
    Arcularius vs. Geisenhainer. In the matter of the estate of George Arcularius, deceased.
    The testator left his children legacies of $5000 each, some absolutely and some in trust, and after directing the investment of one-third of the proceeds of his real and personal estate for the use of his wife during life, disposed of the residue as follows: “ I give, devise, and bequeath all the rest, residue and remainder of my estate to my children by my present wife Phebe, together with the share of my estate set apart for my said wife during her natural life, upon her decease, equally to be divided among them.” Held, that J. S., one of the said children, was equally entitled to share in the residue with the others, notwithstanding his legacy of $5000 was placed in trust during his life, and by a codicil was directed, on his desease without issue, to fall into the residue.
    A bequest for life in trust is not repugnant to another or further bequest absolutely. A gift in remainder to a life-tenant of a share in a fund in which he has a life interest, is not so contradictory and incongruous as to be incapable of being carried out. A certain and definite gift is not rendered nugatory by a subsequent provision of uncertain signification. It is a settled principle of construction not to disturb a prior gift any further than is absolutely necessary to give effect to a posterior qualifying disposition. A legacy may be made payable after the legatee’s death. Effect should be given fl to every part of a will, and no portion is to be disregarded, unless entirely ¡1 repugnant to another portion. The intention is to be gathered from the entire instrument, and if several clauses can be harmonized, none of them will be rejected. Where the terms of a will are not ambiguous, resort cannot be had to extrinsic evidence. Such evidence may be received to determine whether the words of the will, with reference to the facts, admit of their being construed in a primary sense; but that being determined, and no ambiguity existing, the court cannot speculate about the testator’s intention, in opposition to his will, as written.
    The construction of wills is not affected by punctuation. The gift of a remainder “ upon” the decease of the life tenant is not conditional but vested, and does not therefore lapse by the death of the legatee before the contingency has occurred.
    John T. Hoffman, for Executors.
    
    I. Sufficient doubt exists in respect to the- true construction of the will to warrant the consideration of facts which existed at the time the will was made, and' which were known to the testator, and which may be supposed to have influenced him in the disposition of his property.
    And parol evidence of such facts is admissible. (1 Jarman on Wills, page 362.)
    II. The intention of the testator, as- gathered from the whole will, aided sometimes by the consideration of facts and circumstances, as they existed at the time the will was made, must be the chief guide in construing the will. (8 Mass. Rep., p. 3. 11 Mass. Rep., p. 528. Smith vs. Bell, 6 Peters. R., p. 68.)
    III. The evident intention of the testator was to place Jacob S. on a footing with the children by the first wife, as far as possible ; all of whom as well as Jacob had received advances in the testator’s life-time.
    Hence he gives him the same amount as he gives to each of them, $5000, and provides that on the acceptance of that specific sum his debts shall be forgiven him, as theirs are forgiven them, on the acceptance of a like sum.
    IV. It was his further intention to limit him to the interest for life of $5000; to give him no sum in cash in possession ; to keep the principal from his control.
    1. Hence the provision in the will for the investment of $5000 for his benefit. Hence the codicil which declares that at his death, unless he leaves children, it shall, except $1000,' sink into the residuum. And the words of the codicil being subsequent to the words of the will, must be taken as indicative of the latest intention of the testator. (Sims vs. Douyhty, 5 Vesey, 247. 1 Jarman on Wills, p. 411, and note. 12 Wend. Rep., 602. 4 McCord, 151.)
    2. The known insolvency of Jacob S., the fact that his creditors would take what should be given to him, are sufficient reasons of themselves to lead the testator to such determination.
    Y. It could not have been the intention of the testator to have included Jacob S. in the same class with children by the second wife.
    He had received large advances, they had not. He had received already more than his portion of the paternal estate, they, nothing. He was insolvent and intemperate, had no peculiar claims on the testator, and it does not appear that the testator had any reason for preferring him above the rest; and even if he desired to do so, he could not, for Jacob’s creditors would have reaped the bounty.
    YI. The failure to except him nomvnatim, therefore in the eighteenth clause,, was a mistake or oversight, because such inclusion would do violence to the general intention of the testator; and a mistake in a will may be corrected, if the clear intention appears on the whole will. (Philipps vs. Chamberlaine, 4 Vesey Rep. 51.)
    YH. The further intention of the testator was, at the valuation of the estate at $80,000, to let the two classes of children share about equally in the estate, and the children of the respective classes to be as nearly equal in their proportions as possible; and that intention is clearly defeated if Jacob takes a portion of the residuum. (See Tabular Statement submitted.)
    
    VHI. The word “ children” in the 18th clause must be construed to mean “ minors,” literally “children,'” as contra-distinguished from persons of mature age. It is susceptible of such meaning, and should have it, if no other will carry out the manifest intention of the testator. (See the extent to which the court went in Smith vs. Bell, 6 Peters’ Reg., 68, in departing from the strict reading of language)
    
    . IX. The intention of the testator has been effectuated by the death of Jacob S. The $1000 have been paid to his widow, and $4000 have fallen into the residuum. It is unreasonable to say that the testator ever intended that Jacob’s widow or any person representing her should have more than the $1000. (See section 21 of Will, and 3d of Codicil.)
    
    X. Xo division of the residuum was intended to be made uutil the death of the testator’s widow.
    1. At an $80,000 valuation, on the testator’s death, there would be no residuum, after deducting the legacies, until the widow’s death.
    2. If there was, the same reason existed to impel the testator to postpone the division, as to postpone the payment of the legacies to the children.
    3. The punctuation sustains this view.
    XI. It is confidently insisted that the widow of the testator takes by implication a life estate in the residumn. The gift is to certain heirs after her death, and a devise to the testator’s heir after the death of “ A,” gives to A an estate for life by implication. (1 Jarman on Wills, pp. 464, 467.) And it is fair to suppose such to have been the testator’s intention, for she was not only the mother of “ the children” whose custody is committed to her, but also an executrix of the estate.
    XII. If it shall be held that Jacob S. is included in the residuary clause, and that the residuum is to be divided immediately, then it is proper to charge Jacob’s share with the amount of his indebtedness to the testator, at the time of his decease.
    W. W. Drinker, for Executors.
    
    The only interest Jacob S. Arcularius had in his father’s estate, under the will, was a naked life annuity, being the interest of a certain sum given in trust to the executors, and which upon his decease was to be paid to his right heirs; and this was changed by the codicil from his right heirs to his issue, should he have any; otherwise, with the exception of #1000, to be paid to his widow, it is to sink back into the residuum of the testator’s estate, and to be divided among the children, his or Jacob’s own brothers and sisters, as provided in the 18th clause, upon his death.
    This was the plain and intelligible intention of the testator, and placed beyond question by the following facts, which were not controverted but admitted by the petitioner.
    
      First. That Jacob had received during the testator’s life a larger amount in money than his share of the estate, at its estimated value, at the time the will was made.
    
      Second. That Jacob was in debt, and that judgments had been obtained against him for a considerable amount, and that the testator was aware of this when he made the codicil to his will. It is a well settled rule in the construction of wills, that the intention of the testator must be the chief guide, if it infringes no rule of law. (Watson vs. Foxon, 2 East. 42. Willes R., 296. Smith vs. Coffin, 2 H. Bla. 450. Ley vs. Ley, 3 Scott N. R., 168. 4 M. and W., 599, 607.)
    The first matter to be considered is the intention at the time he made it, and which must be carried into effect. According to certain settled technical rules, it must be governed by the will itself. (1 Talb. 208. 1 Vent. 204. Scott vs. Roach, 5 M. and S., 490. Festin vs. Allen, 12 Ib., 279. Theall vs. Theall, 7 Louisiana R. 220. 17 Wend., 393.)
    
      
      Second. If there should be any doubt, the intention must be construed as things stood at the time the will was made, (Smith vs. Bell, 6 Peters., 68. Salk., 235. Willes R., 297. 2 Cowen, 333,) and the intention of the testator must govern the construction.
    Jacob died soon after the testator, and before the will was executed; the estate remaining as the testator left it at his decease. It was not sold or any of the investments made as contemplated by the will. The amount which was to be invested in trust by the executors, to pay Jacob’s life annuity, was (with the exception of the $1000 given to his widow) merged in the estate, and formed a part of the residue and remainder. The only interest the widow has is (as with Jacob) in the income, and not in the corpus, of the investment. That is given to the children by her upon her decease; it is not to her during life, and upon her decease to be given over to her children.
    2d. The gift by the 18th clause to the children is a gift in futwro—not to be paid—as the words payable or to be paid are omitted, and the words “ to T>e eguall/y divided” among them upon the widow’s decease, used; it is therefore not a transmissible interest, and the testator undoubtedly meant, to annex time to the substance of the gift; and therefore the legatee’s right to receive his portion of the gift depends upon his being alive at the time fixed—i. e. at the widow’s death. (Hanson vs. Graham, 6 Vesey, 246. 1 Russ. Ch. Rep., 233.)
    And where the gift is immediate, but the payment postponed, it is contingent, and will fail, if the legatee dies before the day arrives. (2 Edwards C. R., 156. 4 Dessau, 314. Atk. 381.)
    So, if limited over after a life estate, it lapses upon the death of the remainder man before the determination of the life estate. (Driscoll vs. Ryan, 2 Dessau, R., 295.)
    TTT- It is the children by the widow, upon her decease, and those only who answer that description at that time, will take,—it is not to them and their heirs, or administrators. (Swinton vs. Legare, 2 McCord C. R. 440.) The fund is to be divided among them at the death of the widow—and any one who falls under the description of children at that time, is entitled to a share. (Barrington vs. Tristram, 6 Vesey, 345.) The word children does not in its proper sense extend further than the immediate descendants of the person named. It does not mean grandchildren, unless there were no children—none alive to answer that description, when the will was made.
    The postponement of the division is to a class of individuals until a period after testator’s death—every one answering the description, so as to come within the class, at the time fixed, will come in for a share. (Jenkins vs. Freyer, 4 Paige, 53.)
    IY. Where. there are two or more, when a legacy is to be divided share and share alike, and one dies, his share will lapse. (1 P. Wms., 700. 2 ib., 489. 2 Strange, 520.)
    And where a residuary estate is bequeathed to several in joint tenancy, if one or more die in the life-time or after the decease of the testator, before severance of the joint tenancy, the share of the decedent will fall to the others. (2 Atk. 220. 3 Vesey, 629—32. Webster vs. Webster, 2 P. Wms. 347.)
    When there is a devise to the children of the testator, if any die before the division takes place, the whole will go to the survivors. (Jackson ex Dem. Staats vs. Staats, 11 John. Rep., 337. 6 John. Rep., 185.)
    The 18th clause must be taken as it reads, and the ordinary sense is governed by the punctuation; nor can there be any reasonable doubt as to the purpose of the testator strictly to confine his estate to his children alone, and to shut out strangers from having any participation in it. He never intended that any part of it should go to Jacob’s creditors or his right heirs or issue. Nor is it to be presumed that he had any such idea, from any fancied or forced construction that could be put upon it. And the codicil to the will places this beyond reasonable doubt.
    S. P. Nash, for Claimant.
    
    I. That Jacob S. Arcularius is one of the residuary legatees by the express terms of the will, seems too clear for argument.
    There is no other way of construing the will. The bequest of the residuary estate is absolute to the children of testator’s wife, Phebe, and Jacob S. is one of those children. Any alleged intention to exclude him as a residuary legatee is the merest conjecture, based on other provisions of the will not in conflict with the residuary clause. Such conjecture should never be allowed to contradict the plain language of a testamentary disposition.
    II. The only question about which it would seem there could be any hesitation, is whether the residuary legatees can now require a distribution, or whether they must await the decease of the widow; and the difficulty here is raised by the punctuation of the residuary bequest.
    The plain meaning of the clause is, that the residuary estate is given to the children of his wife Phebe, and that the share set apart for her for life, is upon her decease to form a part of such residuary estate.
    There is no reason for delaying the distribution of the rest-of the estate till that period. In the meantime there is no disposition of it, by investment and accumulation, or otherwise, provided for by the will. Those who choose to, or are so situated that they can, live upon the estate in the meantime, will receive all its benefits, and the other legatees are left to the naked remedy of an account against Mrs. Arcularius, after her death, the other executor being in no way responsible (Clause twenty-second) for any default with which he is not personally chargeable.
    
      The law will not favor such an interpretation unless there is something stronger than a semi-colon to require it.
   The Surrogate.

The testator was twice married, and left issue of each marriage. After the bequest of his library and furniture, he authorizes, by his will, the sale of all his estate, real and personal, and directs one-third of the proceeds to be invested for the benefit of his wife during life, in lieu of dower. He then gave to each of his children five thousand dollars a-piece, and to those who were under age, two thousand dollars additional on attaining majority. The legacies to four of the children were absolute ; six were placed in trust till the legatees reached the age of thirty years, and that given to Jacob S. Arcularius was placed in trust during his life, and on his decease made payable to “ his right heirs.” He also provided that in case any of his children by his first wife should depart this life before his decease, without issue, that share should survive to the other issue of his first wife; and a similar provision was made in respect to the decease of children by the second wife.

It appears to have been the testator’s custom to give each of his children, on coming of age, the sum of two thousand dollars. In view of that fact, it is obvious that so far the will is exactly equal, treating each child exactly alike in respect to the amounts bequeathed.

The residue of his estate was disposed of in the following manner: “I give, devise, and bequeath all the rest, residue, and remainder of my estate to my children by my present wife Phebe, together with the share of my estate set apart for my said wife during her natural life, upon her decease, equally to be divided among them.” Jacob S. Arcularius was one of the testator’s children by his wife Phebe; he died shortly after the testator’s decease; but it is insisted that it was not intended he should have any benefit under this residuary clause, and I am asked to construe the clause so as to exclude him.

The first ground urged is, that the testator having placed Jacob’s legacy in trust during his life, he could not have intended to have given him an absolute share in the residue. Such an argument is very plainly satisfied by referring to the express words of the will. Besides, it is not an uncommon thing for a testator, after having secured by trust a sufficient sum for the support of a child for life, to leave the same legatee a portion at his absolute disposal. A bequest, by way of trust for life is not at all repugnant to a further bequest absolutely. It might lead to the inquiry in the present case, why the gift of the residue was not placed in trust as well as the legacy of five thousand dollars; but the same inquiry would be quite as pertinent in respect to six other legatees, whose bequests are secured by trust till the legatees attain the age of thirty years. The answer to all such suggestions is the will itself and the clear meaning of its language ; and where the terms are not ambiguous, resort cannot be had to extrinsic evidence to raise doubts as to the testator’s intention, in the face of his express testamentary provisions. (Wigram on Extrinsic Evidence, pp. 7, 8). Such evidence may be received to determine whether the words of the will, with reference to the facts, admit of being construed in their primary sense; but that being determined, and no ambiguity existing, the court cannot speculate about the testator’s intention in opposition to his will, as written.

On the face of the will I see no sign of ambiguity. The testator makes all his children equal, with the exceptions already noticed, giving them five thousand dollars a-piece— and forgiving them all advances—and then the entire residue is given to the children by his second wife, including her one-third on her decease. I do not see how it could be pretended with any show of reason, if the case depended on the will alone, to exclude Jacob from the gift of the residue. But a provision in the codicil is invoked in aid of this effort. By the third clause of the codicil, the testator directs the five thousand dollars placed in trust for Jacob, to be paid on his decease to his issue; but if he die without issue, one thousand dollars to be paid to his widow, and “ the remaining four thousand dollars to sink into the residuum” of his estate. It is urged that this clause shows the testator did not intend to give a share in this residuum to Jacob, because he here provides for the increase of that residuum out of the legacy in trust for Jacob, after his death without issue. The idea is, that a gift in remainder to a life-tenant of a share in a fund in which he has the life interest, involves an inconsistency— inasmuch as it is the gift of something to be paid after his decease. That point was presented in the case of Sweet vs. Chase, 2 Comstocks Rep., p. 73, where the testator gave his wife the rents of certain real estate, and a legacy of four hundred dollars, to be paid out of the proceeds of the same property when sold, but authorized a sale of the land only after his wife’s decease. The court saw no incongruity between the provisions, and recognized the validity of a legacy to be paid after the legatee’s death. The utmost that could reasonably be claimed from the clause of the codicil now under consideration, is a doubt as to the testator’s intention, that Jacob should share in the remainder, after his life estate, in the sum of five thousand dollars; and yet that doubt would seem to be removed by the ruling of the Court of Appeals, in the case above cited. But to hold, because of a doubt as to the right to share in a particular portion of the residue, that the legatee is to be excluded from other parts of the residuary estate, notwithstanding the gift is made in terms as explicit and unequivocal as possible, would violate some of the best established rules of construction. Effect should be given to every part of a will; and no portion is to be disregarded, unless entirely repugnant to another portion. The intention is to be gathered from the entire instrument, and if the several clauses can be harmonized, none of them will be rejected. It often happens that the effect of a subsequent clause has not carefully been considered with reference to previous dispositions. It might have been in the present case, if the testator’s attention had been directed to the question, whether he intended Jacob to share in the four thousand dollars which he provided should sink into the residuum, that he would have said “ no, let it go to his brothers and sisters.” But there can be no pretence that he did not know who his children were, and that by its own terms the residuary clause is just as applicable to Jacob as to any other of the decedent’s children by his second wife. And that being the case, Jacob is not to be excluded from that clause, because of doubts and speculations as to the meaning of another clause. That which is clear and express must of necessity overrule the uncertain and ambiguous. Were there ambiguity, therefore, in the codicil, it would not overturn a provision in the will entirely unambiguous. The rule is precisely the converse. A certain and definite gift is not nugatory, because of a subsequent provision of uncertain signification. It is a settled principle of construction not to disturb a prior gift any further than is absolutely necessary to give effect to a posterior qualifying disposition. (1 Jarman on Wills, 161, 165, 414.) There does not therefore seem to be any reasonable ground, in respect to the will in controversy, for questioning the right of Jacob to share in the residuary estate of his father, except as to the four thousand dollars, part of his legacy for life; and even as to that sum, the decision of the Court of Appeals, in Sweet vs. Chase, apparently removes all doubt.

It is insisted, however, that by Jacob’s decease before his mother, his interest in the residuary estate ceased, or rather survived to the benefit of such of the other children as should survive the mother. The residuary clause runs in this way: “I give, devise, and bequeath all the rest, residue, and remainder of my estate to my children by my present wife, Phoebe.” This, no doubt, gives a present vested legacy in the whole residue. But he continues, “ together with the share of my estate set apart for my said wife during her natural life, upon her decease; equally to be divided among them.” The argument is, that the words “ upon her decease” qualify the whole residuary disposition, so that none of the residue is given until the decease of the widow; she meanwhile taking a life-estate by way of implication. I can find no stronger reason upon which to base this violent conclusion, than the appearance of a semi-colon in the original will after the words upon her deceaseand it is almost needless to say that the construction of wills does not depend upon punctuation. I think the words “ upon her decease” do not make the gift of the remainder in the one-third bequeathed to the wife for life, conditional, and much less therefore is the gift of the rest of the residuary estate conditional. If that proposition should be entertained. in all its breadth, it would apply to the other children, in case of their decease before the widow, as well as to Jacob. But I am of opinion, in the first place, that the words “ upon her decease” qualify only the gift of the one-third in which the widow had a life-estate ; and in the second place that those words do not establish a conditional legacy; (Van Wyck vs. Bloodgood, 1 Bradford's Rep., 154); that they only affect the time of payment or distribution, not the time of vesting; and in the third place, that the term equally to be divided among them” establishes a tenancy in common. Inasmuch, therefore, as the gift of the general residue is immediate, and it is only the payment or distribution of the one-third invested for the widow for life that is postponed till her decease, the children by the second wife, including Jacob, as represented by his administrator, are entitled to an account and distribution.

I have not alluded to the facts stated in respect to Jacob’s insolvency, and habits, because I do not think the case admits of that class of extrinsic evidence. It is obvious, however, that those circumstances would rather have led to placing Jacob’s share of the residue under the same trusts as the legacy of five thousand dollars, than to excluding him entirely from the share. But the testator did not do that, and I cannot do it for him. There seems to be no indication of an intention to place Jacob on a footing with the children of the first wife. On the contrary, the twenty-first clause proves most distinctly that he intended to keep all the children by the first wife in a separate class from those by the second wife. Nor is there any ground for limiting the sense of the word “ children” in the residuary clause to that of “minors.” The twentieth clause shows the testator very well knew the difference between “ children” and “ infant legatees;” and the twenty-first clause, in providing for survivorship between the children of his first wife, among themselves, and the children” of his second wife, among themselves, totally forbids the idea, that by “ children” he intended minors only; for the children by the first wife were all of age. Perceiving, therefore, no reason for varying the natural reading and interpretation of the residuary clause, I must order an account and distribution. The distribution will be made without regard to the advances made to Jacob —the testator expressly declaring in the second clause of the codicil, that it was his will to “ forgive” him his debt on his acceptance, of the legacy of five thousand dollars, contained in the thirteenth clause of the will; and under the circumstances, the law will presume his acceptance. His death before the time the legacy was payable; the legacy being favorable; the absence of any proof of a refusal; the payment by the executors of one thousand dollars to his widow, and the present demand made by the administrator, are sufficient grounds for concluding a legal acceptance.  