
    Thomas Case, as Executor, Plaintiff, v. Mary Case et al., Defendants.
    (Supreme Court, New York Special Term,
    March, 1896.)
    Will — Construction — Suspension of alienation.
    A will gave to testator’s mother a life interest in his real and personal estate and directed the executor to pay her the income during her life, and gave the estate equally to his brother and sister should they survive the mother, or to their children should either of them die,- and if either should die without issue, the whole to the survivor. Held, that there was no suspension of. alienation beyond the life of the mother. i
    Action for construction of will.
    Benjamin Franklin, for plaintiff.
    Hermann Yogel, for defendants.
   Pryor, J.

The action is for a construction of the dispositive clauses in the will of Frank Joseph Case, written as follows:. “ Second. I give and bequeath tinto my beloved mother, Mary Case, widow'of Frank- J. Case, deceased, a life interest in all my real and personal estate, and direct my executor to pay her the income thereof during her life should she survive me.

“ Third. I give and bequeath unto my loved sister Bertha Fox, wife of John Fox, and my beloved brother, Andrew Case, should they or either of them survive my said mother, and after her demise to their children, should either of them die, an undivided one-half interest in all my real and personal property, share and share alike; or should either of them die without leaving issue, it is my wish and I hereby order and direct that the whole of my real and personal property should go to the survivor.”

Though manifestly the production of a layman inexpert in' the art of composition, the will sufficiently evinces the intention of the testator in .the disposition of the realty — the point presented for adjudication.

The second clause gives a life estate to the mother of the testator. Ho title is communicated to the executor; nor is he, in terms, empowered to collect rents and profits. The implication of an estate in the executor from the direction to pay' income to the mother cannot prevail against the express and direct devise to her, especially since the intervention of the executor in the receipt of the income is neither a necessary nor apparently a convenient expedient. . Robert v. Corning, 89 N. Y. 225, 237.

Suppose,. however, the executor a trustee to receive and apply ^ rents and profits to the use of the mother, the estate of the trustee ceases with her life. 1 R. S. 730, § 67.

Where, upon examination of a will, taken as a whole, the -intention of the testator appears clear, but its plain and definite purposes are endangered by inapt- and inaccurate modes' of expression, the court may, and it is its duty to, subordinate the language to the intention;- it may reject words and limitatiqns, supply or transpose them to get at the correct meaning.” Phillips v. Davies, 92 N. Y. 199. In the light of-this cardinal canon of construction, the sense and effect of the third clause is manifestly that on the death of the mother the fee is to vest equally in the brother and sister of the testator, if they both be living at the death of the mother; if either be then dead the fee is-to •vest in the survivor and the issue, if any, of the deceased brother or sister; if the deceased brother or sister leave no issue the fee vests wholly in the survivor.

Ho provision is made for the devolution of the estate in the event that both the brother and sister of the testator' should die without issue during the life of his mother.

Upon the true construction of the clauses' of the will in. question, the conclusion is obvious that it involves no suspension of the power of alienation, beyond the life of the mother,, the primary devisee. The limitation over is of the absolute fee.

Judgment will be entered in accordance with this opinion.

Ordered accordingly.  