
    
      In re Mapes’ Estate.
    
      (Surrogate’s Court, Orange County.
    
    May, 1890.)
    Construction of Will—Contingent Remainder.
    Testator bequeathed to his son the use of 84,000 for life, and directed the principal, after the son’s death, to he paid to his children. The will then gave to testator’s daughter “all the fest, residue, and remainder of the estate,” and “any legacies herein given which may for any cause lapse. ” Held, that the daughter, at the death of testator, took a contingent remainder in the §4,000 legacy, which became absolute on the death of the son without issue, though he survived the daughter, in which case the legacy was payable to her personal representatives.
    Proceeding for the accounting of the executors of the will of George H. Mapes, deceased.
    
      B. R. Champion, for executor of Sarah J. Mapes. W. J. Mills, for executor of John S. Mapes.
   Coleman, S.

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,! think, appears from the fact that he not only gave her “ail 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. Ho 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 legacies 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 And 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 h§r 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 legated 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.  