
    Matter of Odell’s Estate. Caswell v. Slater.
    (Surrogate’s Court—Westchester County,
    March, 1893.)
    After giving the income of a fund to a nephew for life, testatrix bequeathed it absolutely to the daughter of said nephew should she survive him. Should she die without issue during his lifetime, the fund was given to other legatees. The daughter, a minor having no issue, survived her father. Held, that not having died without issue during the lifetime of her father, she took the fund absolutely, the same to be paid to her general guardian upon his filing the usual bond.
    By the eleventh clause of the will of the deceased, which was admitted to probate in July, 1889, she provided as follows: “I give, devise and bequeath unto my executor hereinafter named, one undivided fourteenth part or portion of my estate, in trust, nevertheless, to collect, receive and invest the same, and out of the rents and proceeds thereof, to pay over the interest and income thereof to my nephew William P. Slater, for and during the period of his natural life, and upon his decease I give, devise and bequeath said one-fourteenth part or portion of my said estate unto Ella Slater, daughter of my said nephew William P. Slater, should she survive him, to have and to hold the same unto her, her heirs and assigns forever.
    “In the event, however, of the decease of the said Ella Slater without issue her surviving subject to the trust hereby created, I give, devise and bequeath such undivided one-fourteenth part or portion unto my said nieces, Emma Caswell, Caroline Smith and Ophelia Weeks, share and share alike, to have and to hold the same unto them and each of them and to their heirs and assigns forever.”
    By a codicil an additional executor was appointed, and by the fifth clause thereof it was provided as follows: “ In the event referred to in "said eleventh item or clause of my said last will and testament of the decease of Ella Slater therein mentioned without issue her surviving, I give, devise and bequeath, subject to the trust by said eleventh item or clause created, the undivided fourteenth part or portion of my said estate referred to in said eleventh item or clause, to said Fordyce B. Caswell, and my nieces Caroline Smith and Ophelia Weeks in said eleventh item mentioned, share and share alike, to have and to hold the same unto them, and each of them, and to their heirs and assigns forever.”
    William P. Slater died in 1892, leaving his daughter Ella surviving. She was then and still is a minor, having a general guardian, and has no issue.
    
      Mitehell Tevy, for executors.
    
      Calvin Frost, for Charles J. Smith, general guardian of Ella Slater.
    
      Thomas J. Purdy, for Caroline Smith and others.
   Coffin, S.

The question to be determined is whether the one-fourteenth part of the estate of which William P. Slater had the use for life, now belongs to his daughter Ella, sometimes called Mary Ella, absolutely, or to the executors to hold until it shall be determined whether she shall die without issue; in other words, whether it shall be decreed to be paid to her general guardian or to be retained by the executors.

Counsel have, in their briefs submitted, discussed the question among other things as to whether the time of the death of Ella Slater referred to her death without issue during the lifetime of the testatrix, or subsequent thereto. The learned counsel for the general guardian has cited many authorities to sustain the affirmative of the proposition, and among others the cases of Livingston v. Greene, 52 N. Y. 118, and Quackenbos v. Kingsland, 102 id. 128, which appear to sustain that view. In behalf of the claim of Caroline Smith and others, their counsel has cited some decisions of courts of other states, to which access has not been had, as supporting that claim. Hot much consideration has been given to this question, for the reason that the matter is determinable upon another ground taken on behalf of the general guardian which seems quite unanswerable.

In construing wills it is well stated that the intention of the testator when discoverable must control. Here that intention, gathered from the will itself, appears to be perfectly plain. The use of the share is given to Ella’s father for life with remainder to her absolutely; but should she die without issue pending the trust, in other words, while he was alive, then to Caroline Smith and others subject to the same trust. But Ella has not died without issue subject to the trust, nor can she, seeing that the trust no longer exists, so that the distribution of this fourteenth among the other three is impossible of accomplishment. It was given to Ella absolutely if she survived her father, the cestui qui trust, but in case she died without issue during his lifetime, it should go to the others at his death. But he is dead. The trust is ended. Ella sur- ‘ vives, and she takes the share absolutely. Such is in accordance with the plain intention of the testatrix.

The decree will direct that the share be paid to her guardian, on his filing the usual bond.  