
    Maggie Coon, Plaintiff, v. Homer F. Coon et al., Defendants.
    (Supreme Court, Columbia Trial Term,
    October, 1902.)
    Remainder — Vesting — Devise to be construed, if possible, so as to sustain it. ■
    The will of a testatrix, after giving a life estate in her farm to her daughter Eunice, gave the remainder upon Eunice’s death to her three sons, but further provided that if any of them died without legal heirs the farm should pass to the sons “ who are living ”, A son of Eunice died after her without issue and disposed of his share by will.
    ■ Held, that he had a right to do so, as the remainder vested absolutely upon the death of the life tenant, Eunice, in her three sons.
    Where a testamentary provision is susceptible of two constructions, a construction which would illegally suspend the power of alienation should be rejected.
    This is an action to partition a farm in Ancram, H. Y., which was owned by Catharine Pinkie at the time of her death in-1879. She left a will, which after disposing of her personal property, and making provision for the maintenance of her grandson' Silas Wilkinson, in case of his sickness, contained the following paragraph, the construction of which is involved in this action: “I give and bequeath to my daughter Eunice, wife
    of Leonard Goon, the use and occupation of my farm of land on which I "now reside for and during the term of her natural life subject to the maintenance and support of Silas Wilkinson as directed in item second and after the death of my daughter Eunice then I give and devise the said farm of land to the three sons of my daughter Eunice, viz., Silas Wilkinson, Homer F. Coon, and Theodore L. Coon to their heirs and assigns forever. I further direct in case of either or any of the above named sons of my said daughter Eunice should die without legal heirs then the said farm of land shall be given to either or to those who .are living to their heirs and assigns forever.”
    Eunice Coon the life tenant died in 1900, survived by her three sons above-mentioned. In 1901, Theodore L. Goon, one of these sons died without descendants, leaving a will whereby he devised his interest in the farm in question to the plaintiff herein, and to the defendant Hay McMann.
    The defendants, Homer F. Coon and Silas Wilkinson, contend that under the last clause of the will of Catharine Finkle, above set forth, the said Theodore L. Coon having died without descendants, the title to the onedhird interest after Theodore’s death passed to said Homer F. Coon and Silas Wilkinson, and did not pass under the will of Theodore, to the plaintiff and the said May McMann.
    J. D. Bell, for plaintiff.
    Frank Eno, for defendant Homer F. Coon.
    Edward F. McCormick, for defendant Silas Wilkinson.
    Claudius Rockefeller, guardian ad litem for infant defendant May McMann.
   Cochrane, J.

It is a well established general rule of construction that where there is a devise to one person in fee and in case of his death to another, the contingency referred to is the death of the first named devisee during the lifetime of the testator, and that if such devisee survives the testator he takes an absolute fee.” Matter of Cramer, 170 N. Y. 275.

The defendants Homer F. Coon and Silas Wilkinson contend that this rule has no application here, because of the existence of the prior life estate of Eunice Coon.

In Matter of Denton, 137 N. Y. 433, it was said, “ this rule has only a limited operation, and cannot be extended to a case where a point of time is mentioned other than the death of the testator, to which the contingency can be referred, or to a case where a life estate intervenes, or where the context of the will contains language evincing a contrary intent.”

In Matter of Baer, 147 N. Y. 354, it was said: “ The rule is never permitted to operate in a case where, as here, a point of time for distribution is mentioned other than the death of the testator, or where a life estate intervenes, or where the context of the will contains language indicating a contrary intent.”

These cases however, and others cited, do not support the contention that the contingency of death without issue refers to a death at any time, but they hold that such contingency should be referred to the death of the life tenant rather than to the death of the testator.

Applying the principles above-mentioned therefore to the present case, I think the contingency of death without issue of •any of the three sons of Eunice Coon, should be referred to her death, and not to the death of the testatrix. The time of distribution or division of the farm in question is clearly fixed as being the occasion of the death of the life tenant Eunice Coon. After giving her the use for life of the farm, the testatrix continues as follows: “And after the death of my daughter Eunice, then (i. e., at that time) I give and devise the said farm of land to the three sons of my daughter Eunice * * * their heirs •and assigns forever.” And the death without issue of any of the sons must be referred to this latter event.

It was stated in Matter of Denton, supra, “ The contingency plainly refers to the time when each part of the residue becomes distributable; the life estate of the wife and daughter intervenes before the event can be finally determined upon which the ■contingency depends.”

In Fowler v. Ingersoll, 127 N. Y. 478, the court said that in the case of a life estate, “ The presumption would be that the words of contingency referred to the event which would determine the life estate. The rule is so stated in Jarman on Wills, vol. 2 (5th ed.), p. 753.”

In Matter of New York, Lackawanna & Western Railway Co., 105 N. Y. 92, the court in explaining the reason for the rule said: “ The reason assigned for this construction has been that as death is a certain event, and the time only is contingent, the words of contingency in a devise of this description can only be satisfied by referring them to a death before some particular period, and no other being mentioned, the time referred to must be presumed to have been the testator’s own death.”

In this case another period is mentioned, viz., the death of the life tenant. All provisions of the will are therefore fully harmonized, and the legal provisions invoked by both sides to this controversy are made fully applicable by a construction referring the contingency of Theodore’s death "without issue, to the event of the termination of the life estate of his mother, Eunice Ooon.

There is nothing in the context of this will to indicate an intention on the part of the testatrix, different from what is imported by the legal meaning of the words used. The fact that at the time this will was made, the testatrix was an aged woman and that Theodore L. Ooon was only eight or ten years of age, is a strong circumstance tending to show that the testatrix did not intend that the contingency of Theodore’s death without issue should be limited to a time prior to her own death, but it has no significance in a case like this, where an intervening life estate is created, on the determination of which the contingency above alluded to should be referred.

But there is another cogent reason why this will should receive such a construction. The effect of the interpretation contended for by the defendants Homer F. Coon and Silas Wilkinson, would be to invalidate in part, the will. If the title to the real estate did not vest absolutely on the death of Eunice, in her three sons, the absolute power of alienation was manifestly suspended for more than two lives, namely the life of Eunice Coon and of two of her sons. Heal Property Law (L. 1896, ch. 541), sections 32, 33. And where a clause in a will is susceptible of two constructions, one of which will render it valid and the other invalid, the former will be adopted. Roe v. Vingut, 117 N. Y. 204; Crozier v. Bray, 120 id. 366; Matteson v. Palser, 56 App. Div. 95.

It follows that Theodore L. Ooon, having survived the life tenancy of his mother, became vested in fee with an undivided one-third of the farm in question, which passed under his will to the plaintiff, and to the defendant May McMann.

Judgment accordingly.  