
    Louise Barnard and Gertrude Barnard, Resp,ts, v. Mary Barnard Crossman et al., Infants, by Walter N. Kernan, Guardian ad litem, App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 19, 1889.)
    
    1. Wills — Construction of.
    Testator devised certain property to his brother H. “for him to hold for tile benefit of his children, if he so elects.” H. was a subscribing witness, and a necessary one to prove the will. Held, that this bequest was intended to create a trust estate for the children of H., making it optional with H. to accept the office of trustee, and in case of his refusal leaving it with the court to appoint a proper trustee; that the words “ if he so elects ” refer only to the office of trustee and not to the subject matter of the devise.
    2. Same.
    If the clause in question were construed as intended to convey an absolute estate in H., it would be void under Revised Statutes, 8th ed., 2549, §50.
    
      Appeal from a judgment at special term entered in favor of the plaintiff.
    
      William, Kernan, for app’lts; Miller, Fincke & Brandagee, for resp’ts.
   Kennedy, J.

The controversy in this case arises as to the construction to be given the following clause in the will of one Harvey Barnard, Jr.

Third,. “ I do give, devise and bequeath to my brother, Henry Barnard, my one-fourth interest in the store number eighty-five Genesee street, Utica, and running through to Catharine street, for him to hold for the benefit of his children, if he so elects.’’

Henry Barnard, the devisee, signed the will as a witness, and was a necessary one to prove it, and on the probate thereof was sworn and examined as such.

If, by the above bequest an absolute estate in the lands devised was given to the said Henry, then by the provisions of the Revised Statutes, 8th ecL, p. 2549, section 50, the same is void. On the other hand, if by the same a trust estate was created for the children of said Henry, and he took the same in trust for them, it is valid, notwithstanding he was a witness to and one necessary to prove the will.

The language adopted by the testator is at least awkward, and perhaps leaves the question of his actual intent, resting that upon the words used alone, somewhat in doubt. If, however, from it a conclusion can be safely reached as to what such intent was, it is the duty of the court to adjudge the same, and see that it is carried out. On the other hand, if upon an examination of the instrument, taken as a whole, the intention of the testator appears clear, but its plain and definite purposes are endangered by inapt and inaccurate modes of expression, the court may, and it is its duty, to subordinate the language to the intention. It may reject words and limitations, supply or transpose themv to get at the correct meaning. Phillips et al., Ex'rs, v. Davies, 92 N. Y., 199.

It seems to us that any construction which may be given the clause in question must be somewhat strained, because of the obscurity thrown around the testator’s intent by the language itself.

He had one of two objects in view: either to vest an absolute estate in Henry, or to create a trust estate in and for the benefit of Henry’s children, there being three of these at the time the will was made who survived the testator and are now living. A fourth, born after that, was living at the time of the testator’s death, dying, however, soon after.

It was found by the learned court at special term that the first of these purposes existed. The contention on the part of the appellants, children of said Henry Barnard, on the other hand, is that the testator’s intent was to create a trust estate for them, and that the father was simply nominated a trustee, subject to his acceptance of the office.

A solution of this question will be found only in the conclusion whether the language “ if he shall so elect ” properly relates to the subject matter of the devise. Or whether it is to be construed as relating alone to the office of trustee.

A familiar rule of construction is that when the language of a written instrument is subject to two interpretations, the one sustaining and the other tending to defeat its provisions, that that shall be adopted which shall validate the writing.

If the construction given by the court below is correct, the effect is to entirely thwart the purpose of the testator and to deprive both Henry and his children of the property, and as to it to adjudge that he died intestate. In construing an instrument of this nature, partial intestacy, if possible, should be avoided Vernon v. Vernon, 53 N. Y., 357.

It may be fairly assumed that both the testator and Henry knew the law governing the question, and that the former, if he did not understand that he was making a valid bequest, and creating an estate alone for the benefit of Henry’s children, would not have requested him to become a subscribing witness to his will, or on the other hand that Henry would have intentionally defeated the purpose of the testator in doing this. It may be further suggested in this connection if the trial court was corrfeet in finding that the devise to Henry was absolute, subject to his election to convert it into a trust estate for his children, that at the time the will was executed, by becoming the subscribing witness, he thereby declared his election to treat the trust estate as a trust estate for the beneficiaries named

If it be held that the words referred to relate to the estate, then they become superfluous, since without them Henry could of his own volition at any time have converted it into a trust estate for his children. The language adopted does not amount even to a request by the testator that Henry should so treat the subject of the devise.

On the other hand, if it is held that the words “ if he so elect” refer to the office of trustee, we shall find meaning in the expres-' sion, and by so doing serve to accomplish one of the apparent purposes the testator had in view, and. thus avoid the embarassment and injustice which would follow a finding that as to this p^rt of the estate the decedent dies intestate.

Nor can we see that this construction is forced or unnatural. That the testator meant to dispose of this part of his estate for the benefit of Henry or his children, is apparent. Each was a proper object of his bounty, and if we hold that the estate was in trust, we shall carry out one design he had in view. On the other hand a different holding will serve to wholly defeat his object.

Without the added words “if he shall so elect,” a trust estate was created for the children of Henry, he being appointed trustee of the same. Suppose the sentence is made to read, as it may be without doing violence to the expression, “ if he elects to act as trustee,” and he refused the office, such refusal would not defeat the purposes of the testator, or destroy the trust. The law will not allow a trust to fail for want of a trustee. Perry on Trusts, 3d ed., section 38, and cases cited.

We are therefore disposed to hold,that it was the intent and purpose of the testator to create, and thliFhfe did create a trust estate for the children of Henry; that he nominated him as trustee, making it optional with him whether he accepted the office or not, but in case of his refusal to do so, leaving it with the court to provide a proper trustee.

This construction, while it tends to carry out the purpose of the testator and prevents an absolute failure of the devise, at the same time serves to do justice to the contemplated beneficiaries.

We have examined carefully the many authorities cited by the learned counsel for the plaintiff, and find in them general rules for construing wills, but nothing tending especially to elucidate the question in hand, and are, therefore, left to give this clause in the will such construction as to us seems best calculated to meet the intent of the testator, and to accomplish the purpose which it appears from the language used, he had in view.

It follows that a new trial should be granted.

Hew trial granted, with costs to abide the event.

Hardin, P. J and Martin, J., concur.  