
    Lucius H. Beers, as Substituted Trustee of a Trust Created for the Benefit of Frances I. Smith, under the Last Will and Testament of De Forest Manice, Deceased, Plaintiff, v. Caroline A. Grant and Others, Respondents, Impleaded with James Tuttle Smith, Individually and as Executor, etc., of Frances I. Smith, Deceased, Appellant.
    First Department,
    December 30, 1905.
    Will — trust construed — when husband not entitled to share in trust for benefit of deceased wife.
    A will creating a trust of the residuary estate provided that the incoiry) of a certain portion be paid to a daughter of the testator during her life and after, her death that her portion of the principal be paid equally to her surviving children, if any, but that if She died without children the principal be paid to the testator’s heirs at law, in the proportions they would inherit real estate under ' the statute, and that if she died unmarried and without lawful issue surviving, she could dispose of the principal by will. Said daughter died without issue, but married. - She left a will by which she gave the., principal of said trust fund to her hushand.
    
      Held, that her pow.er of disposal by will was conditioned on her decease unmarried, and hence said will was- ineffective to pass the principal of the trust estate to herxhusband; ■ ■ .
    That on the death of said, daughter without heirs, the principal of the estate went to the heirs of the testator as if he were living at said daughter’s death and had died immediately thereafter, and that the husband was hot entitled ' to share therein as heir of his wife.
    O’Brien, P: J.,. dissented, with opinion.
    Appeal by the defendant, James Tuttle Smith, individually and as executor, etc., of Frances I. Smith, deceased, from a judgment of the Supreme Court in favor of certain of the defendants, entered, in the office of the clerk of the County of Flew York, on the.l2th day of October, 190.5, upon the report of a referee.
    
      Herbert C. Lakin, for the appellant.
    
      John M. Perry,for the respondents.
    
      Edward E. Sprague, for the respondent Caroline A. Grant.
   Ingraham, J.:

This case comes before us as a remnant' of Manice v. Manice (43 N. Y. 303) and presents a question arising under a clause of Mr. Manice’s will, which there was no occasion in that case to construe. The present appeal is hy James Tuttle Smith, individually and as éxecutor of the will of his wife, Frances Manice Smith, from a judgment entered upon the report of a referee in an action brought for an accounting by Mr. Beers, as substituted trustee, upon the termination of the trust, to settle his accounts. The question- in volved relates to the ownership of the corpus of a fund constituted or created under the 16th clause of the will of Mr. Manice for.the benefit of his daughter Frances. The appellant claims the whole of that fund, or, if that claim be not sustained, then he insists that he is entitled, as his wife’s executor, to one-fifth of the fund held in trust for her. His claim to the whole rests upon provisions of the will of his wife (which was duly proven) appointing her share in her fathers estate to her husband. Alternatively he claims one-fifth of two-twelfths of the testator’s' estate held in trust for Mrs. Smith, the latter claim being asserted on the ground that, upon her death without issue, the estate held in trust for her passed to the heirs .at law of Mr. Manice and that Mrs. Smith was one of such heirs at law.

The learned referee has held that neither of the contentions of the appellant is correct and_has awarded,the whole fund to the respondents, as between whom there .is no controversy before us, and, therefore, we will only consider the question of the construction of the will as affecting the right ,of Mr. Smith to participate in the estate of Mr. Manice, the original testator. We have but little to add, if anything, to what the referee has expressed in his opinion.

There is no dispute as to the facts. The testator, executed his will on August 23, 1858. His family then consisted of his mother, his wife, two sons, a married daughter, Mrs. Lockwood, and two unmarried daughters, Caroline Amelia Manice and Frances Isabella Manice, who are all referred to" in the will. The testator died in April, 1862. There wás a codicil to the will, but it does not seem at present important. By the 16th clause of his will the testator gave to trustees two equal twelfth parts of his residuary estate in trust to invest and pay the income for the use of his daughter Frances (Mrs, Smith) for and during her natural life, and after her death to divide the said two-twelfths into as many shares as there should be children of his said daughter Frances living at her decease. The testator then provided that in case of failure of children of his said daughter Frances, his executors and trustees should transfer, and pay over the said-two-twelfths to his heirs at law in such shares, and proportions as by the laws of the State of FTéw York •they would take and inherit real estate of which he should die pos-, sessed and intestate*, provided, however, that in case either of .his daughtérs should die unmarried and without leaving lawful issue her surviving, she was authorized; and empowered to make an instrument of appointment. in the nature of a last will and testament, disposing of the said shares of his estate so to be held in trust for her benefit, and in case of her death the same should be. transferred ‘to the persons and parties in the shares and proportions which she should so appoint. ' .

Mrs. Smith died after her father, without children her surviving, and left a will .giving her property to her husband, including that over which • she had a power of appointment; but it is obvious that according to the language of the will, which expresses á clear intention of the testator, the power of appointment could not be exercised unless she died unmarried and without issue. This seems not to be open to controversy. The right to appoint' depended upon the daughter dying unmarried and without issue. There is no ground for claiming that the word “ and ” is to be read “ or.” The power of appointment was to. be exercised under particular circumstances, and was not a general but on the contrary á strictly limited power. The referee in so holding was. right. But the claim is made that even if the power of appointment did not exist, that Mr. Smith is entitled to one-fifth of the two-hwelfths of the éstate which Mi. Beers held in trust for Mrs.. Smith ; that the share of Mrs.. Smith 'in- her father’s- estate passed to the heirs at law of the testator, and that she was one of such heirs.

'■ We think the referee is-right in his understanding, of the scheme of the will, and that Mrs. Smith had no interest in- the property which -would pass by bequest or devise to her husband-,, and that the conclusion at whieh he arrived was correct, namely, that upon the death of Mrs.- Smith it became the duty of the trustee to convey, transfer and pay over the trust fund, both real and personal, in the shares which they would have taken "to and among those who would have been Mr. Manice’s heirs at law had he died a moment after Mrs. Smitlfis death.

The judgment should be affirmed, with costs.

Laughlin and Clarke, JJ., concurred; O’Beien, P. J., dissented.

O’Beien, P. J. (dissenting) :

I dissent from the conclusion reached by a majority of this court. .While the Maiiice will now in question has been the subject of elaborate judicial discussion (Manice v. Manice, 43 N. Y. 303), the decision heretofore rendered is of no aid on the present appeal, as the particular part of the will now in dispute was not then considered.

By the 16th clausé a trust was established during the life of testator’s widow, and upon her death further trusts were provided for, one of which was to continue during the life of Mary 0. Lockwood, and another during the life of Frances Isabella Manice, both daughters of the testator. Then, among numerous other provisions relating to the trusts, appears the one which has given rise to this litigation and which reads as follows: “ Providing, however, that in case either of my said daughters shall die unma/rried and without learning lawful issue her surviving, she is hereby authorized and empowered to make an instrument of appointment in the nature of a last will and testament, disposing of the share of my estate so as aforesaid to be held' in trust for her benefit.”

This controversy relates to the trusts established for the «benefit of the daughter Frances Isabella Manice who, after the testator’s death, married the present appellant Smith. . She died in 1903, leaving her husband surviving but no surviving issue, her two sons having predeceased her. By her will she disposed of the corpus of the trust estate, and the question now presented is whether, under the language of the Manice will quoted, she had the right to so dispose of it, or whether upon her death, without surviving issue, her interest reverted under other clauses cf the Manice will.

It is conceded that if the daughter had hot married she would have had the absolute right of disposing of her interest in the estate by will, and, in my opinion, it was not the intention of the testator to deprive her of that power if she- married, unless, as the result of such marriage, there should be issue living at her death. The pur•pose of the testator, it seems to me, was to preserve his estate for the children of his daughter in case they should survive her, but if she.died without leaving- surviving issue, then she was to have the power of disposing of her interest in-the estate by her will whether she died unmarried or not, "

I am -not unmindful of the fact that in order to give the will this 'construction it.is necessary to change the word “ and ” in the language quoted to the word “ or,” but, as said in Roome v. Phillips (24 N. Y. 463, 470), the rule is settled and should be adhered to that “ in all cases or 'is to be taken for and, and and is to be taken for or as may best comport with the intent and meaning of the grant- or devise.” (See, also, Miller v. Gilbert, 144 N. Y. 68, 74.).

For the .reason above stated this in my opinion is one of the cases where such' a change should be made. To do so is to carry out -the intent of the- testator -as I -read -the will, and unless- it is done, the phrase quoted is redundant. The words are “ unmarried and without leaving lawful issue.” If the daughter were unmarried she could not have-lawful issue and the latter words of the phrase are superfluous. When, however,, the conjunction is changed so that .the phrase reads “ unmarried or Without leaving lawful issue,”' then the meaning becomes plain and the purpose of the testator clear, ■ to wit, to preserve the estate to the children of his daughter, if any survive her, and'to. give her the power of testamentary- disposition in case there should be no surviving children.

I- cannot agree with the assumption of tire.referee, as expressed in his opinion and as approved by the prevailing opihion of this court, that the testator may have intended to designate by the word “ unmarried ” not only a daughter who had not married at all, but also one who might be a widow. To construe “ unmarried as synonymous with “widow” is to give the word a strained and unnatural meaning not in accordance with its common and accepted use, and there' is. nothing in the will itself which would sanction such a Construction. ■N ■

For these reasons I am of the. opinion that Firs. Smith had -the right to dispose of her interest in the estate-by will, -and,' therefore, that the judgment appealed from, which holds otherwise, should be reversed.

Judgment affirmed, with costs.  