
    Francis Kiah, Appellant, v. Rosa Grenier, Administratrix, et al., Respondents.
    (Argued January 23, 1874;
    decided March 24, 1874.)
    Clauses of a will declared invalid may be resorted to for the purpose of ascertaining the meaning of the testator in the use of terms in the residue.
    C. devised and bequeathed his property to trustees, in trust, “to be used and held ” for L. during life. After the decease of L., in case he leaves “heirs,” the property to go to said “ heir or heirs” when they become of age. In case he die leaving no “ heirs or widow,” then it shall go to R. In case L. dies leaving “ a widow, heir or heirs,” they to take for life, and after death of the heirs, the property to belong absolutely to R. In an action for a construction of the will the court below decided the limitations over void, save the one to R., in case of the death of L., leaving no “ heirs or widow; ” no appeal was taken from that part of the judgment declaring the clauses referred to invalid. Held, that by the term “ heirs” as used, the testator meant heirs of the body of L. and not heirs at law generally, and that there was a valid limitation over to R. in case of the death of L., without leaving a widow or issue. Also, held, that the trust for the benefit of L., was valid.
    Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment, entered upon the decision of the Court at Special Term.
    This was an action to obtain a construction of the last will and testament of Alexander G. Cadier, deceased. The following are the main provisions of the will:
    “ Second. I devise and bequeath all the rest of my property, both personal and real, to John F. Rosseel and George D. Seymour, of Ogdensburg, in trust for my adopted son, Louis G. Cadier, to be used and held for his support, education, improvement and benefit, but not to be sold or conveyed.
    “ I further devise, bequeath and direct, that after the decease of my said adopted son, in case he shall leave any heirs, that then my property both personal and real, go to the said heir or heirs absolutely when they shall become of age; and in case the said Louis G. Cadier shall die, leaving no heirs or widow, then all my property that remains, both personal and real, I devise and bequeath to my said niece, Eosa Grenier.
    “And in case my said adopted son shall die, leaving a widow, heir or heirs, then the said widow, heir or heirs, shall have the use, rents and profits of all my property during the time she remains the widow of my said adopted son, and while the heir or heirs shall live; and after her decease or after she shall again marry, and after the decease of the heirs of my adopted son, if any, all my property both personal and real, shall belong absolutely to my said niece Eosa Grenier, or her heirs, if any.”
    The testator left no widow or lawful issue. He left brothers and sisters, of whom plaintiff is one, and an illegitimate son, the Louis G. Cadier mentioned in the will. The mother of the latter, Mrs. Jerby, was living; she had, also, other children. The executors named in the will renounced, and defendants Eosa Grenier and Merriam were appointed administratrix and administrator with the will annexed. The Special Term held as follows, among other things:
    “ Second.' That the provision in said will as follows, to wit: I devise and bequeath all the rest of my property, both personal and real, to John F. Eosseel and George D. Seymour, of Ogdensburg, in trust for my adopted son Louis G. Cadier, to be used and held for his support, education, improvement and benefit, but not to be sold or conveyed,’ is valid, and creates a trust under which the trustees were empowered to receive the rents and profits of the property and apply them “to the use of said Louis G. Cadier during his life.
    
      “ Third. That the clause or provision of said will, in the folfowing words, to wit: ‘ I further devise, bequeath and direct that after the decease of my said adopted son, in case he shall leave any heirs, that then my property, both personal and real, go to the said heir or heirs absolutely when they shall become of age,’ is illegal and void, being an unlawful suspension of the right and power of alienation.
    “ Fourth. That the clause or provision of said will in the following words, to wit: 1 And in case the said Louis G. Cadier shall die, leaving no heirs or widow, then all my property that remains, both personal and real, I devise and bequeath to my said niece Eosa Grenier,’ is valid; under which said Eosa takes a contingent remainder in fee — a remainder in fee dependent upon the death of Louis G. Gadier without widow or heir of his body.
    “ Fifth. That the clause of said will in the following words, to wit: ‘ And in case my said adopted son shall die, leaving a widow, heir or heirs, then the said widow, heir or heirs, shall have the use, rents and profits of all my property during the time she remains the widow of my said adopted son, and while the heir or heirs shall live, and after her decease or after she shall again marry; and after the decease of the heirs of my adopted son, if any, all my property, both personal and real, shall belong absolutely to my said niece Eosa Grenier, or her heirs, if any,’ is void; being an illegal restraint upon and suspension of the right and power of alienation.
    “ ¡Sixth. That in case of the death of said Louis G. Cadier, leaving a widow or heir of his body, then and in that event, the said Alexander G. Cadier will be deemed to have died intestate as to the property and estate remaining and held in trust at the decease of said Louis G. Cadier; and the same will pass and belong to the heirs and next of kin of said testator Alexander G. Cadier, under the statute of descent and distribution.”
    Jndgment was entered in accordance with these holdings.
    Plaintiff appealed from that part of the judgment deciding that the will created a valid trust and that the limitation over to Eosa Grenier, above stated, was valid, and that the word heirs meant heirs of the body. Defendants did not appeal to this court.
    
      Edward C. James for the appellant.
    It is immaterial whether the provisions of the will in respect to Cadier create an express. trust or merely a power in trust. (1 R. S., 730, §§ 63, 65; 727, § 47; Campbell v. Foster, 35 N Y., 370.) The clauses declared invalid could be resorted to for the purpose of ascertaining the meaning of the testator in the use of terms in the residue. (Van Nostrand v. Moore, 52 N. Y., 12; Bundy v. Bundy, 38 id., 421.) A will is not to he construed so as to disinherit the heirs from doubtful terms, but requires unequivocal language. (Areson v. Areson, 3 Den., 458, 461; Soott v. Guernsey, 48 N. Y., 106.) The word heirs should receive its plain legal signification. (4 Kent Com., 125, and cases cited; Wells v. Smith, 2 Edwd. Ch., 77, 85, 86.)
    
      Charles G. Myers for the respondents.
    Plaintiff, as one of the heirs at law merely, cannot maintain this action. (Orderdonk v. Mott, 34 Barb., 106; Woodruff v. Cook, 47. id., 310; Bowers v. Smith, 10 Paige, 194, 200,. 203.) The trustees named in the will took an express trust coupled with an interest. (1 R. S., 728, § 55, sub. 3; Campbell v. Low, 9 Barb., 585 ; Bundy v. Bundy, 47 id., 135 ; S. C., 38 N. Y., 410.) The trust estate terminated with the life of Cadier. (1 R. S., 730, § 67; 9 Barb., 516.) The provisions of the will as to the trust are not affected by its further provisions even if they should be held void. (Maurice v. Maurice, 43 N. Y., 304, 305; Woodruff v. Cook, 47 Barb., 304.) The word heir as used means lineal descendants only. (1 R. S., 730, § 67; 9 Barb., 304; Bundy v. Bundy, 47 id., 136, 142; S. C., 38 N. Y., 410; Scott v. Gurnsey, 48 id., 106.)
   Rapallo, J.

In the form in which this case is presented, the entire will of Alexander G. Cadier is not before us for construction.

The only appellant is Francis Kiah, the plaintiff, and his appeal brings up for review a part only of the questions which arise upon the will. It extends only to those portions of the judgment of the Supreme Court which are specified in his exceptions.

The main point involved in this appeal lies between the plaintiff and the defendant Rosa Grenier. By the terms of the will, a remainder in fee in all the property real and personal of the testator is limited to her, upon the death of the testator’s natural son Louis G-. Cadier, “ in case he shall leave no heirs or widow.” The Supreme Court held, that from the context the term “ heirs,” as here used, should be construed to mean heirs of his body, and that consequently if Louis should die without leaving any widow or heirs of his body, Rosa Grenier would take, but that otherwise, the property would descend to the heirs at law of the testator, of whom the plaintiff, his brother, is one. The effort on the part of the plaintiff is to obtain such a construction of the will, as will either render it wholly void or will defeat the remainder to Rosa Grenier in case Louis G. Cadier shall leave any heirs at law him surviving. If he should die without lineal descendants, his mother Mrs. Jerby, or in case she should then he dead, her children or their descendants, or in default of these the collateral relations of Mrs. Jerby would be capable of inheriting from him as if he had been legitimate. (1 R. S., 753, § 14.) Consequently, the prospect of Louis G. dying without heirs is much more remote than that of his dying without heirs of his body. The court below held, that the limitation over to the heirs of Louis G. Cadier was void, and that consequently, unless the contingency should occur, _upon which Rosa Grenier is entitled to take, upon the decease of Louis, the heirs at law of the testator will succeed, and be preferred to the children of Louis should he leave any. As no appeal is taken by any party from that portion of the judgment, it must, for present purposes, be treated as acquiesced in by the parties to this action. If Louis G. Cadier should leave descendants, they would still .have the right to litigate the question, and we therefore express no opinion upon it. The limitation over to Rosa Grenier, in case of the death of the widow and heirs of Louis, was also held void, and from this part of the judgment no appeal is taken. But these clauses, though declared invalid in law, may be considered for the purpose of ascertaining the meaning of the testator in the use of the term “ heirs,” and the language of the will, iúclnding these clauses, does, we think, justify the conclusion that, by the term “ heirs,” in the connection in. which it is .used, the testator meant the lineal descendants of his natural son, and not his heirs at law generally. He declares that the property shall go> to the heir or heirs of Louis “ when they shall become of age,” and that in case he- shall die “ leaving, no- heirs or widow,” that it shall go to Eosa Grenier. That in case he leaves a “ widow, heir or heirs,” they shall take for life, and that after the decease or marriage of the widow, and after the decease of the “ heirs ” of Louis, the property shall belong absolutely to Eosa Grenier. This language and these limitations are very inappropriate and extraordinary, if by the term “ heirs,” collateral as well as lineal heirs were intended, though they might be sensible if used to designate the children of Louis G.

We therefore think that the General Term was correct in its construction of the term “heirs.”

The other branches of the appeal present no serious questions. There was clearly a valid trust for the benefit of Louis during his life. The property was directed to be “ used ” as well as held by the trustees for his support, education and benefit during his life. This created an active trust. There can be no valid objection to the limitation over to Eosa Grenier in the case of the death of Louis without leaving any widow or issue. This provision cannot be affected by the other limitations which, if valid, could only become operative in ease Louis should leave a widow or issue.

The judgment should be affirmed, with costs to be paid by the appellant.

All concur.

Judgment affirmed.  