
    Henry K. Pomroy, as Trustee of a Trust Created under the Will of Warren Newcomb, Deceased, in Favor of Josephine Louisa Newcomb, Respondent, v. Joseph A. Hincks and Brandt V. B. Dixon, as Ancillary Executors, etc., of Josephine Louisa Newcomb, Deceased, Respondents. Annie H. Owen and Others, Appellants.
    
      Will—disposition of a trust fund in which a testator’s widow is given a life estate and also the residue of the estate — when the corpus of the fund passes to the widow on the death of the testator's daughter after his decease.
    
    A testator by the 1st clause of his will gave to his wife an annuity of §10,000 and directed that sufficient of his estate he set aside to produce that sum. By the 2d clause of the will he gave the sum of §200,000 to trustees in trust to pay the- income thereof to his daughter during her life, and he directed thpt if his daughter should die without issue this “ devise or trust ” should revert to his wife absolutely, but that if she should die leaving issue the trust should continue for the benefit of such issue.
    The 3d clause of, his will provided, " after providing for all the previously named bequests, I give and devise to my dear wife Josephine Louisa Newcomb all the residue of my estate absolutely. In the event of the death of my wife Josephine Louisa Newcomb before my daughter Harriet Sophie, deceased, then the amount set aside in article No. 1 to provide for my wife’s annual income and all the residue of my estate shall revert absolutely to my daughter Harriet Sophie Newcomb upon her arriving at the age of twenty-one years.”
    The testator’s wife and daughter both survived Mm, but the daughter died unmarried and without issue prior to her mother.
    
      Held, that it was the testator’s intént that if the daughter should die without issue during the lifetime of his wife all his property should pass to his wife including the principal of the fund set aside to produce the annuity payable to the wife under the 1st clause of the will.
    Appeal by the defendants, Annie II. Owen and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of March, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, construing the last will and testament of Warren Newcomb, deceased.
    
      George Whitefield Betts, Jr., for the appellants.
    
      George F. Canfield, for the defendants,, respondents.
    
      John K. Berry, for the plaintiff, respondent.
   Ingraham, J.:

One Warren Newcomb died on the 28th day of August, T866, leaving a last will and testament, the construction of which is the object of this action. By the 1st clause of the will the testator gives and bequeaths to “ my beloved wife, Josephine Louisa New-comb, an annual income of Ten thousand ($10,000) Dollars pr. annum in gold or its equivalent, sufficient of my estate to be set aside and invested in good securities, the income of which will net Ten thousand Dollars gold pr. annum.”

The 2d clause of the will gives to trustees the sum of $200,000 in gold to be held by the trustees for the sole and separate use of his daughter, Harriet Sophie Newcomb, with a direction to pay the income to her during her life, and with a provision that if his daughter should die without issue this devise or trust ” was to revert to his wife absolutely, but that if she should die leaving issue, the trust was to continue for the benefit of such issue; and by the 3d clause of the will the testator provided that “ after providing for all the previously named bequests I give and devise to my dear wife Josephine Louisa Hewcomb all the residue of my estate absolutely. In the event of the death of my wife Josephine Louisa Hewcomb before my daughter Harriet Sophie, deceased-, then the amount set aside in article Ho. 1 to provide for my wife’s annual income and all the residue of my estate shall revert absolutely to my daughter Harriet' Sophie Hewcomb upon her arriving at the age of twenty-one years; ” and Adolph Redewald and George D. Morgan are appointed executors.

On the 15th day of June, 1867, in an action commenced by George D. Morgan, as executor of Warren Hewcomb, against Harriet Sophie Hewcomb, the daughter of the testator, and the others interested in the estate, a judgment was entered in the Supreme Court construing this will. At the time that judgment was entered, both the widow and daughter of the testator were alive, and the question as to the ultimate disposition of the fund was not presented. Subsequently and in the year 1869, when the accounts of the executors were before the surrogate for settlement, Josephine Louisa Hewcomb, the widow of the testator, presented a petition asking that, upon the final accounting and settlement of the estate by the executors, they be required to pay to her all of the estate in their hands, after payment of the costs and expenses of administration, and the $200,000 required to be paid to the trustee under the 2d clause of -the will. In that proceeding a decree of the surrogate was entered settling the executors’ accounts, adjudging that the said Josephine Louisa Hewcomb was not entitled to receive the fund held to realize the income of $10,000 per year under the 1st clause of the will, directing that the executors retain that fund and directing the manner of its investment. Subsequently to the entry of this decree on December 16,1870, Harriet Sophie Hewcomb died unmarried and without issue, whereupon the executor presented to-the surrogate his final account, and in that proceeding, on the 20th of February, 1871, a decree was entered directing the executor to pay over to Josephine Louisa Hewcomb, as the person entitled to the residuary estate of the testator under his will, all of the property in his hands, except the amount retained to produce the income of $10,000 per year provided for under the 1st clause of the will.

It is claimed by counsel for the appellant that it has been adjudicated in these proceedings that the widow of the testator was not entitled to receive the remainder in the sum set apart to procure for her $10,000 per year under the 1st clause of the will, but we can find no such adjudication. The judgment and decrees do not purport to determine the ultimate disposition of the fund. It was determined that the widow was not entitled 1o the possession of the fund during her life, but whether the remainder vested in her or the next of loin of the testator was not presented or determined. The judgment entered in this-action determined that the remainder in the fund under article 1 of the will vested in the widow, Josephine Louisa Newcomb, absolutely by virtue of . the general residuary clause in the 3d clause of the will, and the correctness of this determination is the only question to be determined on this appeal.

The testator, at the time this will was made, had a wife and one daughter, and his evident intent was to secure to them an income during their lives. By the express terms of the will the wife’s share of the property vested in the daughter upon the death of his wife. There is also a clear intent pervading the whole will that if the daughter should die without .issue during the lifetime of his wife all the testator’s property should go to his wife; thus, in the absence of direct descendants, preferring his wife to his brothers and sisters and their descendants. When we come to the 3d clause of the will we find the same predominating idea expressed. After making provision for the annuity to his wife, and the setting apart of the sum of $200,000 for the benefit of his daughter, he provides that the residue of his estate should go to his wife absolutely, subject to the provision that if his wife should die before his daughter, then the amount set aside to secure the annuity to his wife and all the residue of his estate was to vest absolutely in his daughter. In terms this provision is broad enough to include the remainder in the fund set apart to provide the income for the widow. It was property of the testator. After the death of the widow, its retention was not necessary to provide for any bequest made by the will, and' as the intent of the testator was that upon the death of the daughter his whole estate should belong to Ms widow, we think the judgment was correct.

Judgment affirmed, with costs to all parties appearing to be paid out of the estate.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.

Judgment affirmed, with costs to all parties appearing to be paid out of the estate.  