
    J. Frederic Kernochan, as Trustee under the Will of John R. Marshall, Deceased, of the Separate Trust for the Benefit of his Daughter Marie Marshall, Respondent, v. Marie Marshall, Respondent; John J. Wysong and Martha M. Wysong, Individually and as Trustees under the Will of John R. Marshall, Deceased, Appellants; Louise M. Pollock and Others, Respondents.
    
      Will—a power given to trustees to continue a trust in case of the incompetency of the beneficiary, construed — vesting of the corpus of the trust fund.
    
    The will of a testator gave his residuary estate to trustees, in trust, to apply the net income to the support of the widow during her life, and, upon her death, to divide the estate into several shares, one for the benefit of each of the testator’s daughters, and to apply the net income of one share to the benefit of each daughter during the period of twelve years after the decease of the wife, and, upon the expiration of such term, to transfer the principal to the daughter. The will further directed that if any daughter should die before the expiration of said period of twelve years, the share of such daughter should he distributed in the same manner as if the share had been the daughter’s own estate and she had died intestate, and a substantially similar provision was made in case of the death of a daughter occurring before that of the widow.
    The will then provided “ that if, a.t the expiration of the period of twelve years herein specified for the continuation of the trust or trusts in their favor, it be found by my executors, or their successors, that either of my said daughters is unable or incompetent to attend to and manage her estate, then they may continue to hold and manage the same upon the trust for such daughter so long as such inability or incompetency shall continue, the estate of such daughter, meantime, to become legally vested in like manner as if such trust were not so continued as last aforesaid.”
    
      Held, that the trust in the share of a daughter who was of unsound mind at the expiration of the term of twelve years after the death of the widow was con- „ tinued by the will;
    That the contingency in which the testator authorized'a continuance of the trust was not confined to unsoundness of mind, but included a case where the daughter should be unable or incompetent for any reason to manage her estate;
    That it was the intention of the testator, in providing that the estate of such ■ a daughter should meantime “become legally vested in like manner as if such trust were not so continued as last aforesaid,” to place such daughter on an equal footing with the other daughters, as to the absolute ownership - of the •corpus of her share, namely, that such corpus was hers absolutely, subject to the trust and capable of alienation either by deed or will, and not subject to be divested by her death during the extended trust term.
    Appeal by the defendants, John J. Wysong and Martha M. "Wysong, individually and as trustees under the will of John R. Marshall, deceased, from a final judgment of the Supreme Court, ■entered in the office of the clerk of the county of New York on the 9th day of May, 1898, upon the report of a referee.
    This appeal was transferred from the first department to the •second department.
    
      James C. Carter and J. McL. Nash, for the appellants.
    
      J. Frederic Kernochan, Henry F. Miller and. Egerton L. Winthrop, Jr., for the respondents.
   Cullen, J.:

This action is' brought to construe the will of John R. Marshall, "who died in the city of New York on the 20th day of April, ' 1881, leaving a widow and three daughters, and to settle the accounts of the trustees under that will. No objection was made to the accounts rendered by the trustees, and the only question presented on this appeal is the construction of one provision of the will. The general scheme of the testator’s will, so far as it is necessary to refer to it in this discussion, was as follows: He gave all his residuary estate to his executors and trustees in trust to apply the net income to the widow during life ; upon the death of the widow to divide the estate into several shares, one for the benefit of each daughter, and to apply the net income of each share to the benefit of a daughter during the period of twelve years after the decease of the wife, and upon the expiration of such term to transfer the principal to the daughter; but if the daughter should die before the expiration of said period of twelve years, then the testator directed the share of the daughter so dying to be distributed among her issue, next of kin or heirs at law, in the same manner as if the share had been the daughter’s own estate and she had died intestate. He made a similar disposition of the share of any daughter who might die before the decease of the widow, except that the distribution was to be made at the widow’s death. The will then continues, “ and I further provide, that if at the expiration of the period of twelve years herein specified for the continuation of the trust or trusts in their favor, it be found by my executors or their successors, that either of my said daughters is unable or incompetent to attend to and manage her estate, then they pa ay continue to hold and manage the same upon the trust for such daughter so long as such inability or incompetency shall continue, the estate of such daughter meantime to become legally vested in like manner as if such trust were not so continued as last aforesaid.” Twelve years have elapsed since1 the death of the testator’s widow. All the daughters of the testator survive, and to two of them their shares have been paid over. The third daughter, Marie, is of unsound mind, and a committee has been appointed of her person and property. The only controversy in the case is as to the management and control of this share. The appellants contend that the trust in the share of this daughter is continued by the will; while the respondents maintain that the trust ceased at the expiration of the term of twelve years after the widow’s demise, and that the principal of Marie’s share should be transferred to her committee.

We think that the intention of the testator is very clear. Under the will, the fee in the testator’s residuary property was carved into two estates: First, an estate in the trustees for the life of the widow, and for that of the daughter in case she should not survive the widow by the term of twelve years, or if she should so survive, then for the life of the widow and twelve years thereafter; second, a remainder upon the termination of the trust estate. This remainder probably was vested in each daughter under our statutory definition of vested estates. ¡Nevertheless it was subject to be divested by the death of a daughter before the expiration of the trust term. Such being the state of the interests of the beneficiaries, the testator made the further direction that, in the contingency that any daughter might, at the expiration of the trust term first provided for, be unable or incompetent to manage her estate, the trustees might continue to hold and manage the same upon trust for the daughter so long as the inability or incompetency should continue, but the estate of such daughter meantime to become legally vested in like manner as if such trust were not so continued as last aforesaid.” There is no inconsistency between the direction that the trustees should continue to hold and manage the estate in trust for the daughter and the direction that the estate of the daughter was to become legally vested in the same manner as if the trust were not continued, if we construe the latter direction as confined solely to the corpus, or rather to the remainder in the trust estate. As already stated, during the continuance of the main trust provided for by the will, a daughter’s interest in the corpus of the estate was subject to be divested by her death at any time before the expiration of twelve years after the decease of the widow. At the expiration of the trust term, however, the shares of the daughters competent to manage their estate would be paid to them, and they would be possessed of absolute ownership of the shares. The intention of the testator was merely to put any daughter as to whom it might be necessary to continue the trust on an equal footing, as to absolute ownership, with the other daughters; that is to say, the corpus of the share was to be hers absolutely, subject to the trust and capable of alienation either by deed or will, and not subject to be divested by her death during the extended trust term. It may be urged that as ¡Marie Marshall has been judicially declared of unsound mind, she is unable to dispose of the corpus of the estate. But the contingency in which the testator authorized a continuance of the trust was not confined to unsoundness of mind, but included a case where the daughter might be unable or incompetent to manage her estate for any reason —prodigality, lack of business capacity or the like. In such case it would be entirely fair that tlie daughter whose share was continued in trust should have the same right to dispose of the principal as her sisters had as to their shares, subject, however, to the trust. The construction adopted by the learned referee entirely abrogates the direction of the testator that the trust was to continue; and it is a cardinal rule in the construction of wills that effect should be given to each direction of the testator, if possible, and that every effort should be made to harmonize provisions of the will seemingly in conflict.

The judgment should be modified so as to direct that the plaintiffs, as trustees under the will of John R. Marshall, deceased, hold the share of Marie Marshall during the time she may be of unsound mind in trust, to apply the income to the use of the said Marie Marshall, costs of all parties to be paid out of the fund.

All concurred.

Judgment modified so as to'direct that the plaintiffs, as trustees under will of John R. Marshall, deceased, hold the share of Marie Marshall during the time she may be of unsound mind in trust, to apply the income to the use of the said Marie Marshall. Order to be settled on notice. Costs of all parties to be paid out of the fund.  