
    Frances J. Byrnes et al., Respd’ts, v. Benjamin M. Stillwell and wife et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed November 23, 1886.)
    
    1. Will—Construction—Remainder—When vested.
    Where a clause of a will devises certain land to testator’s daughter during her life, and then provides for the child or children of his daughter, and his or their lawful heirs forever, if more than one, share and share alike, after the life estate first given has terminated; and. in case of the death of any of his daughter’s children leaving a lawful child or children surviving, such child or children to take the share or portion which the parent would have been entitled to if living, and no provision is made by the will, in case of the death of any child or children of his daughter before the termination of the life-estate of the mother. Held, that the devise was a remainder in fee to children of the testator’s daughter, subject to open and let in children born after his death, as tenants in common, and as contradistinguished -from joint tenants. That such a vested estate in the land was alienable or devisable by them, or descendible from them.
    3. Same—When a subsequent clause will limit prior devise op estate IN PEE.
    An estate in fee created by a will cannot be cut down or limited by a subsequent clause, unless it is as clear and decisive as the language of the clause which devises the estate.
    3. Same—Vesting op estates favored.
    The courts will always give such a construction to a will as will tend to best provide for descendants or posterity, and will prevent the disinheritance of remainder-men who may happen to die before the termination of the precedent estate.
    Appeal from a judgment of the supreme court, general term, first department, affirming an interlocutory judgment of the special term and denying a motion for a new trial made at the general term in the first instance; and, also from a judgment affirming a final judgment of the special term in a suit for partition.
    
      Benjamin M. Stillwell, for app’lts; Daniel I Waldin, for resp’ts
    
      
       Modifying 38 Hun, 53
    
   Miller, J.

The question arising in this case depends upon the construction to be placed upon the provisions contained in the last will and testament of John W. Gilbert, deceased, which provisions, so far as material, are as follows: “I give, devise and bequeath unto my daughter Maria, the wife of John Wood, for and during, and for the full end and term of her natural fife, my two lots of ground situate, lying and being in the second—late third—ward of the city of New York. * * * And from and immediately after the decease of my said daughter Maria, I give, devise and bequeath the last aforesaid two lots of ground, houses, buildings and premises * * * so as aforesaid given unto my said daughter Maria, during her natural life, unto the lawful child or children of my said daughter, his or her or their heirs forever; if more than one, share and share alike, as tenants in common; and in case any or either of the children of my said daughter Maria, at the time of her death, be dead leaving a lawful child or children him or her surviving, such child or children shall take the share or portion which his, her or their' parent would have been entitled to if living, to have and hold to him, her or them, and their heirs forever.

The will was executed on the 13th day of February, 182f, and the testator died in or about 1828.

The devisee, Maria, at the time of the testator’s .death, was the mother of six children. Another child was bom to her during the life-time of her then husband, and after the death of the testator. In 1830 her husband died, and in 1834 she intermarried with William Mulock, by whom she had four children. In May, 1882, she departed this life, and left her surviving eight children, three who were living at the time of the testator’s death having died without issue before her death.

The question we are called upon to determine is whether either of the three children who were living at the death of- the testator, but who died during the life-time of their móther, without leaving issue, took, under the provisions of this will, such a vested estate in the lands as was alien■able or devisable by them, or descendible from them.

The learned judge, at special term, found that they did not; and that tíre remainder which, upon the death of the testator, vested in these children of his daughter Maria, was subject to be, and was, divested by their death before their mother, without issue, and this judgment was affirmed •by the general term. The intention of the testator, which is to be derived from the language employed in the will itself, which 'is to be interpreted in the light of the surrounding circumstances, is the controlling element in the construction of wills, and, so far as cart be ascertained in accordance with the rule stated, should be taken into consideration and carried into effect.

The clause in the will cited, devises the lands in question to his daughter during her life; it then provides for the child or children of his daughter, and his, her or their law- ■ fui heirs forever, if more than one, share and share alike, after the life estate first given has terminated;, and in case of the death of any of his daughter’s children leaving a lawful child or children surviving, such child or children to take the share or portion which the parent would have been entitled to if living. No provision is made by the will in case of the death of any child or children of his daughter before the termination of the Hfe-estate of the mother.

It is apparent that the devise in question was a remainder in fee to the children of the testator’s daughter, subject to open and let in children bom after his death, and for that reason the five children born to his daughter after his death each became entitled to a share of this remainder. Whether such remainder could be enlarged by the death of any of the remainder-men without issue is a serious question, which is not free from difficulty. It will be observed that no words of survivorship are contained in the will, either in the main devise, or in the subsequent clause, which indicate an intention of the testator that the surviving brothers and sisters were to take in the. event of the death of any of his daughter’s children without issue. There are no words to that effect in the devise in question, and the existence of any such intention cannot, we think, be derived as a matter of inference from the language employed in the will. After the death of the daughter, the devisa is to her child or children, and his, her, or their heirs forever, and, if more than one, share and share alike, as tenants in common; and if the intention of the testator was to restrict or limit the shares devised to his daughter’s children so that, in the event of any of them dying in the life-time of their mother, his or her share should not pass to the heirs at law, but' to the survivor, he'clearly would not have added these words of inheritance, and would have used appropriate language for that purpose. The language employed, as well as the omission to use words of a different import, indicate the intention of the testator that each of the children named should take an absolute fee, subject to be diminished by the birth of other children, as tenants in common, and as contradistinguished from joint tenants.

The use of the words “if living,” in the additional clause of the will, did not, we think, refer to the time of the death of the daughter, and to the children then living, or indicate an intention that in case any of the children died during the mother’s life without issue, that the number of shares should be limited to those who survived their mother. Such á construction would be in direct contradiction of the previous language employed in the principal devise, and cannot be maintained, in the absence of any words which convey such an intention. It may be remarked that the words cited are not connected with, and do not constitute, a part of the principal devise to the children of the testator’s daughter, and manifestly were not intended to limit the shares which the daughter’s children, if living at the testator’s death or afterwards born, were to take under .he will, but had special reference to the share or shares which the issue of her deceased children were to take in case any of his daughter’s children had died leaving issue. He had provided for all the others in the first portion of the devise, and it was only the issue of such as might die before the death of his daughter, and whose issue would not take under this devise, for whom he intended to provide. It may also be added that it is of no importance whether the words “if living” relate to the time of the testator’s death or his daughter’s death, inasmuch as none of his daughter’s children died leaving issue either during the testator’s life-time, or during his daughter’s life-time, and therefore the contingency intended to be provided against never happened. For this reason there was no qualification or limitation upon the devise which preceded it.

An estate, in fee, created by a will, cannot be cut down or limited by a subsequent clause, unless it is as clear and decisive as the language of the clause which devises the estate. Thornhill v. Hall, 2 Clark & F., 22; Roseboom v. Roseboom, 81 N. Y., 359; Campbell v. Beaumont, 91 id., 467; Freeman v. Coit, 96 id., 68.

■ The effect of the construction contended for by the counsel for the respondents would be that, in case all the children of the testator’s daughter had died during her lifetime without issue, and there were no survivors, the estate would pass to the collateral heirs. The grandchildren of . the testator would thus be divested of any absolute interest in the estate, by remote kindred. They would take only an unsubstantial estate, and, in case they did not survive their mother, they would be vested with no interest whatever. The law favors the vesting of estates, and courts will always give such a construction to a will as will tend to best provide for descendants or posterity, and will prevent the disinheritance of remainder-men who may happen to die before the termination of the precedent estate. Moore v. Lyons, 25 Wend., 142; Scott v. Guernsey, 48 N. Y., 106; Low v. Harmony, 72 id., 408.

We are referred by the counsel for the respondents^ to numerous cases which it is claimed sustain the position contended for by him, but none'of them are precisely in point. Those relied upon in this state are clearly distinguishable, as will be noticed upon an examination of the same.

In Nodine v. Greenfield (7 Paige, 544), the devise was to the widow for fife, and then to the children of another person who should be living at her death, and the issue of such as should die, and, in default of such children or issue then living, then over to such person, and, if he were dead, to the testator’s next of kin. It will be seen that the facts differ materially from those presented in the case now considered, and the case is not analogous.

In De Peyster v. Clendining (8 Paige, 294), there was a devise of the life-interest to the wife, then to his children, | and, upon their death, to their issue, and, if either of them died without issue, their shares to go to the survivors. Here is an express provision in favor of the survivors, which makes a marked distinction between the case cited and the one at bar, and renders it entirely inapplicable.

In Kane v. Astor’s Executors (5 Sandf., 469), the devise was to the daughter during life, and then to the surviving issue, thus expressly providing for who survived.

In re Ryder (11 Paige, 185), the devise was to A. for life, remainder to her surviving children, and to the issue of such as should have died leaving issue at her death. Here, also, the survivor is provided for.

In Sheridan v. House (43 N. Y., 4 Keyes, 569), there was a grant to J. for life, and, after his decease, to his heirs forever; and it was held that this vested future estate of each child, though liable to be defeated by the child’s death before that of his father, was, nevertheless, under our statute law devisable, descendible and alienable. This decision sustains the view that the devisees had a vested interest which they could lawfully dispose of, and it does not aid the plaintiffs’ case. If anything, it establishes that the devisees who died had an interest which was vested and transferable and devisable, subject to the conditions provided for in the grant. As the remainder in the case cited was limited to the heirs and assigns for life, before the right is absolute the tenant for life must die to terminate the estate and to ascertain the heirs. The character of heir must be gone before the remainder vests in possession, and hence the remainder may be defeated by the death of any child before his father. In the case at bar, the devise is to the child or children of the life-tenant, thus specifying the character of the devise after the death of the life-tenant and leaving no uncertainty as to who was entitled to the remainder.

In Moore v. Littell (41 N. Y., 66), the devise was to a person named, and after his death to his heirs and assigns forever, and the remarks made concerning the case last cited are applicable.

In Smith v. Scholtz (68 N. Y., 41), the devise was to the grandchildren of the testator with a provision in favor of the survivor and the heirs of such survivor, and it contains nothing adverse to the views we have expressed.

Reliance is also placed on Kelso v. Lorillard (85 N. Y., 177), where the devise was to the husband for life, remainder to a son. if he should five until he became of age and then over. Here is an express provision for defeat of the estate in case of the death of the son before maturity, and the case in no way sustains the rule contended for by the respondent’s counsel.

Some other decisions are referred to which have been examined, but none of them, we think, are in conflict with the views already expressed.

It may be remarked, as to the cases relied upon by the respondent, that in several of them there was an express devise over of the remainder, either to the survivor or to some other person, in case of the death of the first devisee without issue during the life-time of the tenant; or other language which limited the devise of the remainder so that it could only take effect in case of his surviving the fife-tenant. Hone of the cases sustain the position that where there are no words of limitation or survivorship, or of devise over to some other person, in the event of the death of the remainder man without issue during the life estate, his share is to be divested entirely, or become vested in the survivor or any other than the heirs or assigns.

The appellant’s counsel cites several cases to sustain the position that the testator intended that upon his death his daughter should be entitled to and should take a life estate in his land, and that her children who should then be living should at the same time be entitled to and should take a vested remainder in fee in the lands ; if more than one, share and share alike, and as tenants in common, subject, however, to open and let in after-born children to an equal share with them. Wemple v. Fonda, 2 Johns.; 288 ; Doe v. Provost, 4 id., 61; Livingston v. Greene, 52 N. Y., 124; Embury v. Sheldon, 68 id., 233. It is true that the authorities referred to tend strongly to uphold this construction of the testator’s will. While they bear upon the subject they do not, however, precisely cover the point here presented and cannot be regarded, therefore, as entirely conclusive.

The question is a new one and has never been determined in this court. Its solution must, therefore, stand upon the' construction to be placed upon the testator’s will by invoking the rules of law which are applicable to such a case.

It follows that the court below was in error in its conclusion, and the judgment should be modified in accordance with this opinion, with costs to the appellant to be paid out of the proceeds of the sale.

All concur.  