
    James Bunyan, Respondent, v. Mary F. Pearson and Others, Defendants, and John C. Pearson and Mary K. Pearson, Appellants.
    
      Will — devise to a woman for life and, after her death to her son, if he shall survive her; but if he dies without issue before his mother, then to her — effect of the death of the son, leaving issue, before his mother — devise by implication not favored.
    
    Isaac Keeling, by his will, gave to his daughter, Mary Pearson, wile of John Pearson, a life estate in certain real estate, and .further provided as follows: “ And after her decease I give and devise all my said lands and real estate to John IC. Pearson, youngest son of said Mary Pearson, and to his heirs and assigns forever, if he shall survive his said mother; but in case he shall die without lawful issue before the death of his said mother, then I give and devise the said lands and real estate, and every part thereof, with the appurtenances, unto the said Mary Pearson, her heirs and assigns forever.” John IC. Pearson died, leaving his mother, Mary Pearson, him surviving, and also leaving two infant children.
    
      Held, that the use of the words “if he (John IC. Pearson) shall survive his said mother ” did not indicate an intent on the part of the testator that the children of John IC. Pearson should take the remainder, devised to him, in case he died during the lifetime of his mother, with sufficient clearness to create an estate in them by implication.
    
      Semble, thqt John IC. Pearson took a vested remainder in the mortgaged premises, defeasible only in the event of his death before his mother, without issue, and that, as he left issue, the remainder was vested;
    That the law favored the vesting of estates, and, as it was conceded that the testator intended effectually to dispose of all his real property, that the words “if he shall survive his said mother” should be deemed to refer to the period of the enjoyment of the estate, and not to the time of its vesting;
    That the words in question should be read with the following sentence, viz.: “ But in case he shall die without lawful issue, before the death of his said mother, then I give and devise the said lands * * * unto the said Mary Pearson, her heirs and assigns forever,” and that this latter sentence indicated the intent of the testator to be that, if his son left issue, he should take the estate, whether he died before or after his mother;
    That the testator gave the estate to John K. Pearson, his heirs and assigns forever," and that it was only in the event of John IC. Pearson’s dying before his mother, without lawful issue, that he devised the lands to another person.
    Appeal by tlie defendants, John 0. Pearson and Mary K. Pearson, by their guardian ad litem, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 27th day of January, 1896, upon the decision of the court confirming the report of a referee, as adjudges and directs that the piece or parcel of land first described in the complaint in this action, and first described in the said judgment, and “ containing thirty-nine acres, one-quarter and nineteen rods of land, exceptiiig and reserving from the above-described premises that portion thereof heretofore conveyed to Eliliu Pliinney, supposed to contain about fifteen acres, more or less,” be sold, and that the referee execute to the purchaser or purchasers thereof, a deed of the premises sold ; and also from so much of the said judgment as directs the payment of the moneys or any part thereof arising from such sale of the first described parcel of land, to the plaintiff or his attorney; and also from so much of said judgment as adjudges that the said defendants John C. Pearson and Mary K. Pearson, and all persons claiming under them or either of them, be barred and foreclosed of all right, claim, lien and equity of redemption in the said first-described parcel of land.
    
      Frank L. Smith, for the appellants.
    
      J. William Taylor and Lynn J. Arnold, for the respondent.
   Putnam, J.:

This action was brought by the plaintiff to foreclose two mortgages given by Mary Pearson, John K. Pearson and Mary E. Pearson, his wife. The mortgagors claimed title to the premises in question under the fifth clanse of the will of Isaac Keeling, deceased, which is as follows: I give and devise unto my daughter, Mary Pearson, wife of John Pearson, of the town of Roseboom, in the county of Otsego aforesaid, all that certain farm and lot of land, situate in the town of Otsego, on which I now reside, and also the wood lots, and all my real estate wheresoever situated, with the appurtenances, fo have and to hold the same, and every part and p'arcel thereof, for and during her natural life; and after her decease, I give and devise all my said lands and real estate to Jolm K. Pearson, youngest son of said Mary Pearson, and to his heirs and assigns forever, if he shall survive his said mother; but in case he shall die without lawful issue before the death of his said mother, then I give and devise the said lands and real estate, and every part thereof, with the appurtenances, unto the said Mary Pearson, her heirs and assigns forever.”

John K. Pearson, after the execution of said mortgages, died, leaving said Mary Pearson surviving him, and also leaving two infant children, the defendants John 0. Pearson and Mary K. Pearson, who, by their special guardian, answered, setting up that the fifth clause of the will of Isaac Keeling, deceased, above quoted, gave to John K. Pearson only a contingent remainder in the mortgaged premises in case he survived his mother, which could not vest imtil her decease; that as he had died in the lifetime of his mother, leaving lawful issue, they have taken an absolute title in fee to the said premises, subject to the life estate of Mary Pearson.

The trial court held that, under the provisions of the will, John K. Pearson took a vested remainder in the mortgaged premises, defeasible only in the event of his dying before his mother without issue, and that his children took the same by descent from him.

If the words “ if he shall survwe his said mother ” had been omitted from the said fifth clause, no doubt could have been entertained that the remainder, devised to John K. Pearson, vested at once on the death of the testator. [Avery v. Everett, 110 N. Y. 317; Coe v. De Witt, 22 Hun, 428 ; Grout v. Townsend, 2 Den. 336.)

But it is claimed by the appellants that those words evince an intent on the part of the testator that the estate devised to John K. Pearson should not vest unless he survived his mother; that the estate so bequeathed was contingent upon such survival; that the testator evidently meant to dispose of all his real estate, and from that fact, and the language used, a devise of such remainder to the appellants, the children of said John K. Pearson, is implied.

In Post v. Hover (33 N. Y. 593-599) Judge Denio, in delivering the opinion of the court, says: “ To devise an estate by implication, there must be such a strong probability of an intention to give one, that the contra/ry cannot T)e supposed. (Jarman on Wills, 465.) Devises by implication are sustainable only upon the principle of carrying into effect the intention of the testator, and unless it appears, upon an examination of the whole will, that such must have been the intention, there is no devise by implication.”

To the same effect see Macy v. Sawyer (66 How. Pr. 381); Rathbone v. Dyckman (3 Paige, 9).

I am unable, after a careful consideration of the language used in the said fifth clause, to discover that it discloses so clear an intent on the part of the testator that the appellants should take the remainder devised to John K. Pearson in case of his death during the lifetime of Mary Pearson, that the contrary cannot he supposed. Nor are we cited .to any authorities holding that, in case of such a devise to one, and, if he die without leaving children, to another—should the former die leaving issue, such children take the estate by implication.

There are authorities holding to the contrary. In 2 Redfield on Wills (2d ed. 204) it is said: “ A bequest to one, and if he dies without issue, then over, will give no estate to his issue by implication, although the probable intent is very obvious.” And in 1 Jar-man on Wills (6th ed. 555, *524) the author uses the following language : “ As no implied estate to the issue arises (as we have seen) from a limitation over, in case of the prior devisee or legatee dying without leaving issue at his decease, it should seem that there is the same absence of authorized ground for implying a gift to children from a similar limitation over in default of these objects.

“Accordingly, in several cases it has been considered that a bequest to a person, and if he shall die without having children, or without leaving children (which means without having had a child born, or without leaving a child living at his decease), then over, does not raise an implied gift in the children; but the parent takes an absolute interest, defeasible on his dying without having had, or without leaving, a child, as the case may be. The rejection of the implication in such a case is not (as already pointed out) productive of any absurdity, for it supposes the testator, by making the interest of the legatee indefeasible on liis having or leaving a child, to intend that if there are children, he shall have the means of providing for them.

“ And even where the language of the will necessarily confines the interest of the parent to his fife, the children will not generally be held to take by implication: it is extremely probable that the testator intended a benefit to them; but. si voluit non dixit. But it seems, that in such a case the court will lay hold of slight circumstances to raise a gift in the children, and thereby avoid imputing to the testator so extraordinary an intention as that the devisee or legatee over is to become entitled if the first taker have no child, but that the property is not to go to the child, if there be one, or its parent.”

In Lytle v. Beveridge (58 N. Y. 592), cited by the counsel for the appellants, the devise made by the testator to his son J., considered by the court in that case, was in terms of a life estate. Hence, the opinion of Allen-, J., referred to in points of counsel, has no application to this case.

I conclude that no estate by implication was created in favor of the appellants under the will in question, on the death of their father during the lifetime of Mary Pearson.

As to the question whether the finding of the court below — that John K. Pearson, under the will in question, took a vested remainder in the mortgaged premises, defeasible only in the event of his death before his mother without issue — should be sustained, there may be some doubt.

It is proper to bear in mind that, in construing a will, the object is to ascertain the intent of the testator (Bowditch v. Ayrault, 138 H. Y. 222). The court can to that end “ reject words and limitations, supply them or transpose them, to get at the correct meaning.” (Phillips et al. v. Davies et al., 92 N. Y. 199.) Also, the law favors the vesting of estates. A remainder will not be held contingent in cases where it may be held vested consistently with the intention of the testator. (Moore v. Lyons, 25 Wend. 119-144.) If the language of the will in question should be construed as claimed by the appellants, the remainder provided for therein could not vest during the joint lives of Mary Pearson and John K. Pearson.

It is conceded that the testator by his will intended to effectually dispose of all his real property. Yet, if the conclusion above arrived at is correct, viz., that there was no estate by implication in favor of the appellants, unless the finding of the trial court is sustained, such real estate, except as to the life interest of Mary Pearson, remains undisposed of.

Bearing in mind the evident and conceded intent of the testator to effectually dispose of all his real property, and the fact that this intent can only be effectuated by the construction placed upon the fifth clause of his will by the court below and the rule laid down in Phillips et al. v. Davies et al. (supra), I am inclined to think that the words in said clause “if he shall survive his said mother,” should be deemed to refer to the period of enjoyment of the estate, and not to the time of its vesting. Those words should be read in connection with the following sentence, viz.: “ But in case he shall die without lawful issue before the death of his said mother, then I give and devise the said lands * * * unto the said Mary Pearson, her heirs and assigns forever.” The sentence last-above quoted may be deemed to indicate an intent of the testator that his son, leaving issue, shall take the estate, whether he died before or after his mother. The said fifth clause of the will may be construed as meaning that the remainder shall vest in John IC. Pearson on the death of the testator, but if said John shall not survive amd shall die loefore his mother without having lawful issue, the land shall go to said Mary Pearson; that the testator gave the estate to John K., his heirs md assigns forever ; and it was only in the event of John K.’s dying before his mother, without lawful issue, that he devised the lands to another person.

These views are sustained by the English cases of .Phipps v. Aelcers (9 01. & Fin. 583) and Finch v. Lane (L. R.'[10 Eq.] 501): The provisions of the will considered in the case of Finch v. Lane were like those of the will under consideration. In 1 Jarman on Wills (6th ed. 785, *768, *769) the author makes the' following remarks as to the case of Finch v. Lane (supra): “ In Finch v. Lane the rule was applied to a case where the apparent contingency was, not the devisee attaining a particular age, but his surviving the person to whom a prior life estate was devised. The devise was to the testator’s wife for life, with remainder, as to part, to his brother for life, and from and immediately after the death of the wife, subject to the brother’s interest in the part, to M. in fee if she should be living at the death of the wife, but if M. should die before the wife without leaving issue, then to other persons; M. died before the widow, but left issue; and it was held by Lord Romilly that the case was governed by Phipps v. Aelcers, and that M. took a vested remainder.”

We are not referred to any cases ill this State where the question involved has been passed upon.

On the authority of the cases last cited and for the reasons above suggested, I conclude that the judgment should be affirmed, with costs,

All concurred, except Parker, P. J., and Lakdox, J., dissenting,

Judgment affirmed, with costs.  