
    Joseph E. Moak, Appellant, v. John W. Moak and Others, Defendants; Joseph H. Snyder, Respondent.
    
      Will — the intention, as gathered from the whole will, governs — when a devise to one for life, “ and after her decease to her heirs and assigns forever,” gives a life estate only.
    
    It is a cardinal rule of testamentary construction that the plain intent of the testator, as evinced by the language of his will, must prevail, and such intention may be collected from the whole will taken together.
    Katherine Donaldson, by her will, devised to her grandson, Leroy Snyder, a certain portion of her homestead farm, using the expression “to have and to hold the above-described premises to the said Leroy Snyder, his heirs and assigns forever,” and to a granddaughter the rest of the farm, using the expression “ to have and to hold the same during her natural life, and after her decease to her heirs and assigns forever.”
    
      Held, that in view of the fact that the testatrix had used apt words by which to vest a fee in her grandson, hut had used a different phraseology in the case of her granddaughter, the court must assume that she did not intend to give an estate of the same character to both grandchildren;
    That it was the intention of the testatrix to give the granddaughter only a life estate, and that the phrase “to her heirs and assigns forever” should be construed as if it read “ to her heirs and their assigns forever,” thus giving her a life estate with remainder to her heirs.
    Appeal by the plaintiff, Joseph E. Moak, from a judgment of the Supreme Court in favor of the defendant Joseph II. Snyder, entered in the office of the clerk of the county of Schoharie on the 26tli day of February, 1895, upon the decision of the court rendered after a trial at the Schoharie Circuit before the court without a jury, dismissing the plaintiff’s complaint as to said defendant.
    The will of Katherine Donaldson was as follows :
    
      “ First. I give and bequeath to my grandson, Leroy Snyder, 44 acres of land on the westerly side of my homestead farm, to be cut off by a line running parallel (from the highway) with the east line of said farm, and also .the easterly one-half of a six-acre lot, lying on the north side of the highway upon which the district school house now stands, reserving, however, to the district the privilege of occupying the lands as is now used for school purposes, so long as the said school house shall stand, to have and to hold the above-described premises to the said Leroy Snyder, his heirs and assigns forever.
    
      “ Second. I give and bequeath to my granddaughter, Maria Moak (wife of Jacob M. Moak), all the remaining easterly part of my homestead farm and the westerly half of the six-acre lot lying oil the north side of the highway, to have and to hold the same during her natural life, and after her decease to her heirs and assigns forever. * * * ”
    
      Clarence P. Holmes, for the appellant.
    
      John S. Pindar, for the respondent.
   Parker, P. J.:

Katherine Donaldson, by her last will and testament, which was admitted to probate in Schoharie county November 2, 185J, made the following devise : “ Second. I give and bequeath to my granddaughter, Maria Moak (wife of Jacob M. Moak), all the remaining easterly part of my homestead farm, and the westerly half of a six-acre lot lying on the north side of the highway, to have and to hold the' same during her natural life, and after her decease to her heirs and assigns forever; ” and the single question presented by this appeal is, whether Maria Moak, by such devise, took any greater interest than a life estate in the premises.

If it were not for the insertion of the words and assigns ” after the words “ to her heirs,” in such devise, it is conceded by all parties that her interest would have been limited to a life estate; but the trial court held that, by the use of the words to her heirs and assigns,” a grant of power to dispose of the remainder after her death was given her, and that, therefore, the estate which she took was equivalent to a fee in the lands.

A cardinal rule of testamentary construction is, that the plain intent of the testator, as evinced by the language of his will, must prevail, and such intention may be collected from the whole will taken together. (Schouler on Wills, §§ 466, 468 ; Byrnes v. Stilwell, 103 N. Y. 458 ; Roe v. Vingut, 117 id. 204-212.) “ Where words are equivocal, that explanation shall be given which will preserve consistency, in preference to one which will create inconsistency. If possible some effect shall he given to each distinct provision rather than that it shall be annihilated.” (Chrystie v. Phyfe, 19 N. Y. 344, 348.)

We are to seek, therefore, for the intent of the testatrix as manifested, not only in the particular language Avliich constitutes this devise, but also by any other language or provision of the will bearing upon this question ; and when we shall have so ascertained the testatrix’s intent, Ave shall have solved the question presented to us. By the first clause of the will, the testatrix gave to her grandson, Leroy Snyder, the other half of the lands mentioned in the-devise under consideration, and in so doing made use of the íoIIoaving language : “ First. I give and bequeath to my grandson, Leroy Snyder, forty-four acres of land, * * * to have and to hold the above-described premises, to the said Leroy Snyder, his hems and assigns forever.” Here is a plain devise of the fee in one-half' of the lands, made by apt and appropriate language, to vest the-absolute title and fee in him. She then proceeds by the second clause, above quoted, to dispose of the other half of such premises-She gives and bequeathes all such other half to her granddaughter, Maria Moak, to have and to hold the same during her natural life, and, after her decease, to her heirs and assigns forever.” Oan there be any doubt but that the testatrix intended to give a different estate or interest to Maria Moak from that Avliich she had given to Leroy Snyder ? Is it at all probable that she used the apt aud natural Avords to give Leroy a fee in one-half the lands, which she did use, and then, with the purpose and intent of giving Maria Moak the same interest in the other half, she used the unusual and very doubtful phrase which we find in the devise to her ? Can we for a moment suppose that, with the fixed purpose and intent in her mind to give Maria Moak the absolute OAvnership, she would first declare that she Avas to “ have and hold the same during her natural life,” and then negative that limitation by the provision that, after her decease,” she Avas to hold it to her assigns forever ? Surely she did not adopt such phraseology for the purpose of investing Maria Moak with the same interest that she had given to Leroy Snyder. What, then, was the interest she intended to give to Maria Moak % She had given Leroy Snyder the absolute ownership forever. Plainly she intended Maria Moak to have a different, and necessarily a less, interest; and the first phrase Avliich she used, viz., “ to have and to hold the same during her natural life,” in my opinion, designates exactly what she intended her to have. They are the natural and apt words to use in bestowing a life estate upon her. They are utterly inapplicable and of no force whatever in order to bestow a fee, or any greater interest, in the premises. The interpretation for which the respondent contends requires us to omit entirely from this clause of the will the words “ during her natural life and after her decease,” and to give force only to the words to have and to hold the same to her heirs and assigns forever.” We must drop out the words “ and after her decease,” as well as the words “during her natural life;” for a phrase reading, “ to have and to hold the same, and after her decease to her heirs and assigns,” would hardly manifest an intent to vest in lier absolute and unlimited ownership and power over the estate. It would indicate that the testatrix’s idea was to have her hold possession until her decease, and that after that only were her assigns -or heirs to take. The idea of a life interest and possession seems to have been the leading one in the testatrix’s mind; and with that in view we are to inquire what effect is to be given to the words her heirs and assigns ? ”

It is plain, I think, that the scrivener intended to give the absolute ownership to Maria Moak’s heirs, after her death, and that he "used the words and assigns ” for that purpose. The idea in his mind was that, after her death, the estate was to go to her heirs and their' assigns, and such, I think, should be the reading which we must give it. The phrase and after her decease, to her heirs and assigns,” is by no means unnaturally forced by such a construction. If it read “ to her heirs or assigns,” it might be different, but it could hardly go to both her heirs and her assigns, after her death, by .any disposition she could make of it. I am so thoroughly convinced that the testatrix intended to give Maria Moak no more than a life estate, that I think we are authorized to insert the word “ their ” before the word “ assigns,” and by so doing we give effect to all the language of the devise. (Phillips v. Davies, 92 N. Y. 199.)

The respondent relies upon the case of Goetz v. Ballou (64 Hun, 490) as authority for the construction which he claims should be .given to this will. True the phrase after her decease to her heirs ■and assigns forever,” is there interpreted as he desires this to be, but the reasoning in that case is in entire harmony with the reasoning and conclusion above adopted. In that case the intent of the testator was sought for, and it was conclnded that by such phrase he intended to give the absolute ownership to his daughter Louise therein named, because by a previous clause in the will he had by the use of apt and appropriate words given a life estate to another daughter with remainder over to her heirs Thus he had devised the premises to his daughter Agnes for life, and by the following language, And from and immediately after her decease I give the same to her heirs or their assigns forever,” he liad limited a remainder upon it. It was concluded that had he intended to give to Louise the same kind of an estate that he had given to Agnes, with a similar remainder over, he would have used similar language, and that the purpose to give them different estates was plainly indicated by the change made in the language used.

I conclude, therefore, .that under the will in question Maria Moak took no more than a life estate in the premises; and that, therefore, the judgment dismissing plaintiff’s complaint was erroneous and should be reversed.

All concurred.

Judgment reversed, new trial granted, costs to abide event.  