
    Fred. H. Mead, Individually and as Adm’r, Resp’t, v. Wilber D. Maben et al., Individually and as Ex’rs, App’lts.
    
    
      (Court of Appeals,
    
    
      Filed March 1, 1892.)
    
    1. Will—Construction.
    The rule that a devise to one or more persons absolutely and. in case of death without issue to survivors refers to a death in the life-time of the testator, and that the prior legatee surviving testator takes absolutely, must yield if, upon consulting the provisions of the will, the court, can find warrant for importing into the language used by the testator the natural and ordinary significance showing that he intended the death to mean a death occurring at any time.
    .3. Same.
    The will provided that if any of testator’s children, except one daughter, should die without leaving child or Children or heirs of the body, the share ■of the one so dying should go equally to the of,her children, "but in the manner and subject to the like limitations as the specific bequests to each ■of them as has been hereinbefore provided and given." As to the share of the excepted daughter it had been provided that on her death without leaving a will her share was to be divided among the other children. Sdd„ 
      that the restriction applied to a death occurring at any time, and the purpose of the will was to prevent a sharing of the testator’s estate by others than, his children or their issue.
    3. Same—Equitable conversion.
    The directions of the will empowering testator’s executors to sell his real estate and divide his estate into seven equal parts, each child mentioned by name to have one share, effected an equitable conversion of the realty into personalty as of the time of testator’s death.
    Appeal from judgment of the supreme court, general term,, third department, reversing decree of surrogate construing will and distributing estate in accordance with such construction.
    
      Emory A. Chase, for app’lts; E. Countryman, for resp’t.
    
      
       Reversing 38 St. Rep., 304.
    
   Gray, J.

Upon the accounting of these executors the question arose as to the distribution of the share in the testator’s estate which was given by his will to a daughter, since deceased. It is claimed, on the one hand, by her administrator, and, on the other, by the other children of the testator. This daughter, in dying, left her surviving a husband, but no 'issue. Turning to the testator’s will for a determination of this question, We find, in the first three clauses, that he made certain important bequests. In the fourth clause he gave the rest of his property to his executors, to be disposed of as thereinafter provided. The fifth clause-gave them a discretionary power of sale as to the realty and directed them to make a division of the whole estate into seven-equal parts. To each one of his seven children was given one of such parts and, until the sale of the realty, its income was to bopaid over to them in the same proportions. Then follow clauses which are quoted in their entirety:

Sixth. If my said daughter Diademia shall die without leaving-her will, all the share and interest remaining hereby given to her shall be equally divided among my other children.
Seventh. If my son Jonathan shall die without having left his-will, then .1 direct my executors, if they shall deem it proper and expedient, that they may give to any child or children of my son Jonathan the whole or.any part of the share remaining herein given him; otherwise such remaining share or interest shall be equally divided between my other children.
“Eighth. If any of my children except Diademia shall die without leaving surviving child or children or heirs of the body, then the share or portion of my estate so given to such deceased child shall go equally to my other children, but in the manner and subject to the like limitations as the specific bequests to each, of them as has been hereinbefore provided and given.”

The seven children survived their father; who died within a: few days of the execution of his will. Of his children but two-were unmarried; namely Diademia, who was forty years old and is referred to in the sixth clause, and Abigail, who subsequently-married, and died childless. It is her husband who now^ claims-that she took an absolute interest in her father’s estate, which was not divested by her death without issue.

The justices of the general term below, upon whose concurrence in opinion a decision by the surrogate adverse to the claim of Abigail’s administrator was reversed, deemed themselves bound. by the rule that where a testamentary gift is simply to one or more persons and in case of the death of any one of them, without, issue, to survivors, the death referred to means a death in the life time of the testator and the prior' legatee surviving the testator takes absolutely. 2 Jarm. on Wills, 752. They concede that if there was any provision which would qualify the effect of that general rule upon such language in a testamentary gift, it should be considered and an apparent contrary intention should be sustained. But, as they regarded the testamentary provisions, there-was nothing to prevent the application of that general rule of construction and, hence, they held that the death referred tó in the eighth clause was that which should occur in the testator’s, life-time and that as Abigail' survived, she took an indefeasible-estate. We think the appeal should prevail and that there are sufficient indications in this will of the testator’s intending the-death of his children under the eighth clause to be a death occurring at any time. The eighth clause of this will is notsubstitutionary merely. The scheme of the will and the context seem to indicate, strongly, a distinct purpose to prevent a sharing in the testator’s estate by others than his children, or their issue. In all the authorities which are referred to upon the subject of .the application of the-general rule above referred to, the courts, as-indeed does Mr. Jarman, upon the authority of whom the courts have more or less relied, assume that the context of the will is silent and that the instrument contains nothing indicating an intention which interferes with the application of this.rule, Vanderzee v. Slingerland, 103 N. Y., 47; 2 St. Rep., 732.

The rule must yield if, upon consulting the' other provisions of a will, we can find a warrant for importing into the language used by the testator the natural and an ordinary significance. It cannot be denied that the ordinary import of the words, “ if any of my children shall die,” is that of a death of any of them at any time; and there are evidences in this will that not only such was the probable intention of the testator, but that to give a different construction to the language would be to thwart an apparent and a natural purpose of keeping his estate from the possession of' strangers in blood.

There was effected, under the directions in the fifth clause of this will, an equitable conversion of the realty into personalty, as of the time of testator’s death. That it was intended that each child should take his or her share as of that time seems evident from the gift of the income arising, intermediate the time of the testator’s death and the sale by the executor of the realty. While, however, each child took a vested interest in the seventh part of the estate , upon the testator’s death, subsequent clauses of the will annexed conditions to their ownership, which provided for-the distribution of the shares so given, either, as in the cases of Diademia and of Jonathan, should they die intestate; or, as in the cases of the other children, and including Jonathan, too, should die without issue. It is in the con•sideration of these clauses that we find the circumstances which compel us to give to the testator’s words in the eighth clause the broader meaning of a provision for the case of a death of a child at any time. In the sixth clause, when he provides that if “Diademia shall die without leaving her will,” all her share and interest remaining shall be equally divided among my other children, he obviously contemplates her death after him. Her right to will, and the direction to divide the “ share or interest remaining,” sufficiently indicate that understanding. So when, in the seventh clause, he provides that if “ Jonathan shall die without having left his will,” the executors have the discretionary power to give “ the whole or any part of the share remaining ” to any of his children; or “ otherwise ”. are to divide “ such remaining share ” equally among testator’s other children, it is a clear indication of a testamentary purpose to be effectuated in the case of •Jonathan’s death intestate after the testator.

When then, in the eighth clause, we find the provision that “if any of my children, except Diademia, shall die” without issue, the share so given to such deceased child shall go equally to my other children, the testator must be deemed to have used the words “ shall die,” in the same association of ideas as he had just previously used them ; namely, of the child’s death after him and while in possession of his or her share ; and with the intention of providing for the event of a child dying without leaving children to take the share. This idea is enforced by the exception of Diademia from the operation of the testamentary direction in this clause. - In her case, a woman forty years of age and unmarried, she was given the right to dispose by will of her share; a right and favor greater than were conferred upon the other children ; for even Jonathan was not excepted in the eighth clause. In the seventh clause, which related to him, his right to will the share was only in the event of his leaving issue. The eighth clause placed him in the same category with the children, other than Diademia, in the event of his leaving no issue him surviving. The words “ shall die,” in this eighth clause, should be read, not only in connection with an association of ideas, dominant at the time by natural sequence, in the testator’s mind, but as well in the light of an evident and contemplated purpose to prevent at any time, by reason of the death of a child, before as well as after testator, the passing of his property into any hands save into those of a child or descendants, except in the one peculiar case of the daughter Diademia, who was permitted to will away the share which came to her and whose marriage and possibility of issue were not considered. That this eighth clause covers the case of a death either before or after the testator’s seems plain, too, because it makes the gift over, if a child shall die without issue, “ in the manner and subject to the like limitations as_ the specific bequests to each of them as has been hereinbefore provided and given.” The expression may, perhaps, not be very happy; but, nevertheless, of necessity, it must have a reference to a disposition by the testator upon, or at the time of his death, as to the nature of the interest which should vest in each child and be held, by him or her after his death and until he or she shall ■die.

We agree with the learned justice who dissented at the general term, in thinking that, in this case, the intention of the testator is better carried into effect by following the literal meaning of the language of his eighth clause, than artificial rule? of construction. Where the testator’s intention is concealed and context is silent, ■and circumstances are wanting to aid us, the application of such a general rule is proper enough and safe; but, where the courts ■can make out the testator’s probable intention, and it can be carried into effect without violating any rule of law, or statute, no general rule may rise above it.

The judgment of the general term should be reversed, and the decree of the surrogate should be affirmed, with costs.

All concur, except Maynard, J., absent.  