
    Barnard et al. v. Barnard et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    September 19, 1889.)
    Wills—Construction—Words Creating Trust.
    Testator devised property to H., “to hold for the benefit of his children, if he so elects. ” H., at the time the will was made, and at testator’s death, had children. The will was signed by H. as a witness, and it was probated on his testimony. Rev. St. N. Y. (8th Ed.) p. 3549, § 50, provides that if one to whom any beneficial devise is made shall be a subscribing witness to the will, and the will cannot be proved without his testimony, the devise shall be void, and he shall he competent to prove the will. Held, that the words “if he so elects” applied only to the office of trustee given to H., and that the will created a trust for the benefit of H.’s children, leaving it optional with H. to accept or refuse the trust, and that, as he had no beneficial interest, the devise was not rendered void by the fact that he testified to the execution of the will, this construction being adopted to carry out the testator’s intention to provide for H.’s children, and to prevent intestacy as to the property devised.
    Appeal from special term, Oneida county.
    Argued before Hardin, P. J., and Martin and Kennedy, JJ.
    
      William Kernan, for appellants. Miller, Finche & Brandage, for respondents. ,
   Kennedy, J.

The controversy in this ease arises as to the construction to be given the following clause in the will of one Harvey Barnard: “Third. I do give, devise, and bequeath to my brother, Henry Barnard, my one-fourth interest in the store Ho. eighty-five Genesee street, Utica, and running through to Catherine street, for him to hold for the benefit of his children, if he so elects. ” Henry Barnard, the devisee, signed the will as a witness, and was a necessary one to prove it, and on the probate thereof was sworn and-examined as such. If by the above bequest an absolute estate in the land devised was given to the said Henry, then, by the provisions of the Revised-Statutes, (8th Ed. p. 2549, § 50,) the same is void. On the other hand, if by the same a trust-estate was created for the children of said Henry, and he took the same in trust for them, it is valid notwithstanding he was a witness to, and one necessary to prove, the will. The language adopted by the testator is at least awkward, and leaves the question of his actual intent resting upon the words used alone somewhat in doubt. If, however, from it a conclusion can be safely reached as to what such intent was, it is the duty of the-court to adjudge the same, and see that it is carried out. On the other hand, if upon the examination of the instrument, 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 limitations, supply or transpose them, to get at the correct meaning. Phillip v. Davies, 92 N. Y. 199. It seems to us that any construction which maybe-given the clause in question must be somewhat strained because of the obscurity thrown around the testator’s intent by the language selected. He had one of two objects in view,—either to vest an absolute estate in Henry, or to-create a trust-estate in and for the benefit of Henry’s children at that time; there being three of those who at the time the will was made survived the testator and are now living; a fourth, born after that, was living at the time-of the testator’s death, dying, however, soon after that. It was found by tlielearned court at special term that the first of the purposes existed.

The contention on the part of the appellants, children of said Henry Barnard, on the other hand, is that the testator’s intent was to create a trust-estate for them, and that the father was simply nominated a trustee, subject to his acceptance of the office. A solution of the question will be found only in the conclusion whether the language .“if he so elects” properly relates to-the subject-matter of the devise, or whether it is to be construed as relating alone to the office of trustee. A familiar rule of construction is that, when the language of a written instrument is subject to two interpretations, the one sustaining and the other tending to defeat its provisions, that shall be adopted which shall validate the writing. If the construction given by the court below is correct, the effect is to entirely thwart the purpose of the testator, and to deprive both Henry and his children of the property, and, as to-it, to adjudge that he died intestate. In construing an instrument of this-nature partial intestacy, if possible, should be avoided. Vernon v. Vernon, 53 N. Y. 357. It may be fairly assumed that both the testator and Henry knew the law governing the question, and that the former, if he did not understand that he was making a valid bequest and creating an estate alone for the-benefit of Henry’s children, would not have requested Henry to become a subscribing witness to his will; or, on the other hand, that Henry would have-intentionally defeated the purpose of the testator in doing this. It maybe further suggested in this connection, if the trial court was correct in finding that the devise to Henry was absolute, subject to his election to convert it into a trust-estate for his children, that, at the time the will was executed, by becoming a subscribing witness he thereby declared his election to treat the estate as a trust-estate for the beneficiaries named. If it be held that the-words referred to relate to the estate, then they become superfluous,* since without them Henry could of his own volition at any time have converted it into a trust-estate for his children. The language adopted does not amount even to a request by the testator that Henry should so treat the subject of the-devise. On the other hand, if it is held that the words “if he so elects” refer to the office of trustee, we shall find meaning in the expression, and by so •doing serve to accomplish one of the apparent purposes the testator had in view, and thus avoid the embarrassment and injustice which would follow a finding that as to this part of the estate the decedent died intestate. Hor can we see that this construction is forced or unnatural. ' That the testator meant to dispose of this part of his estate for the benefit of Henry or his children is apparent. Each was a proper object of his bounty; and, if we hold that the estate was in trust, we shall carry out one design he had in view. On the other hand, a different holding will serve to wholly defeat his purpose. Without the added words “if he so elects” a trust-estate was created for the children of Henry, he being appointed a trustee'"of the same. Suppose the sentence is made to read, as it may be without doing violence to the expression, “if he elects to act.as trustee,” and he refused the office, such refusal would not defeat the purposes of the testator, or destroy the trust. The law will not allow a trust to fail for want of a trustee. Perry, Trusts, (3d Ed.) § 38, and cases cited. We are therefore disposed to hold that it was the indent and purpose of the testator to create, and therefore he did create, a trust-estate for the children of Henry; that he nominated him as trustee, making it •optional with him whether he accepted the office or not, but, in case of his refusal to do so, leaving it with the court to provide a proper trustee. This ■construction, while it tends to carry out the purpose of the testator, and prevents an absolute failure of the devise, at the same time serves to do justice to the contemplated beneficiaries. We have examined carefully the many .authorities cited by the learned counsel for the plaintiffs, and find in them gen•eral rules for construing wills, but nothing tending specially to elucidate the ■question in hand, and are therefore left to give this clause in the will such interpretation as to us seems best calculated to meet the intent of the testator ■and to accomplish the purpose which it appears from the language used he had in view. It follows that a new trial should be granted. Hew trial granted, with costs to abide the event. All concur.  