
    Wiilliam E. T Smith et al., Resp’ts, v. Lydia S. Floyd, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    'Will—Construction.
    By the will of a testator he gave a sum of money to his daughter with a request that she keep it for the benefit of her children; gave certain lands to his son “ during the period of his natural life, with the right and privilege of disposing of the same by will or devise to his children, if any he should have, and in case he should die without leaving any children, lawfully begotten, then, and in that case, I give and devise the same to the children of my daughter.” He also gave funds and money over and above legacies to his daughter. Held, that the testator’s intent was to convey the land to the son’s children and that upon the son’s death without will his children took a good title thereto.
    Appeal from interlocutory judgment overruling demurrer interposed to the amended complaint.
    Action for construction of a will and that it be adjudged that plaintiffs are the owners in fee simple of the whole of the real estate described and that the defendant be excluded from all claims and interest therein.
    
      Carter & Ledyard (George H. Balkan, of counsel), for app’lt; Clarence G. T. Smith, resp’t in person; Wilmot M. Smith (Timothy M. Griffing, of counsel), for other resp’ts.
   Barnard, P. J.

William Smith of Brookhaven, Suffolk county, died in 1857, leaving a last will and testament. He had two children, Egbert T. Smith, now deceased, and the defendant. The plaintiffs are the children of Egbert T. Smith, and the question between the parties arises under the will of William Smith. By this will the testator made provisions for his widow, now deceased. He gave the sum of $30,000 to the defendant, accompanied by a 11 desire that my said daughter shall keep the said legacy for the benefit of her children.’’ The testator then gave the lands described in the complaint to his son, Egbert T. Smith, ■“ during the period of his natural life, with the right and privilege of disposing of the same by will or devise to his children, if any he should have, and in case he should die without leaving any children, lawfully begotten, then, and in that case, I give and devise the same to the children of my daughter, Lydia, to them, their heirs and assigns forever.” Egbert T. Smith left no will, and the question is whether the lands upon his death went to his children. There is no residuary clause in the will beyond one which gives funds and money over and above legacies to his daughter, Lydia, absolutely. The true intent and meaning of the will is clear. The testator meant to convey this land to the children of Egbert T. Smith. He gave a power of disposition by will, but this was “to his children.” It was only in case that Egbert T. Smith died childless that the devise over was made to Lydia and her heirs. A construction which should disinherit these children of Egbert T. Smith, when the testator was so careful as to limit his power of disposition by will to them, would be unwarranted. Their father could not take away the estate from them by will; but he could by dying without one. If the intention to give the remainder to the children is clear, the law implies the gift to them. Baker v. Lorillard, 4 N. Y., 257; Matter of Vowers, 118 N. Y., 569; 23 St. Rep., 715; Jarman on Wills, 5 Am. Ed., vol. 2,133.

A gift over by the testator based on default of children of Egbert T. Smith,,strengthens the implication in favor of a gift to the children if the power of appointment be not exercised. Butler v. Gray, L. R., 5 Ch. App., 26.

The plaintiffs, therefore, took a good title to lands upon the falling in of the life estate under the will of William Smith.

The order overruling the demurrer to the complaint and the interlocutory judgment therein should be affirmed, with costs, but with leave to defendant to answer in twenty days on payment of costs.

. Dykman and Pratt, JJ., concur.  