
    Orange County.
    Hon. ROSWELL C. COLEMAN, Surrogate.
    May, 1890.
    Matter of Mapes.
    
      In the matter of the estate of George H. Mapes, deceased.
    
    Where by one clause of his will a testator gives to one of his sons the use of a specified sum of money during his life, the principal upon the death of the son to be paid to his children, and in another clause there is bequeathed to a daughter “ any legacy herein given which may from any cause lapse,” Held, that at the death of testator, the daughter took a contingent interest which, she having died before the termination of the life estate, at the death of the life beneficiary vested absolutely in her representatives.
    In the matter of the accounting of the executors of the will of George H. Mapes, deceased.
    B. R. Champion, for executor of Sarah J. Mapes, deceased.
    
    
      W. J. Mills, for executor of John S. Mapes, deceased.
    
    The questions in this case involve the construction of the second and third paragraphs of the will of George H. Mapes, deceased, which read as follows : Second: I give and bequeath to my said son John S. the use or interest of $5,000, for and during the term of his natural life, to be paid to him by my executors hereinafter named, in at least quarterly payments .....and at the death of my son John S., I give and bequeath the said sum of $5,000, to his child or children, him surviving, share and share alike; my said executors, or survivors of them, to keep said principal sum properly invested and to dispose of interest and principal as aforesaid.....”
    “ Third: All the rest, residue and remainder of my estate of whatever character or description, as well as any legacy herein given which may from any cause lapse, I give, devise and bequeath to my daughter Sarah Jane Mapes.”
    By the codicil to his will the testator altered the amount of the legacy for the benefit of his son from $5,000 l,o $4,000.
    The testator died on June 23, 1884, his daughter, Sarah J. Mapes, and his son John S. Mapes, surviving him. Sarah J. Mapes died July 24,1888, leaving a last will and testament in which a legacy of $4,000 was given to the American Bible Society, and another of $4,000, to the Ladies Home Society of Orange County, being the greater part of her estate.
    John S. Mapes died without issue on January 8, 1889.
    It was contended by collateral relatives of George H. Mapes that, Sarah J. Mapes having died before her brother, her contingent interest in the legacy lapsed and that the $4,000 fund should be paid to them. The executors of Sarah J. Mapes and the parties interested in her estate disputed this and claimed that the fund belonged to her estate.
   The Surrogate.

The testamentary purpose of the testator is plain. He had only two persons to provide for—a son and a daughter. First, he made certain provisions for the son, including the gift of the use of the $4,000. Then he gave the rest of the estate to his daughter. Evidently he considered the $4,000 a part of his son’s share, for, although he was only given the use of it, the testator provided that it should go at the son’s death to the children. But he also evidently intended whatever of his estate was not received by his son, or his son’s children, should be received by his daughter. This intention I think appears from the fact that he not only gave her “ all the rest, residue and remainder,” but as well, any legacies herein given which may for any cause lapse.” The testator certainly did not intend to die intestate as to any part of his estate, and this should have its proper influence in determining the construction of the will.

It has happened that the testator’s son, John, has died without leaving children surviving him to take the principal of the $4,000 given them. No mention is made in the will what shall become of the $4,000 in this event unless we can find it in the latter clause, where all the rest, etc., is given the daughter. And I think it is proper to so conclude, for the testator there says: “ As well, any legacy herein given which may for any cause lapse, and this is the only case where a lapse could have happened except only one other, the death of the son before the testator, which it is not probable he contemplated.

This being so, it results that the daughter or her representatives are entitled to the $4,000, unless we find in the will that the testator intended that his daughter should only take if she herself survived her brother. If this was his intention, then this legacy does not pass under her will, but goes to the next of kin of the testator by statute, he having failed by his will to provide what should be done with it on the happening of this event.

I have said that the daughter or her representatives take unless we find in the will that the daughter must survive her brother. That is, the will may say so in so many words, or the will may say so by force of the construction given by the courts to the words used, they not being sufficiently plain of themselves. If, however, the will itself shows a clear intention that the legatee shall take absolutely on the happening of the contingency, whether he survive the contingency or not there is no principle of law which will prevent the taking. In those cases where the courts have held that the legatee must survive the contingency upon which the legacy depended, the decisions rest upon a rule of construction and not upon a statute or principle of law.

It may be said that it is more natural to suppose that the testator would prefer to have his collaterals receive it under the statute, his descendants having failed to live to receive it, rather than have it go to strangers under his daughter’s will. It is, however, evident that he did not concern himself in his will about what should ultimately become of - any of the property given by him to her, for no mention is made by him what direction any of it is to take at her death. His gifts to her were clearly intended to be absolute and uncoupled with any condition, except the single one, regarding the $4,000, that her brother die without leaving children him surviving.

I, therefore, conclude that Sarah Jane Mapes, at the death of the testator, took a contingent remainder in the $4,000 legacy which then vested in her as a right according to its character and became absolute at the death of John S. Mapes.

The decree should direct that the executors of George Mapes, deceased, pay over the fund to the executors of Sarah J. Mapes, deceased.  