
    In the Matter of the Judicial Settlement of the Accounts of William L. Denton, Ex’r.
    
    
      (Court of Appeals,
    
    
      Filed March 14, 1893.)
    
    1. Will — Construction of.
    Testator, by his will, after providing a fund, the income of which was to he paid to his wife and daughter, then unmarried, during their lives, gave the residue of his estate to his three sons and a married daughter, and provided that in the case of the death of either leaving issue before e ther of the different parts could be divided, such issue should take the parent’s share; “if without issue, then the survivors to take.” One of the sons died before the widow and daughter, leaving no issue, his children having died before him. Held, that his share went to the survivors, and no part of it to his widow.
    
      2. Appeal — Costs.
    On the modification of a surrogate’s decree, the general term has discretionary power to determine as to whether the appellant here should he allowed costs in the surrogate's court, and this court has no discretion to review the exercise of its discretion.
    Appeal from judgment of the supreme court, general 'term, second department, modifying decree of surrogate of Queens county.
    
      John Fleming, for app’lt; Henry A. Monfort, for resp’t.
    
      
       Affirming 34 St. Hep., 330.
    
   Maynard, J.

This appeal involves the construction of the ninth or residuary clause of the will of Amos Denton, who died in 1857, and who left surviving him a widow, three sons, a married and an unmarried daughter.

By the clause in question, he gave the residue of his estate to the three sons and the married daughter, to be divided equally between them, and added this paragraph, which has given rise to the present controversy: “ In case of the death of either of them, leaving issue, before either of the different parts thereof, as hereinbefore mentioned, can be divided, then such issue to take the share or part the parent would have been entitled „to if living; if without issue, then the survivors to take.” “ The different parts ” here intended, manifestly have reference exclusively to the residuary estate, and the appropriateness of the term is at once apparent, if we consider the other provisions of the instrument

Under the scheme of the will the testator evidently contemplated a residue divisible into at least three parts, and distributable at three different periods of time. If the personal estate was sufficient to pay debts and expenses and a legacy of $500 to one of the sons and to create a fund of $8,500 for the use of his wife and unmarried daughter, the remainder would be at once divisible among the residuary legatees. If the wife died before the unmarried daughter, $4,000 and the proceeds of the sale of the homestead would be released, and fall into the residuary estate, and become subject to distribution; and upon the death of the unmarried daughter, if she survived her mother, there would be the further sum of $4,500 to be finally distributed. The order of distribution, and the sums available at different times for that purpose, might be varied in the event of the wife surviving the daughter, but the ultimate disposition of the estate would not be materially changed. But when either one of these parts was capable of division, it might happen that one or more of the legatees would not be living, and the occurrence of such a contingency twas specially provided for. It is clear that the testator intended ico limit the distribution of his residuary estate to the issue of his own blood, and in the clause which he added, and which we have quoted above, he has expressed such intention in language so plain that we think it is susceptible of no other reasonable construction. If at the time any part of the residue could be divided there was the issue of a deceased legatee surviving, such issue would take the share given to such legatee, otherwise the surviving legatees would take the whole of such part

One of the sons, Elias B. Denton, died in 1878, without leaving any issue surviving him. The appellant here is his widow, to. whom he gave by will his entire estate, and who insists that, as his legatee, she is entitled to one-fourth of the residuary estate created by his father’s will.

The unmarried daughter died in 1879, and the widow of the testator in 1887. The executor instituted proceedings for a final accounting and distribution of the estate after her death, upon which it appeared that the property remaining for distribution consisted of the proceeds of the sale of the homestead, and the principal and accrued interest of the fund of $7,500, which remained for the use of the widow after the death of the unmarried daughter.

Elias B. Denton had six children born to him, all of whom pre-deceased him, and four of whom died in the lifetime of the. testator, and when the will was executed he had no children living.

The surrogate held that the residuary legacy to Elias B. was not defeated by his death without issue surviving; that the contingency upon which his estate depended was the birth of issue, and not its survivorship, and that the condition attached to his legacy was satisfied by the proof of the existence of issue in his lifetime; in other words, that the phrase “ without leaving issue,” was equivalent, in the connection in which it was qsed, to the phrase “without having had issue.” He also held, that as the son survived the period when one of the parts of the residue might have been divided, the contingency ha*d not occurred upon the happening of which his share of the other parts of the residue was given to the surviving brothers and sister. The general term, by a divided court, reversed the decree of the surrogate, and excluded the representative of the deceased son from all participation in the distribution of the residuary estate.

The appellant’s counsel invokes the rule of construction that when there is a bequest to one person absolutely, and, in case of his death without issue to another, the contingency referred to is a death in the lifetime of the testator. But 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. Vanderzee v. Slingerland, 103 N. Y., 47; 2 St. Rep., 732; Matter of N. Y., L. & W. R. R. Co., 105 N. Y., 89; 6 St. Rep., 851; Fowler v. Ingersoll, 127 N.Y., 472; 40 St. Rep., 206; Mead v. Maben, 131 N.Y., 255; 43 St. Rep., 167; Mullarky v. Sullivan, 136 N. Y., 227; 49 St. Rep., 333. All the circumstances which preclude the application of the rule exist in the present case. 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; and it is evident from the context that it was not his own death which the testator had in mind when he made the survivorship of the residuary legatee a condition, which must be shown to exist before he can be admitted to share in the distribution of the fund.

It would also be subversive of the manifest purpose of the testator to hold that if the legatee survived the time when but a single part of the residue could be divided, his right to share in the distribution of the subsequent parts became vested and indefeasible.

The term “ either of the parts ” is here used distributively, and is equivalent in meaning to each or every one of the parts. The condition is annexed to each part, and the testamentary plan, which seeks to preserve the estate in the family of the testator, is ‘thus rendered consistent in scope, and rational in application. For the same reason we cannot adopt the suggestion that the contingency in this case of death “ without issue ” is eliminated because it appears that Elias B. Denton had issue in his lifetime. The last clause of the provision in the residuary paragraph, if without issue, then the survivors to take, ” is an elliptical form of expression, and is antithetic to the first clause, which relates to the time of the death of the son, and if fully written out would be' a declaration to the effect that “ if either of my said children should die before either part of the residue of my estate can be divided, without leaving issue, then the surviving legatees shall take the share or portion of such part which the deceased legatee would have been entitled to if living.”

Upon the modification of the surrogate’s decree, the general term had discretionary power to determine whether the appellant here should be allowed costs in the surrogate’s court, and we have no jurisdiction to review the exercise of its discretion.

The judgment appealed from must be affirmed, with costs to both parties to be paid out of the estate.

All concur.  