assets of insolvent bank. There is comparatively little authority upon the question suggested in the title to this annotation, and which was passed upon in the reported case (RE FIDELITY STATE BANK, ante, 781). The validity of statutes creating preferences under certain conditions has been sustained. A statute conferring upon savings depositors in a bank having savings and commercial departments, a preference in the distribution of the assets of the savings department, and entitling them to share ratably with commercial depositors in the distribution of all other assets and resources of the bank, was sustained in Upham v. Bramwell (1922) 105 Or. 597, 25 A.L.R. 919, 209 Pac. 100, 210 Pac. 706, as against the objection that the statute, so construed, authorized the taking of property of commercial depositors without due process of law, in violation of the 5th and 14th Amendments to the Federal Constitution. In Abilene Nat. Bank v. Dolley (1912) 228 U. S. 1, 57 L. ed. 707, 33 Sup. Ct. Rep. 409, it was held that national banks cannot claim that, as to dealings after the Kansas State Depositors' Guaranty Law of March 6, 1909, went into effect, the obligation of their contract was impaired and their property taken without due process of law, because as creditors they did not share equally with depositors under that statute in the assets of an insolvent state bank. On the contrary, other statutes creating or altering preferences have been held invalid. Thus, a statute denying a preference to public funds wrongfully deposited was held invalid in the reported case (RE FIDELITY STATE BANK). In State v. Bank of Tennessee (1875) 64 Tenn. 1, it appeared that the common school fund had been placed in a bank to constitute part of its capital, and it was held that it thus became assets of the bank to which the creditors of the bank had a right to look, and that these assets constituted a trust fund applicable to the payment of the debts of the bank, so that a statute which appropriated the assets of the bank as school fund impaired the obligation of the contract between the bank and its creditors, and was, therefore, null and void, as was also an assignment made in pursuance of the statute, so far as it gave preference to the school fund. In Baring v. Dabney (1873) 19 Wall. (U. S.) 1, 22 L. ed. 90, it was held that the assets of a bank, the stock of which was altogether owned by a state, could not be appropriated by legislative act, or otherwise, to pay the debts of the state as distinguished from the debts. of the bank; that if the statute had the effect to appropriate the assets of the bank to pay the debts of the state to the prejudice of bill holders and other creditors of the bank, it would be repugnant to that clause of the Constitution which prohibits the law impairing the obligation of contract. A limitation upon the power of a state to give preferences is found in the decision of the United States Supreme Court in United States v. Oklahoma (1922) 261 U. S. 253, 67 L. ed. 638, 43 Sup. Ct. Rep. 295, to the effect that the priority given to the United States by Federal statute in the assets of insolvent debtors cannot be impaired or superseded by state law. The right to a preference given by constitutional provision to holders of bank notes and depositors who have not stipulated for interest, which has become fixed by the insolvency of the bank, cannot thereafter be taken away, even by a change in the state Constitution, since such a result would be a violation of the provision of § 10, art. 1, of the Federal Constitution, which inhibits the passage by a state of any law impairing the obligations of contracts. Harris v. Walker (1917) 199 Ala. 51, 74 So. 40. According to the court the right of the depositors of the insolvent bank who did not stipulate for interest to have their claims satisfied in full before other creditors were paid arose out of their contract with the bank as controlled by the constitutional guaranty then in force. It was, according to the court, in the fullest sense, the obligation of a contract, which could not be impaired by either the Constitution or statute of a state. Bullard, J., in Atchafalaya R. & Bkg. Co. v. Bean (1843) 3 Rob. (La.) 414, says that the legislature cannot constitutionally, by any act subsequent to the creation of a debt, interfere to change the relative rank of creditors inter se; that two creditors who stood equal originally in the eyes of the law, and had an equal right to be paid, neither having any special lien or privilege over the other, must forever remain equal, notwithstanding any act of the legislature apparently sanctioning a different doctrine. See the reported case (RE FIDELITY STATE BANK, ante, 781). W. A. E. NEW YORK LIFE INSURANCE & TRUST COMPANY, Trustee, etc., of Jabez A. Bostwick, Deceased, Respt., V. EGERTON L. WINTHROP, JR., Exr., etc., of Evelyn B. Voronoff, Deceased, et al., Appts. FARMERS LOAN & TRUST COMPANY, Exr., etc.,, of Helen C. Bostwick, Deceased, et al., Respts. a New York Court of Appeals — November 20, 1923. (237 N. Y. 93, 142 N. E. 431.) Wills division per stirpes. 1. The division in case of a substituted gift to the next of kin of a person named will be per stirpes, where the rule requiring per capita division in case of a gift to issue has been changed by statute. [See note on this question beginning on page 799.] APPEAL by defendants Winthrop et al. from a judgment of the Appellate Division of the Supreme Court, First Department, reversing a judgment of a trial term for New York County entered upon the report of a referee, in an action brought for settlement of the accounts of the plaintiff trustee and for construction of a will. Reversed. The facts are stated in the opinion of the court. Messrs. Frederick W. Stelle, Arthur E. Pettit, and Robinson K. Bissell, with Messrs. Winthrop & Stimson, for appellant Winthrop: The words "next of kin of said Mrs. Morrell," refer to those persons answering such description who were living at the date of the death of Mrs. Bostwick, April 27, 1920; such was the intent of the testator, as shown by the scheme of the will, and by the use of the words, in connection therewith, "and upon the death of my wife and daughter to convey, assign, and deliver." Cammann v. Bailey, 210 N. Y. 19, 103 N. E. 824; Ossman v. Von Roemer, 221 N. Y. 381, 117 N. E. 576; Fulton Trust Co. v. Phillips, 218 N. Y. 573, L.R.A.1918E, 1070, 113 N. E. 558; Re Lamb, 182 App. Div. 180, 169 N. Y. Supp. 614, affirmed in 224 N. Y. 577, 120 N. E. 866; Re Gee, 201 App. Div. 540, 194 N. Y. Supp. 434; Connelly v. O'Brien, 166 N. Y. 406, 60 N. E. 20; Goebel v. Wolf, 113 N. Y. 405, 10 Am. St. Rep. 464, 21 N. E. 388; Canfield v. Fallon, 43 App. Div. 561, 60 N. Y. Supp. 1134; Re Embree, 9 App. Div. 602, 41 N. Y. Supp. 737; United States Trust Co. v. Taylor, 193 App. Div. 153, 183 N. Y. Supp. 426, affirmed in 232 N. Y. 609, 134 N. E. 591; Re Buechner, 226 N. Y. 440, 123 N. E. 741. Even if it be held that the above considerations do not show that the testator intended the remainders to be contingent, a well-settled rule of construction nevertheless demands that the remainders in the instant case be construed as contingent. Roosa v. Harrington, 171 N. Y. 341, 64 N. E. 1; Cammann v. Bailey, supra; Fulton Trust Co. v. Phillips, 218 N. Y. 573, L.R.A.1918E, 1070, 113 N. E. 558; Re Pulis, 220 N. Y. 196, 115 N. E. 516; Wright v. Wright, 225 N. Y. 329, 122 N. E. 213; Dickerson v. Sheehy, 156 App. Div. 101, 141 N. Y. Supp. 35, affirmed in 209 N. Y. 592, 103 N. E. 717; Salter v. Drowne, 205 N. Y. 204, 98 N. E. 401; Schlereth v. Schlereth, 173 N. Y. 444, 93 Am. St. Rep. 616, 66 N. E. 130; Re Crane, 164 N. Y. 71, 58 N. E. 47; Re Baer, 147 N. Y. 348, 41 N. E. 702; Delaney v. McCormack, 88 N. Y. 174; Smith v. Edwards, 88 N. Y. 92; United States Trust Co. v. Nathan, 112 Misc. 502, 183 N. Y. Supp. 66, affirmed in 196 App. Div. 126, 187 N. Y. Supp. 649, which is affirmed in 233 N. Y. 505, 135 N. E. 894; Re Farmers' Loan & T. Co. 236 N. Y. 242, 140 N. E. 576; Goebel v. Wolf, 113 N. Y. 405, 10 Am. St. Rep. 464, 21 N. E. 388; Re Tienken, 131 N. Y. 391, 30 N. E. 109; Re Brown, 154 N. Y. 313, 48 N. E. 537. The distribution of the fund to the next of kin of Mrs. Morrell should be per stirpes, and not per capita. Soper v. Brown, 136 N. Y. 244, 32 Am. St. Rep. 731, 32 N. E. 768; Schmidt v. Jewett, 195 N. Y. 486, 133 Am. St. Rep. 815, 88 N. E. 1110; Re Union Trust Co. 170 App. Div. 176, 156 N. Y. Supp. 32, affirmed in 219 N. Y. 537, 114 N. E. 1048; Petry v. Petry, 186 App. Div. 738, 175 N. Y. Supp. 30, affirmed in 227 N. Y. 621, 125 N. E. 924; Re Durant, 231 N. Y. 41, 132 N. E. 562; Ferrer v. Pyne, 81 N. Y. 281; Whitehead v. Ginsburg, 197 App. Div. 266, 188 N. Y. Supp. 739; Cogan v. McCabe, 23 Misc. 739, 52 N. Y. Supp. 48; Re Fidelity Trust & Guaranty Co. 57 App. Div. 532, 68 N. Y. Supp. 257; Erdman v. Meyer, 52 Misc. 256, 102 N. Y. Supp. 197; Dwight v. Gibb, 150 App. Div. 573, 135 N. Y. Supp. 401; Slosson v. Lynch, 43 Barb. 147; Re Fay, 77 Misc. 514, 137 N. Y. Supp. 983; Armstrong v. Galusha, 43 App. Div. 253, 60 N. Y. Supp. 1; Woodward v. James, 115 N. Y. 346, 22 N. E. 150; Bisson v. West Shore R. Co. 143 N. Y. 125, 38 N. E. 104; Re Barker, 230 N. Y. 364, 130 N. E. 579; 40 Cyc. 1492. Mr. Albert Ritchie, with Messrs. Seacord, Ritchie, & Young, for appellants trust company et al.: The intention of the testator would be carried out by holding that the class to take was not to be determined until the time fixed for distribution. Re Buechner, 226 N. Y. 440, 123 N. E. 741; Robinson v. Martin, 200 N. Y. 159, 93 N. E. 488; Re James, 146 N. Y. 78, 48 Am. St. Rep. 774, 40 N. E. 876; Mullarky v. Sullivan, 136 N. Y. 227, 32 N. E. 762; Salter v. Drowne, 205 N. Y. 204, 98 N. E. 401; Bergmann v. Lord, 194 N. Y. 70, 86 N. E. 828; Delaney v. (237 N. Y. 93, 142 N. E. 431.) McCormack, 88 N. Y. 174; Hadcox v. Cody, 213 N. Y. 570, 108 N. E. 84; United States Trust Co. v. Taylor, 193 App. Div. 153, 183 N. Y. Supp. 426, affirmed in 232 N. Y. 609, 134 N. E. 591; Delafield v. Shipman, 103 N. Y. 463, 9 N. E. 184; Lese v. Miller, 71 App. Div. 195, 75 N. Y. Supp. 675; Warner v. Durant, 76 N. Y. 133; Smith v. Edwards, 88 N. Y. 92; Clark v. Cammann, 160 N. Y. 315, 54 N. E. 709; Re Crane, 164 N. Y. 71, 58 N. E. 47; Re Baer, 147 N. Y. 348, 41 N. E. 702; Wright v. Wright, 225 N. Y. 329, 122 N. E. 213; Gilliam v. Guaranty Trust Co. 186 N. Y. 127, 116 Am. St. Rep. 536, 78 N. E. 697; Schlereth v. Schlereth, 173 N. Y. 444, 93 Am. St. Rep. 616, 66 N. E. 130; Paget v. Melcher, 26 App. Div. 12, 49 N. Y. Supp. 922. The plain implication of the will, as well as the presumption of law in this state, is that the class described in the will as the next of kin of Mrs. Morrell take per capita, and not per stirpes. Woodward v. James, 115 N. Y. 346, 22 N. E. 150; Re Barker, 230 N. Y. 364, 130 N. E. 579; Soper v. Brown, 136 N. Y. 245, 32 Am. St. Rep. 731, 32 N. E. 768; Schmidt v. Jewett, 195 N. Y. 486, 133 Am. St. Rep. 815, 88 N. E. 1110; Petry v. Petry, 186 App. Div. 738, 175 N. Y. Supp. 30, affirmed in 227 N. Y. 621, 125 N. E. 924; Bisson v. West Shore R. Co. 143 N. Y. 125, 38 N. E. 104; Dugdale v. Dugdale, 11 Beav. 402, 50 Eng. Reprint, 872; Welsh v. Crater, 32 N. J. Eq. 177; Jarman, Wills, 6th ed. 1711; McIntire v. McIntire, 192 U. S. 116, 48 L. ed. 371, 24 Sup. Ct. Rep. 196; Re Farmers' Loan & T. Co. 213 N. Y. 168, 2 A.L.R. 910, 107 N. E. 340. Mr. James A. Dilkes for appellants Bostwick et al. Mr. Charles Angulo, with Messrs. Geller, Rolston, & Blanc, for respondent trustee: The words "next of kin" must be presumed to have been used by the testator in their technical sense. Tillman v. Davis, 95 N. Y. 17, 47 Am. Rep. 1; Gundry v. Pinniger, 14 Beav. 99, 51 Eng. Reprint, 222, 20 L. J. Ch. N. S. 635, 15 Jur. 1147; Johnson v. Brasington, 156 N. Y. 181, 50 N. E. 859; United States Trust Co. v. Taylor, 193 App. Div. 153, 183 N. Y. Supp. 426, affirmed in 232 N. Y. 609, 134 N. E. 591; 2 Alexander, Wills, § 855; 35 Harvard L. Rev. 890; Holloway v. Holloway, 5 Ves. Jr. 399, 31 Eng. Reprint, 649, 5 Revised Rep. 81, 25 Eng. Rul. Cas. 687; Stokes v. Van Wyck, 83 Va. 724, 3 S. E. 387; Re Bump, 234 N. Y. 60, 136 N. E. 295; 2 Jarman, Wills, 6th ed. p. 139; 2 Redfield, Wills, 4th ed. p. 94; Wallace v. Diehl, 202 N. Y. 156, 33 L.R.A. (N.S.) 9, 95 N. E. 646; Theobald, Wills, 5th ed. p. 313, ¶ 8; Gundry v. Pinniger, 1 DeG. M. & G. 502, 42 Eng. Reprint, 647, 21 L. J. Ch. N. S. 405, 16 Jur. 483; Jacobs v. Jacobs, 16 Beav. 557, 51 Eng. Reprint, 895, 22 L. J. Ch. N. S. 668, 17 Jur. 293, 1 Week. Rep. 238; Markham v. Ivatt, 20 Beav. 579, 52 Eng. Reprint, 727; New York L. Ins. & T. Co. v. Hoyt, 161 N. Y. 1, 55 N. E. 299; Whall v. Converse, 146 Mass. 345, 15 N. E. 660; Jenkins v. Gower, 2 Colly. Ch. Cas. 537, 63 Eng. Reprint, 851, 10 Jur. 702; Seifferth v. Badham, 9 Beav. 370, 50 Eng. Reprint, 386, 15 L. J. Ch. N. S. 345, 10 Jur. 892; Lasbury v. Newport, 9 Beav. 376, 50 Eng. Reprint, 388; Cable v. Cable, 16 Beav. 507, 51 Eng. Reprint, 874; Urquhart v. Urquhart, 13 Sim. 613, 60 Eng. Reprint, 239, 8 Jur. 161; Smith v. Smith, 12 Sim. 317, 59 Eng. Reprint, 1153; Bird v. Luckie, 8 Hare, 301, 68 Eng. Reprint, 375, 14 Jur. 1015; Bull-. ock v. Downes, 9 H. L. Cas. 1, 11 Eng. Reprint, 627; Mortimore v. Mortimore, L. R. 4 App. Cas. 448, 48 L. J. Ch. N. S. 470, 27 Week. Rep. 575-H. L.; Welch v. Blanchard, 208 Mass. 523, 33 L.R.A. (N.S.) 1, 94 N. E. 811. The interests of the next of kin of Mrs. Morrell were not contingent upon their surviving Mrs. Bostwick. Goebel v. Wolf, 113 N. Y. 405, 10 Am. St. Rep. 464, 21 N. E. 388; Connelly v. O'Brien, 166 N. Y. 406, 60 N. E. 20; Scott v. Guernsey, 48 N. Y. 106; Low v. Harmony, 72 N. Y. 408; Ossman v. Von Roemer, 221 N. Y. 381, 117 N. E. 576; Fulton Trust Co. v. Phillips, 218 N. Y. 580, L.R.A.1918E, 1070, 113 N. E. 558; Theobald, Wills, 5th ed. p. 310; 2 Jarman, Wills, Bigelow, 6th ed. p. 141; Re Baer, 147 N. Y. 348, 41 N. E. 702. Messrs. Morris & McVeigh, for respondent de Pret: Mr. Bostwick's will indicated that it was his intention that the date of Mrs. Morrell's death should control. Hawley v. James, 5 Paige, 466; Lawrence v. Bayard, 7 Paige, 70; United States Trust Co. v. Taylor, 193 App. Div. 153, 183 N. Y. Supp. 426, affirmed in 232 N. Y. 609, 134 N. E. 591. The words "to the next of kin of said Mrs. Morrell" were used in their primary and technical sense, and de scribed those persons who were her next of kin on her death. Arnot v. Arnot, 75 App. Div. 230, 78 N. Y. Supp. 20; Mundt v. Glokner, 26 App. Div. 123, 50 N. Y. Supp. 190; Salter v. Drowne, 205 N. Y. 204, 98 N. E. 401; Simonson v. Waller, 9 App. Div. 503, 41 N. Y. Supp. 662; Gundry v. Pinniger, 7 Eng. L. & Eq. Rep. 148; New York L. Ins. & T. Co. v. Hoyt, 161 N. Y. 1, 55 N. E. 299. Upon the death of Mrs. Morrell each of her next of kin acquired an absolute vested remainder in the trust estate, subject only to Mrs. Bostwick's life estate. Hennessy v. Patterson, 85 N. Y. 91; Re Baer, 147 N. Y. 348, 41 N. E. 702; Salter v. Drowne, 205 N. Y. 204, 98 N. E. 401; Moore v. Littel, 41 N. Y. 66; United States Trust Co. v. Taylor, supra; Dougherty v. Thompson, 167 N. Y. 472, 60 N. E. 760; Roosa v. Harrington, 171 N. Y. 341, 64 N. E. 1; Losey v. Stanley, 147 N. Y. 560, 42 N. E. 8; Campbell v. Stokes, 142 N. Y. 23, 36 N. E. 811; Re Embree, 9 App. Div. 602, 41 N. Y. Supp. 737, affirmed without . opinion in 154 N. Y. 778, 49 N. E. 1096; Loder v. Hatfield, 71 N. Y. 92. The law favors the vesting of estates and endeavors to defeat the disinheritance of remaindermen because of their death before that of the life tenant. Goebel v. Wolf, 113 N. Y. 405, 10 Am. St. Rep. 464, 21 N. E. 388; Bowditch v. Ayrault, 138 N. Y. 222, 33 N. E. 1067; Hersee v. Simpson, 154 N. Y. 496, 48 N. E. 890; Connelly v. O'Brien, 166 N. Y. 406, 60 N. E. 20; Re Russell, 168 N. Y. 169, 61 N. E. 166; Cammann v. Bailey, 210 N. Y. 19, 103 N. E. 824; United States Trust Co. v. Taylor, 193 App. Div. 153, 183 N. Y. Supp. 426, affirmed in 232 N. Y. 609, 134 N. E. 591; Re Bump, 234 N. Y. 60, 136 N. E. 295. Messrs. Charles Green Smith and Lawrence Atterbury for respondent Gilbert. Mr. Garrett A. Brownback for respondents Francis et al. Cardozo, J., delivered the opinion of the court: The action is brought for the settlement of the accounts of a trustee and for the construction of a will. Jabez A. Bostwick, who died in August, 1892, divided his residuary estate into three equal parts. One of "said equal third parts" he devised and bequeathed to the New York Life Insurance & Trust Company in trust to pay the income thereof to his wife, Helen C. Bostwick, during life, and "upon her death to pay the same" to his daughter Mrs. Nellie Bostwick Morrell during life, and upon the death of his "said wife and daughter to convey, assign and deliver the said estate real and personal so held in trust to the lawful issue of Mrs. Nellie Bostwick Morrell share and share alike, or in default of such issue to the next of kin of Mrs. Morrell." A second share was given to another trustee upon like trusts, but for the benefit of another daughter. A third share, disposed of upon trusts for the benefit of a son, was the subject of a litigation recently before us. Re Bostwick, 236 N. Y. 242, 140 N. E. 576. The trusts for the son were substantially the same as those for the daughters, except that one half of the principal was to be paid to him when he attained the age of twenty-one. We held that his right to this half, "whether it be classified as vested or contingent, was subject to be devested by his death before his mother." 235 N. Y. 242, at page 245. "The trus tee at the appointed time was not merely to convey and assign. It was also to deliver. Conveyance and delivery were impossible while the trust for the mother was outstanding." 236 N. Y. 242, 246. "Majority did not give an indefeasible title to the half without survivorship at the end of the primary trust, and survivorship did not give it, without the attainment of majority." 236 N. Y. 242, 246. The first of the three shares is the subject-matter of this action. Nellie Bostwick Morrell died without issue in January, 1906. Her mother, the testator's widow, died in April, 1920. The trustee was then under a duty to distribute the estate so held in trust among the next of kin of Mrs. Morrell. We are to determine the point of time which the testator had in mind as the one for |