
    Quackenbos, executor, etc., v. Kingsland.
    
      (Court of Appeals,
    
    
      Filed April 13, 1886.)
    
    Will—Construction of.
    The will of Kingsland the elder, after ceriain specific legacies, provided as follows: “All the rest, resi ue and remainder of my estate, both real and personal, I give, devise and bequeath unto my son Daniel Kingsland, and o his heirs; 1 ut in case my son Daniel should die without lawful issue, I give and be ueath it to my remaining chi • ren, share and share alike." Meld, that the contingency of d a.h was death of the legatee during the 1 fe-time of the testator; and, as he outlived the testator, he became vested with the resid 'ary estate, an i was entitled to its possesion, and plaintiffs, who were the “íemaiuing children,” took nothing upon his ' aeat.i under said will.
    
      George W. Lord and N. Quackenbos, for appellant.
    
      Charles E. Miller, for respondent.
   Danforth, J.

The plaintiffs Jane and Hannah are children, and the other plaintiffs grandchildren of Daniel Kingsland the elder. They brought this action against Sophie Kingsland, the widow of Daniel Kingsland the younger, who was a son of Daniel Kingsland the elder, to recover certain property theretofore given to her by him, but which, as they stated, belonged to the estate of Kings-land the elder, and to which they claimed to be entitled as devisees under his will. They succeeded at the special term, but on appeal to .the general term the judgment in their favor was reversed, and their complaint dismissed, upon the sole ground, as stated in the order of reversal, “that they took no interest under that will.” The testator, Daniel Kingsland the elder, died April 18, 1844. He left surviving, the two daughters above named, his son Daniel, and his son Thorn. The will was admitted to probate May 3, 1844; and then died, first, Thorn, leaving four children, viz., the plaintiffs Daniel 0., Charles S., Louisa, and James S. Afterwards, and on the 30th of September, 1881, died Daniel Kingsland the younger. The will of Kingsland the elder, after certain specific devises and legacies, provided as follows:

“All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath unto my son Daniel Kingsland, and to his heirs; but in case my son Daniel should die without lawful issue, I give and bequeath it to my remaining children, share and share alike.”

By codicil a specific devise was given, out of the residue of personal estate, to James S. Kingsland, but the question upon this appeal is unaffected by it, and turns upon the true construction of the residuary clause above set out. Upon the case made by the pleadings and findings of the trial court, that question was whether Daniel Kingsland the younger took the residue of his father’s estate absolutely. To answer it we must look for the intention of the testator, and that seems plain upon the language employed by him. It gives the remainder of his estate to his “son Daniel Kingsland, and to his heirs ”—so far absolutely—but as this interest could not vest until his death, the testator, to provide against the consequences of a lapse, says: “In case my son Daniel should die without lawful issue,” I give the estate to my remaining children. These. words, we must hold, upon principle and authority, relate to the death of the testator; and upon that event during the life-time of Daniel Kmgsland, Jr., the latter became vested with the residuary estate, and was entitled to its possessions. This conclusion is required by the decisions of the courts in many similar cases. Embury v. Sheldon, 68 N. Y., 227; Livingston v. Greene, 52 id., 118. Indeed, the argument of the learned counsel for the appellant seems to concede that the words of the testator, taken in their legal sense, permit no other result, and his contention is that their meaning may be modified or changed by other provisions in the will, showing a different intent. No doubt the whole will is to be looked at as containing the intent of the testator, and one part may be made to give way to some other controling provision (Hoppock v. Tucker, 59 N. Y., 202); but here we find nothing to warrant a presumption-against the legal meaning of the words used in the residuary clause. The testator by his will first sets apart a. certain sum of money in the hands of his executors, the interest of which is to be paid to his son Thorn “during bis natural fife;” second, gives to his daughter Jane a sum of money, and a certain house and lot “for and during her natural fife;” third, the same amount of money, and a house and lot to his daughter Hannah “for and during her-natural life.” He provides also for his grandchildren an estate in prceenti in a certain farm, but in the event of their death he adds: “Then I give and bequeath the said farm to my son Daniel, his heirs and assigns.” The same language is used in reference to the above request to Thorn. If he dies without having a child living, or lawful issue of them, then and in such case” it goes to Daniel; in these• instances bestowing by fit words the use or interest upon the parents, and the capital upon the children or others, clearly limiting the property in succession. But when the - testator speaks in the residuary clause, he uses no such-words of qualification or limitation—no words indicating a' life-estate. He does not give the residue of bis estate to-his son Daniel “for and during his natural life, with remainder over to his children, if any,” but unto him and “to his heirs.” The difference in language indicates a. different purpose, and supports the interpretation already given to it.

It should also be observed that under the appellant’s construction, Daniel could take nothing unless a child was-born to him, for their contention is that by reason of his death, although after that of the testator, the whole residuary estate belonged to them, and he is not otherwise • directly provided for. We find nowhere in the will any evidence of a purpose to declare such result, nor any words restricting the right of Daniel, the son, to enjoy as his own, and dispose of as he thought proper, the entire residue of the estate of Daniel Kingsland the elder.

Did the testator have in view the death of Daniel, with a failure of issue, at any period, however remote ? Then he may be presumed to have considered that, while Daniel’s ■ death at some time was certain, the contingency of issue could be determined only by that death, and we may assume he would have provided for the care and custody, n' not the enjoyment, of the residuary estate during that time, which we now see was extended to nearly forty years. Yet no life-estate or other interest is given to any one.

An authority upon the language of one will furnishes - little aid towards the construction of another, and the cases • -cited by the appellant are no exception. Thus Douglas v. Chalmers (2 Ves. Jr., 501) is referred to in support of the words already quoted from the codicil indicating an under-.standing on the part of the testator that the residuary •devise was not absolute. In the case cited the devise of the residue was to a daughter, and afterwards, by codicil, "the testatrix in terms gave to that daughter a diamond ring which formed part of the residue. This specific devise was held to be inconsistent with an intention to make an absolute gift to the same person through the residuary clause, but intelligible and natural if the residue was given for life •only.

In the case at bar the codicil gives away from the resid"uary legatee, and indicates nothing but an intent on the testator’s part to bestow so much of his bounty upon an■other beneficiary. Nor do the cases cited upon the principal •question raise any doubt that, under the language of this will, the contingency of death was death of the legatee -during the life-time of the testator, and, as that did not •occur, the plaintiffs took nothing under the will.

• _ The judgment of the supreme court was upon that expo - sition, and should therefore be affirmed.

AH concur, except Raparlo, J., absent.  