
    Fred Minges and Owen Minges, Appellants, Impleaded with Mary E. Gross, v. Addison G. Mathewson, Individually and as Executor, etc., of Jane Eliza Mathewson, Deceased, Respondent.
    
      Will—a gift of an “undivided one-fourth pa/rt of all the property” with power to dispose of the principal, followed by a gift over of what may remain on her death—it gives a life estate with power of disposition during life.
    
    A will providing: “First, I give, devise and bequeath, unto my daughter, Jane Eliza Mathewson, * * * the undivided one-fourth part of all the property and estate, real and personal, of which I shall died seized or possessed; the rents and profits, use, interest and income thereof, and on her death whatever may remain of said property, principal, interest, or income unexpended by the said Jane Eliza, I give, devise and bequeath to the children of her body,
    . alive at, the time of her decease, in equal shares; * * * and it is my will that the said Jane Eliza shall use, dispose of or expend so much of the said property and estate, real or personal, use, income and interest as she may choose during her natural life,” does not vest in the said Jane Eliza Mathewson" the absolute ownership of the property disposed of by such clause, but gives her a life estate therein, with the privilege of disposing during her life of the principal as well as the income, and at her death the portion of the property remaining undisposed of by her will pass to her children.
    Appeal by the plaintiffs, Fred Hinges and Owen Hinges, from a judgment of the Supreme Court in favor of the defendant, entered in ;the office of the clerk of .the county of, Erie on the 9th day of April, 1901, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining the defendant’s demurrer to the plaintiffs’ complaint.
    
      Jesse L. Grantier, for the appellants.
    
      Delbert A. Adams, for the respondent.
   Hiscook, J.:

The plaintiffs brought this action seeking to have the provisions of the will of one Jane Eliza Mathewson adjudged invalid and inoperative so far as they attempted to dispose of certain property received by said testator under and by virtue of the will of her father, one Gibbs, and to compel the defendant executor to account for such property after payment of debts, etc. The said plaintiffs are the grandchildren of said testator and children of a deceased daughter. Defendant’s demurrer to the sufficiency- of the complaint both in the court below and- upon this appeal has involved the construction of a certain clause in the will of said Gibbs, the question being whether said provision gave to defendant’s testatrix certain property, absolutely or only a life interest therein, with the power of disposing during life of. the principal also.

The clause in question, so far as material, reads: “'First. I give, devise and bequeath unto my daughter, Jane Eliza Mathewson, * * * the undivided one-fourth part of all the property and estate, real and-personal;-of .-which I shall die seized or-possessed; the rents and profits, use, interest and income thereof, and on her death whatever may remain of said property, principal, interest, or income unexpended by the said Jane Eliza, I give, devise and bequeath to the children of her body, alive at the time of her decease, in equal shares; * * * and it is my will that the said Jane Eliza shall use, dispose of ■ or expend so .much of the said property and ¿estate, ■real-or personal, use, income and interest as- she may choose during her natural life.” ■ .

; The respondent contends, and the learned‘justice at Special Term has held, that under this provision defendant’s testator took absolutely an undivided one-fourth part of said Gibbs’ estate; that no remainder over Or- interest was created for the benefit of these plaintiffs, and that, therefore, they are entitled to no relief under their-complaint in this action. ■ •

Tliis. conclusion has been reached by holding that the first sentence quoted,' namely, “ I "give,"devise and - bequeath unto my daughter, Jane Eliza Mathewson, * *' * the undivided one-fóurth part of all the property and estate, real and personal, of which I shall die seized or possessed,” is to be considered and treated as standing by itself and as a completed expression of the testator’s intention towards his' daughter, .and as a full and perfected disposition of the property in said clause referred to.

Proceeding upon this basis and assumption, it has been contended by respondent and held that the following sentences and provisions in the clause quoted from are insufficient to modify, restrict or cut down the absolute devise thus expressed in the sentence last quoted; are insufficient to create any limitation over of such, absolute estate for the benefit of these plaintiffs.

Conceding that upon such assumption such conclusions would follow, we are unable to reach said conclusions because we are unwilling to make such assumption. We have not deemed it necessary in this case to resort to any technical or obscure rules of construction by which to interpret the intention of the testator as expressed in the will in question. It has been necessary only and is safer to keep in mind certain general broad principles which amply cover and provide for such a case.

It is the primary rule of construction to which all others must bend that the intention of the testator must govern. No positive rule of ready application to every case can be laid down, but each will depend upon a consideration of all the material provisions of the will to be construed, etc. (Delaney v. Aulen, 84 N. Y. 16.)

Words are to receive the natural sense in which they are used and such meaning as it appears from judicial inspection is to prevail over punctuation and capitals, which are to be regarded as such uncertain aids in the interpretation of written instruments as to be resorted to only when all other means fail. (Kinkele v. Wilson, 151 N. Y. 277.)

If the construction urged by respondent is applied of treating the one sentence quoted as a completed expression of the testator’s intention, we are not only compelled to disregard the remaining provisions of the clause in question, but they become either senseless or contradictory of the meaning given to said first sentence.

If the testator intended to and did give to his daughter ah unqualified undivided one-fourth part of his property absolutely, it was superfluous and foolish to then say' that she was to have the rents and profits and the use and income of it, and still further to say that she should have the right to use such property and dispose of or expend so much thereof and of the income and interest as she might choose during her natural life; it was contradictory to provide that she should have an absolute estate and then that a remainder upon her death should go to her children. It may be concededlas stated, that if the testator had chosen he might do all this. He might absolutely give and devise to his daughter this share in his estate and might then annex any number of provisions which would be entirely nugatory and inoperative. But here we are endeuv.oring,.tp, determine what-was.-the.intention of-.the testator, and whether it is to be believed that he meant to do.any such thing as this or to make a clause which in certain of its provisions should be as unavailing as the contention of respondent makes it. . It certainly is our duty not to place such a construction upon his intention as expressed by words if it can be fairly- and properly avoided, as we think it can be, construing together all of the sentences in the clause in question relating to this subject. Doing this, and giving to certain words what we think is their true meaning, we may read this clause as follows: “ I give, devise and bequeath unto my daughter * * * the undivided one-fourth of all the property, etc., of which I shall die seized or possessed, that is, the rents and profits, use, interest and income thereof, and Upon her death whatever may remain of said property, principal, interest or income unexpended by the said Jane Eliza, ! give, devise and' bequeath to the children of her- body * * *. And it is my W-fil that the said Jane Eliza shall use, dispose of or expend so much of the said property and estate, real or personal, use, income and interest as she may choose during her natural life.”

Thus reading the clause, a reasonable construction and interpretation is given to every part of it' and none of the language becomes either useless, absurd or contradictory. The beneficiary takes a life estate- with the privilege of disposing during life of the principal as well, as the income, arid at her death whatever may remain goes to her children. We think this is the true meaning of the' clause, and especially of the first sentence therein.

As before stated, if the testator intended by the first sentence to give his daughter .: an.,absolute/ estate,, there was-no - propriety-in his-following immediately with a reference to the rents, profits and income. When, however, we construe all of his words together and take the words rents and profits, use, interest and income thereof ” as defining what the testator really meant by the gift in the prior sentence of -onetiourth of his property and estate, not only do those words become intelligent and harmonious,- but- the following provisions' in- the clause are clothed With sense and meaning; a result is worked out which, judged by the facts appearing upon the face of the pleading" before us, is proper and natural; the testator’s daughter is provided for during her fife even to the extent, of allowing her to expend the principal of the property covered by the provision in question, and not seeing fit to do this, the remainder goes to her children, natural objects both of her bounty and of that of the original testator.

In accordance with these views we think the judgment sustaining defendant’s demurrer should be reversed, with costs, with leave to the defendant to answer upon payment of the costs of the demurrer and of this appeal.

All concurred.

Interlocutory judgment reversed, with costs, with leave to the defendant to withdraw his demurrer and answer upon payment of the costs of the demurrer and of this appeal.  