
    Louis Lese, Appellant, v. Orlando A. Miller and Others, Respondents.
    
      Will — gift of a resid/ua/ry estate to executors in trust with directions to divide it on a widow’s death — the title does not vest in the remaindermen until the death of the widow.
    
    A testator devised his residuary estate to his executors in trust to collect the rents, issues and profits thereof, and “to pay over the same, after deducting the necessary expenses for collection, to my beloved wife Mary Ann Miller during the term of her natural life. 5. After the decease of my said wife then to convey, assign, transfer and set over all the rest, residue and remainder of any estate, real, personal and mixed of whatsoever kind and description or wheresoever situated unto my children, including among said children my stepson, William H. White (being the son of my wife by a former marriage) in equal proportions, share and share alike (the issue of any of such children, who may have died before the death of my said wife, taking per stirpes the share that their deceased parent would have taken if living), to have and to hold the same to their own proper use, benefit and behoof forever.”
    One of the testator’s daughters died prior to the death of the testator’s widow, leaving surviving her a husband and an infant child; the child also died intestate prior to the death of the testator’s widow. The child’s father survived the testator’s widow.
    
      Held, that it was the testator’s intention to vest the title to the residuary real estate in his executors during the life of his wife, and to give the remainder to such of his children as should be living at the time of the widow’s death and to the issue of any then deceased child;
    That as the deceased child and her infant son had both died prior to the widow neither of them had any interest in the property.
    
      
      Appeal by the plaintiff, Louis Lese, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 6th day of December, 1901, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the plaintiff’s complaint and directing him to perform the agreement set forth therein and to accept a deed of the premises therein described.
    This action is brought for the purpose of recovering a deposit made by the plaintiff with the defendants upon the execution of a contract of the sale by the defendants to the plaintiff of the premises Ho. 117 Lewis street, in the city of Hew York, together with counsel fees and disbursements incurred by the plaintiff upon the examination of the title to said premises, upon the ground that the title to the same, tendered by the defendants to the plaintiff, was defective and unmarketable. Upon the trial all the material facts were admitted by a stipulation between the parties, from which stipulation the following appears: William H. Miller died' on the 23d day of March, 1870, seized of the premises in question and leaving a last will and testament, which was duly admitted to probate by the surrogate of the county of Hew York. He left him surviving liis widow, Mary Ann Miller, and four children, Orlando A. Miller, Mary A. Bailey, Caroline A. Mandeville (afterwards Caroline A. Adams), Han-iet Yan Ripper and a stepson, William H. White. .
    Harriet Yan Ripper died intestate on January 3,. 1874, leaving her surviving her husband and an infant son, Thomas Yan Ripper, who died intestate on the 14th day of April, 1875, leaving his father, Thomas Yan Ripper, who has since remarried.-
    The stepson, William. H. White, or William H. Miller, as he was also called, died intestate, December 3, 1896, leaving him surviving two children, Mary E. Maurer and William H. Miller. The widow above named, Mary Ann Miller, died February 3, 1899.
    The point in-dispute between the parties is the interest t-haf Harriet Yan Ripper or her issue.took under the will of the testator, William H. Miller; the plaintiff claiming that she took a vested remainder which descended to her infant son, and through him, at his death, to his father, Thomas Yan Ripper, and the defendants claiming that whatever interest she or her issue, took under., the will of her father was contingent and ceased absolutely upon the death of herself and her infant son. In his will, William H. Miller devises his residuary estate, real and personal, including the premises in question, as follows:
    
      “ III. All the rest, residue and remainder of my estate, real, personal and mixed of whatsoever kind or description and wheresoever situated, I give, devise and bequeath unto my executrix and executor' hereinafter named or the survivor of them m trust: 1. To collect, get in and receive all that part of such estate as may consist of money, stocks, bonds or similar securities, and to convert all of such securities into money. 2. To invest and reinvest the same in their joint names as such executrix and executor in good and substantial securities, consisting of United States bonds or bonds and mortgages on improved real estate in the cities of Hew York and Brooklyn worth at least double the amount of said bonds and mortgages. 3. To collect and receive the rents, issues and profits of the same and of so much real estate as I may be possessed of at my death. 4. To pay over the same, after deducting the necessary expenses for collection, to my beloved wife Mary Ann Miller during the term of her natural life. 5. After the decease of my said wife then to convey, assign, transfer and set over all the rest, residue and remainder of any estate, real, personal and mixed of whatsoever kind and description or wheresoever situated unto my children, including among said children my stepson William H. White (being the son of my wife by a former marriage) in equal proportions, share and share alike (the issue of any of such children who may have died before, the death of my said wife, taking per stirpes the share that their deceased parent would have taken if living), to have and to hold the same to their own proper use, benefit and behoof forever.”
    
      Emil Goldmark, for the appellant.
    
      Milton Hopkins, for the respondents.
   Hatch, J.:

As no two wills are alike there can be in the nature of the case no fixed rule for the construction of all. Each will must be construed as a de novo instrument, and while it is true that there are some general rules and canons of construction which are fixed and certain, the application of which will usually enable courts to arrive at an equitable and just conclusion, yet ultimately the question comes to rest upon the intention of the testator in the particular case, giving force and effect to the will as a whole, and in cases of ambiguity and doubt resort may be had to the surroundings and conditions of the testator and those affected by the will in order to properly interpret the-language used.

The will in the present case furnishes no exception to the general. rule. Its construction, so far as the rights and interests of these parties are concerned, depends upon the intent of the testator as expressed by the language used in the 3d clause of the will and its various subdivisions.

Neither the other parts of the will nor the conditions of the parties nor the circumstances surrounding the testator shed any light upon the subject. It is, therefore, to be construed solely with respéct to the language used.

This clause creates an express trust in the executors and vests title in them during the life of the widow to all of the property of the estate for certain purposes, There is no language used in the will which can be construed as a gift over to the children until after the death of the wife. Upon the death of the wife the direction is then ¡to convey the property to the testator’s children, share and share alike, the issue of any such children who have died before the death of the wife to take per stirpes the share that their parent would have taken if living. Harriet Van Ripper predeceased the widow, leaving as issue one child. It is clear that no property vested in Harriet, because it could not be vested in her and the executors at the same time. Consequently, as she took nothing, nothing could descend to her issue. The latter was subject to the same infirmity under which Harriet labored; he also died prior to the death of the widow, consequently he did not survive to the period of distribution, and nothing vested in him. This destroyed that branch of the family, unless it can be said that the husband of Harriet was her issue, and this will scarcely be claimed. The scheme of the testator seems to be plain and his -intention clear- to vest in the executors title to the property during the life of the wife and- to limit his gift over to the children who should be living at her death and to the issue of any child then dead who should survive the decease of the wife. This seems to bring the ease within the definition of a gift to a class as defined in Matter of Kimberly (150 N.Y. 90), and is in consonance with the construction applied to a clause of a similar nature in Dougherty v. Thompson (167 id. 472.)

As Harriet took nothing under the will nothing descended from her to her heir, and as such heir predeceased the widow he also took nothing, and consequently nothing could descend from either to the husband of Harriet when the period of distribution arrived.

It is the inevitable conclusion, therefore, that the persons who executed the contract to convey the real property had good title to the same and were authorized to convey it.

The decision of the trial court was, therefore, right and the judgment should be affirmed, with costs to the respondents.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

Judgment affirmed, with costs.  