
    Matter of the Estate of Stewart C. Boyce, Deceased.
    
      (Surrogate’s Court, Lewis County,
    
    
      January, 1902.)
    Legacy — Vesting Fails Where Futurity is Annexed to the Gift— The Blood Preferred to Strangers, in Construing a Will.
    The fifth clause of the will of a testator, after creating a trust for his son, who died, after him without ever having had issue and whose wife died before the husband, gave $2,000 to “ the wife of my said son ” in case he died without issue or descendants. The eighth clause directed that, if the son died without issue or descendants, the residuary estate, “ after payment therefrom of said legacy to his wife, if then living,” should go to collaterals. The will nowhere mentioned the wife’s name.
    Held, that the legacy never vested in the son’s wife and therefore her administrator was not entitled to it as against the remaindermen.
    That where a clause in a well was susceptible of two interpretations that one should be adopted which preferred persons of the blood to strangers.
    Stewart C. Boyce, a resident of Lowville, Lewis county, N. Y., died February 25, 1889, leaving Ms last will and testament, dated 31st March, 1887, and a codicil, dated February 23, 1889.
    The will nominated Fred 0. Sehraub and George Sherwood as executors, and the codicil named Olmsby O. Stowell as an additional executor thereof.
    Testator left surviving as his only next of kin and heir-at-law his son, Halley S. Boyce, aged about twenty-seven years.
    The son then had a wife named JbsepMne, who was some years older than Halley, and who died intestate about May 1, 1894, while being treated and eared for as a patient at the St. Lawrence State Hospital at Ogdensburg, leaving the said Halley surviving, but leaving no issue of her marriage to him. Thereafter and March 27, 1901, letters of administration upon her personal estate were granted by the Surrogate’s Court of Lewis county to one Lewis N. Northam, who is now acting thereunder. ,
    
      The said Halley S. Boyce died in. June, 1900, leaving no-widow, descendant or descendants him surviving.
    Halley was a beneficiary under his father’s will, and was given :a life estate in certain real estate situate in Lowville, which the executors were authorized to sell and convey upon the death of the son, unless sold prior to that event upon his request and with his consent, and the avails invested for his benefit.
    Upon the death of Halley the avails of such sale were to be divided among and paid to his descendant or descendants, if he left any surviving, if not, the proceeds of such sale were to pass into and form part of testator’s- residuary estate, to be disposed of as provided in the residuary clause of his will.
    By the 5th clause of his will, testator created a trust fund of-$6,000, to- be held by his executors, and the annual or semiannual income thereof to be by them paid over to Halley, the son, during his lifetime, and the sum of $500 of the principal to be paid to Halley when he became thirty-five years old; and the further sum of $500 when he became forty year© of age.
    That clause further provided that upon the death of the said Halley, if he should die leaving ¡a child, children or descendants, testator bequeathed the sum of $1,000 of that trust fund to the wife of his son, Halley, and the rest and residue thereof to the child, children or descendants of Halley; and that if the son died leaving no child, children or descendants him surviving, testator bequeathed the sum of $2,000 to the wife of his said son.
    The eighth or residuary clause of testator’s will is as follows:
    
      “ Eighth. All the rest, residue and remainder of my estate, including the proceeds and avails of the sale of my dwelling house on Elm street in said village of Lowville, should my said son, Halley S. Boyce die without leaving, issue or descendants as mentioned and provided in the fourth item of this instrument, together with the rest, residue and remainder of the fund or moneys set ¡apart for my said son, Halley S. Boyce, as mentioned and provided in the fifth item or danse of this instrument, should my said son Halley S. Boyce die leaving no issue or descendants, after payment therefrom of said legacy to his wife, if then living, I give, devise and bequeath as follows, to wit: to Pauline, the daughter of my brother, Horace Boyce, the sum of fifteen hundred dollars ($1,500) and to Martha, the daughter of my brother Horace, the sum of two thousand dollars, and the balance, rest, residue and remainder, unto my two brothers, John Boyce and Horace Boyce, and to my sister, Olive Becker, to be divided among and between them equally, share and share alike.”
    Ryel & Merrill, for executors.
    W. J. Fletcher, for administrator of Olive Becker, deceased, a x’esiduary legatee.
    C. S. Mereness, for administrator of Horace Boyce, deceased, a residuary legatee.
    Louis B. Dewey, for John K. Boyce, a residuary legatee.
    Breen & Breen, for administrator of Josephine Boyce, deceased.
   TubNbe, S.

— Several questions have arisen during the hearing of this matter, but the paramount one at present, is the construction of the fifth and eighth clauses of the will of Stewart ■0. Boyce, the testator herein.

Counsel for the representative of the estate of Josephine Boyce contend that upon the decease of testator, the bequest of the $2,000 mentioned in the fifth clause or item of the will in question, vested immediately and absolutely in Josephine as the wife of Halley S. Boyce, the son of testator, and that the administrator is now entitled to that sum.

This claim is controverted by counsel for the residuary legatees.

At tbe time of tbe execution of tbe will Josephine was tbe wife of Halley, tbe son, and both survived testator.

The intent of tbe testator is to- be ascertained from tbo language of bis last will and testament in its entirety, and not from fragmentary protions thereof, and effect is to be given, if possible, to all tbe provisions, and no clause is to be rejected or interest, intended to be given, sacrificed on tbe ground of repugnance, when it is 'possible to reconcile tbe provisions supposed to be in conflict. Taggart v. Murray, 53 N. Y. 233.

It is somewhat significant, that in tbe will in question, testator nowhere mentions by name tbe wife of bis son.

This suggests tbe inquiry, did be, at tbe time be made and executed that instrument, have in mind, or intend, as the object of bis bounty upon tbe decease of bis son, tbe then living wife of Halley, or such wife as tbe son should leave a,t bis death as his surviving widow? Tbe wife (Josephine) of Halley, the son, died in 1894, and Halley six years later, no issue of the marriage having been born to them, now if be bad again married and bad died leaving tbe second wife as bis widow, what would have been her status under tbe will in question ?

In tbe absence of ambiguity, reasonable certainty as to tbe beneficiary intended is an important factor in determining tbe validity of a bequest.

Testator’s will discloses that bis dominant purpose was to provide for bis son during bis lifetime, and any descendant or descendants be might leave, and that in default of such persons, relatives of bis blood should be the recipients of bis property, save a small legacy to a servant in bis family, and tbe conditional bequest to bis son’s wife.

To determine whether or not tbe contention of tbe learned counsel for tbe representative of tbe estate of Josephine is well predicated, reference must be bad to the will in question, ana tbe fifth and eighth clauses read and construed together, as may be done under well-settled rules of law.

The fifth clause relates to the trust fund for the benefit of tbe son, and contains this provision — ■“ .and upon the death of my said son Halley S. Boyce, I give and bequeath the sum of one thousand dollars of said principal so set apart 'and remaining at his death, unto the wife of my said son, and the rest, residue and remainder thereof I give and bequeath unto the child, children or descendants of my said son Halley, * * " but should my said son Halley S. Boyce die without leaving him surviving child, childi’en or descendants, then I give and bequeath the sum of two thousand dollars from said principal sum aforesaid, to the wife of my said son Halley S. Boyce.” The eighth or residuary clause is as follows: “AH the rest, residue and remainder of my estate, including the proceeds and ■avails of the sale of my dwelling house on Elm street in said village of Lowville, should my said son, Halley S. Boyce, die without leaving issue or descendants as mentioned and provided in the fourth item of this instrument, together with the rest, residue and remainder of the fund or money set apart for my said son, Halley S. Boyce, as mentioned and provided in the fifth item or clause of this instrument, should my said son, Halley S. Boyce, die leaving no issue or descendants, after payment therefrom of said legacy to his wife, if then living, I give, devise and bequeath as follows.”

The law is well settled that if futurity is annexed to the substance of the gift, the vesting is suspended. Clark v. Cammann, 160 N. Y. 315.

Another well-settled rule is, that where a clause of a will is capable of two interpretations, the one should be adopted which prefers the persons of testator’s blood to strangers. While, as a general rule, the law favors the vesting of legacies as soon as possible after the death of the testator, it is a question of intent; the will must be construed as made, and the intent of the tes.tator as therein made manifest must control. Bowditch v. Ayrault, 138 N. Y. 222.

The provisions relating to testator’s bequest to bis son’s wife are contained in tbe fifth and eighth, or residuary clause of the will in question, and they are dear and certain, and when read together, show beyond doubt or question, that survivorship of the wife upon the decease of Halley, the son, was a condition precedent, or a contingency which must happen before there could be any vesting of that legacy.

The intent of the testator is the paramount rule of construction, and if not violative of statutes or fundamental principles of law, it must prevail.

The intent and purpose of testator in the case at bar to limit, and to make the -bequest to Halley’s wife conditional upon her survivorship is clearly expressed in the eighth or residuary clause, and cannot be disregarded.

It is clear to me there was no vesting of that legacy, as the condition, or contingency upon which it would become vested, never did, and could not happen, because of the death of the son’s wife prior to his decease, and that the $2,000 bequest to her is to be regarded as part of the residuary funds of the estate, ■ and distributed accordingly.

It therefore follows that the contention of the representative of Josephine’s estate is not sustained.

Let findings and a decree be prepared accordingly.

Decreed accordingly.  