
    Thomas Smith, App’lt, v. Thomas Isaac Smith et al., App’lts., et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed January 16, 1894.)
    
    "Will—Residuary clause.
    A general, sweeping residuary clause carries everything not before effectually disposed of, unless the testator, by the language he uses, manifests a plain intention to curtail its operation.
    Appeal from judgment of the general term of the supreme ■court in the second judicial department, entered upon an order made September 11, 1898, which affirmed a judgment construing the will of Isaac Smith, deceased, entered upon a decision of the court on trial at special term.
    The nature of the action, and the facts, so far as material, are set forth in the opinion.
    
      Josiah 1. Marean, for app’lt; George M. Baker, for resp’ts.
   Earl, J.

This action is for the construction of the will of Isaac Smith, deceased, and the clauses to be construed are the following:

Twentieth. I give and bequeath to said Sarah A. Parish the use and income of the one equal half of all the real estate that I may die seized of, during her life, but not to exceed the full term of twenty years after my death, and it is my will that the said Sarah A. Parish shall cut no more wood off of said premises than will be necessary to keep the buildings and fence in good repair.

Twenty-first. I give and bequeath to Isaac Smith, the son of my nephew, Thomas Smith, the use and income of the remaining one equal half of my real estate during his life, but not to exceed the full term of twenty years after my death; it is my will that the said Isaac Smith shall not cut any more wood off of the premises than will be necessary to keep the buildings and fence in good repair. And in case the said Isaac Smith should chance to die before the expiration of twenty years after my death, I give the use and income of said last mentioned half part of my real estate to the eldest male issue of Thomas and Anna Smith then surviving, and if it so be that the said Isaac Smith does live for the full term of twenty years after my decease, then and in that event, I give, devise and bequeath the whole of my real estate to the said Isaac Smith, upon the condition that he pays to his surviving brothers and sisters and their issue in equal shares the sum of $3,000, the issue to take their parent’s share. In case the said Isaac Smith should die before the expiration of the said twenty years after my decease, I then and in that event give, devise and bequeath the said farm and real estate to the eldest male issue of Thomas and Anna Smith, upon the same conditions with reference to the charge of $3,000, and subject to the estate herein given to Sarah A. Parish.

“All the rest, residue and remainder of my estate I give and bequeath tomy executrix hereinafter named and her successor and successors in trust, to invest in such securities as are considered safe and proper for trustees, and out of the income thereof first to apply to the use of Sarah A. Parish and Isaac Smith, and the survivor of them, but not to exceed the term of twenty years after my decease, such sum as may suffice for the payment of all taxes and assessments which may be levied on my said farm and real estate from time to time during the period of the estate hereby given to the said Sarah A. Parish and Isaac Smith, and also the sum of $300 per annum for the purpose of purchasing manure to be used on said farm, and all necessary and proper sums of money to keep the buildings and improvements on said farm and real estate in good tenantable order and repair; and second to apply the residue of said income annually in equal shares to the use of the children of Thomas Smith and Daniel W. Smith, in equal shares annually, until the death of Sarah A. Parish and Isaac Smith, when this trust shall end and terminate unless sooner terminated by the twenty years’ limitation above declared. Upon the death of the said Sarah A. Parish and Isaac Smith, or sooner determination of the trust hereinbefore created, I give and bequeath my said residuary estate in equal shares to the children of my nephews, Thomas Smith and Daniel W. Smith, who may be then living, and to the issue of any of. such children who may then be deceased, such issue taking his or her parent’s share. ” ,

The testator died June 28,1878, Sarah A. Parish died Decemcember, 1880, and Isaac Smith died May 27,1890. At the latter date Thomas and Anna Smith had no issue living, and their eldest son, thereafter born, is the appellant Thomas Isaac Smith, who was born March 13, 1892. He claims all the real estate as devisee thereof on the ground that he is the eldest male issue of Thomas and Anna Smith. The appellant Thomas and Daniel W. Smith are nephews of the testator, and, as such, his only heirs at law and next of kin, and they claim that the devise of the real estate upon the death of Isaac Smith lapsed; that it did not pass to their children under the residuary clause; that the testator died intestate as to it, and that they take the whole of it as heirs and next of kin. The respondents are the residuary devisees, and they also claim that the devise of the real estate upon the death of Isaac lapsed, and that it passed to them under the residuary clause, and the court below has upheld their claim, and, we think, correctly.

Sarah A. Parish having died within twenty years after the death of the testator, the provision for her needs no attention now. Isaac Smith was to have the use of one-half of the real estate for his life, but not exceeding the term of twenty years. If he died within the term the use of the one-half of the real estate given to him was to goto “ the eldest male issue of Thomas and Anna Smith then surviving.” If he survived the term then he was to have the whole of the real estate, and if he died during the term then the whole of the real estate was to go “to the eldest male issue of Thomas and Anna Smith.” We think the testator had reference to the same person and the same time in the two clauses when he speaks of the eldest male issue surviving and the eldest male issue. He did not mean, upon the death of Isaac within the term, to give the income to one person to he ascertained at a definite time, and the corpus to another person to be ascertained at another future and uncertain time. He had in mind a definite time when the estate was to vest, and did not mean that at the death of Isaac the real estate was to vest as intestate property in his heirs or under the residuary clause in the residuary devisees, and then at some uncertain and perhaps distant time to be divested, and vest in male issue then born. If he had so intended he would probably have made some provision for the disposition of the real estate intermediate the death of Isaac and the birth of male issue of Thomas and Anna Smith. It is a very obvious and natural construction of all the language used to read it as if the words “ then surviving ” were repeated in the second clause after the words “ Thomas and Anna Smith.”

Therefore, as Thomas and Anna Smith had no male issue at the death of Isaac, there was no one to take the devise, and it lapsed. What became of it? Clearly it passed under the residuary clause. It is a general, sweeping residuary clause, and carries everything not before effectually disposed of. Cruikshank v. Home, etc., 113 N. Y., 337; 22 St. Rep., 738; Matter of Crossman, 113 N. Y., 503; 23 St. Rep., 259; Matter of Bonnet, 113 N. Y., 522; 23 St. Rep., 268. Such is the general rule, and we should not, by engrafting exceptions upon it, or by subtile refinements and distinctions, render the construction of wills difficult and uncertain, and the rule should have full effect unless the testator by the language he uses manifests a plain intention to curtail its operation. The expectations of a testator and his intentions may be two different things. He never expects that any of the dispositions of his will are void, and he rarely expects that any of the devises and bequests will lapse. But when he attempts to dispose of all the property he may own at his death he never intends to die intestate, and he intends that a general residuary clause shall cany whatever as matter of fact or of law is not otherwise disposed of.

Our conclusion, therefore, is that the judgment should be affirmed, without costs to any party in this court.

All concur, except Bartlett, J., not sitting.

Judgment affirmed.  