
    Elizabeth Illensworth, as Executrix, etc., of Harriet M. Kemp, Deceased, Appellant, v. William P. Illensworth, Appellant, Impleaded with Herbert Mee and Others, Respondents.
    First Department,
    December 30, 1905.
    Will — gift of personalty followed by directions to invest and pay income construed as trust—when fees of guardian ad litem charged on infant’s share.
    A will which gives, devises and bequeaths the estate to certain brothers, sisters, nieces and nephews equally and then directs that the share due a brother J. “be invested by my executors for his benefit during bis natural life, and for the benefit of his wife and his issue after his death,” will be construed as creating a trust for the benefit of J. of that portion of the estate which is per- ' sonal property, remainder to J.’s wife and issue absolutely.
    
      Contra, as to such portion of the j>roperty as is realty the absolute devise in the first clause is not cut down hy the limitation in the second clause.
    The allowance granted to a guardian ad litem in an action to construe said portion of the will should not be charged on the whole estate, but only on the • interest of the infant child of J.
    Appeal by the plaintiff, Elizabeth Illensworth, as executrix, etc., of Harriet M. Kemp,-deceased, and by the defendant, William P. Illensworth, from portions of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county .of Mew York on the 29th. day of December','. 1902, upon the decision of the court rendered after a trial at the Mew'York Special Term. • ' '
    
      Jacob Fromme, for the appellants.
    
      Gerard Roberts, for the respondents.
   Ingraham, J.:.

The question presented' depends upon the construction to be given to the will of Harriet M. Kemp as affecting her personal property. The will is dated the 14th day of July, 1897, at which time there were living the testatrix’s husband, a. sister, brother, nephew and niece, her heirs' at law. Her husband died on thé '2Óth of" April, 1899, whereupon the testatrix, on the 13th of July, 1899, executed a codicil to her will. On the 6th of Mpvember, 1899, the testatrix died and on the 4th, of January,. 1900, the will and codicil were duly admitted to probate by the surrogate of the county of Mew York. Subsequently in September, 1901, the testatrix’s brother, John B. Mee, died intestate, leaving him surviving his widow, the defendant Emma W. Mee, and the. defendant Herbert Mee, his son and only next of kin, and letters of .administration were issued' to his wife; The Will first devised and. bequeathed to the testatrix’s husband all her property “to him absolutely and forever,” and then followed this, clause: “In the event of my husband and self"dying at one and the same time, or'' within a short period'of each other, I give,'devise and bequeath my estate to be equally divided between my sister Elizabeth Illénsworth, my brother John B. Mee, .my nephew William P. IllensWorth, and my- niece Florence O. Illenswor.th, share and share alike. . I hereby direct that the share due my brother, John B. Mee, be invested by my executors for his benefit during his'natural life, and for the benefit of his wife and his i§sue .after his'death.’’- • The eXe-7 cution by the testatrix of the codicil after the death of her husband was,in effect a re-execution, and publication of the will, as of the date of the execution of the codicil. The will must, therefore,; be construed as executed after the death of the "husband. The question presented; is, what interest John B. Mee and his. wife and child took in the personal property at the death of the testatrix.

There ean be no question but that the 1st clause of this provision under consideration would have given to the brother, John B. Mee, absolutely one-fourth of the testatrix’s personal property were it not qualified by the last clause, and the rule is well settled that an absolute gift is not cut down or' limited by subsequent language used in the will, unless the intent to do so appears in as clear and unmistakable language as that which expresses the absolute gift. (Banzer v. Banzer, 156 N. Y. 429.) The question is, what effect, if any, should be given to this direction : “ I hereby direct that the share due my brother, John B. Mee, be invested by my executors for his benefit during his natural fife and for the benefit of his wife and his issue after his death.” The testatrix evidently had a clear inten tion that something that she had given to her brother in a former clause of the will should not become his absolutely, but should be, as she said, “ invested ” for his benefit during his life. She had devised to her brother, John B. Mee, one undivided fourth of her real property, and had also bequeathed to him one undivided fourth of her personal property. We held in a case involving the title to the real estate which passed by the will that this provision did not -so clearly indicate an intention to limit the title to the testatrix’s real estate which passed to her brother that it cut down or limited the absolute estate granted, because the word “invested,” which was used to indicate the intention of the testatrix as to the portion of her estate that was intended to be affected by this clause, could not apply to real estate, where the testatrix gave to her executors or ■trustees no power of sale, and we did not, therefore, think that this subsequent clause h'ad the effect of cutting down the absolute devise to John B. Mee of the testatrix’s real estate. (Mee v. Gordon, 104 App. Div. 520.) * It was an apt word, however, to use in relation to personal property. It clearly indicated, I think, that'the testatrix’s intent was that, so far as her personal property was concerned, it should be kept invested during the life of her brother, John B. Mee, for his benefit; and I think this clause should be given the effect of cutting down the bequest of an undivided fourth of the testatrix’s personal property to her brother, John B. Mee, from an absolute gift to a gift of the income during his life. That she intended this clause to apply to something tiiat she had given to her brother is clear; and it "seems to me 'that the only thing that it could apply to was Mee’s share in the testatrix’s- personal estate. It is undoubtedly .true that there is some expression in the pie Vailing opinion when this'will was formerly before this court which would indicate that the court considered- that if this clause was held to be . effective, to cut down Mee’s interest it would be void as a violation of the provisions-as to the suspension of the absolute ownership of the' property; but. that case had relation ónly to the real estate, and it is clear from the opinion taken as a whole that we were only considering the application of this concluding" clause to the real - property of the testatrix. Assuming, therefore, that the testatrix intended that something should be'affected by this clause and that, from the language used it could only be her personal property, she' clearly intended to limit the interest that her brother should have in her personal property, to the beneficial interest therein during his life. "

The next question presented is, what became of that property upon his death." I think the answer to. this question, is perfectly clear. She wished the property invested for the benefit of John B. Mee during his life, and after his death for the benefit of his wife and issue. There is-nothing here to indicate that,it was her intention to continue the. investment after the death of her brother. There is no direction to invest or to keep invested, the property during the lives of her brother’s wife and issue, but the investment was to continue during the life -of John B. Mee, and was to be for the. benefit of his widow and issue after his death. If this clause.. had provided that the shale was to be invested by the executors for Mee’s benefit during his life, and paid to his wife and issue .after his death, there would be no doubt of the testatrix’s intention, and it seems to me that this is just what the testatrix intended. The result, I think, is that the testatrix clearly intended to cut down the interest given to her brother in the .personal estate to a beneficial use of that interest" during his life, and that'upon his death the estate thus kept invested during Mee’s life should go to and, be paid to his wife and issue upon his death; and this, I think, is the construction that we should -give to, this will. If the will was, as it is claimed by counsel for the executor, prepared by. a lawyer, he eértainly has admirably succeeded in concealing, the intention of the testatrix, and is entitled to the credit of having imposed a considerable expense upon the estáte, as well as considerable trouble upon the courts.

The appellant also objects to an allowance granted to the guardian ad litem. We think this allowance was properly granted, but it is not fair that the whole estate should bear the burden of determining this question as between the administratrix- of Mee and his issue. I think, therefore, that this allowance should be paid out of the interest of the infant, and not out of the whole estate, and that the judgment should be modified in that respect.

It follows that the judgment appealed from should be modified as before indicated, and as modified affirmed, with costs to the plaintiff as executor, to be paid out of the estate, and with costs to the guardian ad litem of Herbert Mee, to be paid out of the infant’s interest in the estate. •

O’Brien, P. J., McLaughlin, Clarke and Houghton, JJ., concurred. '

Judgment modified as stated in opinion,and as modified affirmed, with costs to plaintiff as executor, to be paid out of the estate, and with costs to guardian ad litem of Herbert Mee, to be paid out of infant’s interest in the estate.  