
    David Thomson, as Trustee, etc., Resp’t, et al., App’lt, v. Emma C. Hill et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 17, 1895.)
    
    1. Will — Construction—Vesting.
    Where the will does not in terms give the corpus of the estate to the executors, but provides that, on the death of one of the beneficiaries named therein, the residue of the estate shall be equally divided among certain persons, such residue vests in the residuary legatees at the death of the testator.
    2. Same.
    Where the language is clear and expressive of an intention to confer an absolute interest, in terms which beyond question would so confer it, the estate thus created is not to be cut down or destroyed by the addition of equivocal expressions in another portion of the will having a contrary tendency.
    Appeal from a judgment construing a will.
    
      Noah Tebbetts, for app’lts, Emma C. Hill and others; Louis A. Noble, for app’lt Mary Hanson ; Henry A. Prince, for app’lts Hattie E. Beardslee and others; Jacob F. Miler and A. E. Woodruff, for resp’t Gilbert M. Husted.
   O’Brien, J.

This action was brought to obtain a construction of the will of Benjamin Lord; who died in 1851. Of those mentioned in the will who survived him, Caleb Knapp died in 1851, Lavinia Knapp died in 1863, Mary Yan Yeghten died in 1875, and Sarah Louisa Reed died in 1886. The testator having alienated the property mentioned in the third clause of the will, and the trust mentioned in the second clause having determined, there is left for construction the fourth clause, which reads as follows:

“Fourth. Upon the death of the said Sarah Louisa Reed, it is my will that the whole of the rest, residue, and remainder of my estate, both real and personal, be equally divided among the same persons, and in the same manner, as directed in the next preceding article of this my will.”

That article is as follows:

“Third. Upon the death of Mary Yan Yeghten, aforesaid, it is my will that my store, number one hundred and forty-seven (147) Cedar street, be sold, and the proceeds thereof and arising therefrom be equally divided among my brothers and sisters, and Lavinia Knapp, wife of the said Caleb Knapp, in the same manner as if the said Lavinia were my own sister, and I had died intestate; and in case either of my brothers or sisters, or the said Lavinia Knapp, shall then be dead, leaving surviving any descendant or descendants, that then, and in such case, such descendant or descendants shall take the share or portion which would otherwise have belonged to such parent, the share of said Lavinia Knapp being subject to life interest of the said Caleb Knapp therein. The income alone of the said share of Lavinia Knapp shall be paid to her said husband during his natural life, and after his death to the said Lavinia Knapp, and after her death her share be divided among her heirs.”

The testator having parted with the Cedar street property during his lifetime, and the other clauses of the will having relation only to income, it is conceded that the distribution of the entire corpus of the estate, and the interest which Lavinia Knapp took therein, which is the sole question presented for our determination on this appeal, are controlled by the construction to be given to the clauses or articles quoted. At the outset it is important to determine when the vesting occurred. On the one hand, it is insisted that it was on the death of the testator; and, on the other, as strenuously urged that it was postponed until the death of Sarah Louisa Reed, which was the time fixed for distribution. Reading the other clauses of the will, and keeping in view that the corpus was not in terms given to the executors, — who were only given the power to sell any portion of the real estate “in order to distribute and divide the same,” thus rebutting the inference that the corpus was vested in the executors, — we think that the vesting occurred upon the death of the testator, and that the interests of the various persons are to be determined as of that date. As said by the presiding justice of this court in the case of Jaudon v. Hayes, 79 Hun, 458, 455; 61 St. Rep. 268.

•“It is undoubtedly the rule in the construction of wills to favor the vesting of estates, and that, where all other things are equal, such a construction will be adopted as will coincide with this rule.”

Although the distribution was postponed until the death of Sarah Louisa Reed, and thus the right to possession and enjoy: ment was likewise postponed until that time, this in no way militates against the force of the rule which in all cases will incline the court, other things being equal, to adopt a construction favoring a vesting, rather than a suspension, of a gift or devise,

Assuming that the vesting took place at the death of the testator, the question remains as to what interest, if any, Lavinia Knapp then took in the corpus of the estate ? Did the testator intend that she should have only a life interest or a share absolutely? If the former, then the provision would be void, because he had already created one life estate therein for Sarah Louisa Reed, and a second for Caleb Knapp; and, if the view urged by the appellants-is sound, that there was a third life- estate for Lavinia Knapp, with remainder thereon to her heirs, it would be void because in contravention of the statute. Were this view adopted, she, for the reason stated, took no interest in the corpus of the estate, even though the vesting took place at the death of the testator.

The contention that Lavinia Knapp took only a life estate is based upon the last sentence of the third clause of the will, which reads:

“The income alone of the said share of Lavinia Knapp shall be paid to her said husband during his natural life and after his death to the said Lavinia Knapp, and after her death her share to be divided among her heirs.”

If this language stood alone, and expressly applicable to the corpus, there would be much force in the argument. In the construction of a will, however, it is not proper to take isolated portions or sentences, but the will as a whole must be read with a view to determine the intent of the testator. As thus read, in terms as expressive as language can make it, he placed Lavinia Knapp in an equally favorable position with his brothers and sisters; and, were it not for the sentence last quoted, the other portions of the third clause of the will, which should be read as though incorporated in the fourth clause, would seem to provide that upon the death of Sarah Louise Reed the property should be “ equally divided among my brothers and sisters, and Lavinia Knapp, wife of the said Caleb Knapp, in the same manner as if the said Lavinia were my own sister, and I had died intestate; and, in case either of my brothers or sisters, or the said Lavinia Knapp, shall then be dead, leaving surviving any descendant or descendants, that then, and in such case, such descendant =or descendants shall take the share or portion which would otherwise have belonged to such parent, the share of said Lavinia Knapp being subject to the life interest of the said Caleb Knapp therein.” With language so expressive, we think it would be doing violence to the declared wishes of the testator to hold that, the absolute interest which was thus given to Lavinia Knapp, subject to the life interest of her husband, Caleb Knapp, and subject likewise to be divested had she left descendants, — which it is conceded she did not, — is, by the last sentence of the third clause, above quoted, to be cut down to a life interest, and thus prevent her from obtaining an equal interest in his estate with his brothers and sisters, in the same manner as if she were “ his own sister, and he had died intestate. ” The rule to be applied where a fixed interest has been given, and subsequent language in the will is resorted to for the purpose of cutting such interest down, has been well expressed by Judge Peckham in the late case of Washbon v. Cope, 144 N. Y. 287, 297 ; 63 St. Rep. 716, as follows :

11 We are confronted, in the first place, by the well-settled rule that courts refuse to cut down an estate already granted in fee •or absolutely when the supposed terms of limitation are to be found in some subsequent portion of the will, and are not in themselves clear, unmistakable, and certain, so that there can be no doubt of the meaning and intention of the testator.”

Applying this rule, we think the provisions in the will that Mrs. Knapp should share in the estate of the testator the same as though “ she were his own sister, and he had died intestate,” is not to be destroyed by language subsequently used, which it is not shown was intended by the testator to qualify or destroy the absolute terms in which the share or interest was given. As said in 2 Jarm. Wills (Am. ed.) p. 470 :

“ It seems that, where the testator first gives the residue in terms which would beyond all question confer a vested interest, the addition of equivocal expressions of a contrary tendency will not suspend the vesting.”

So it may be said with respect to the character of the interest which one takes, as to whether it is a life or absolute interest, where the language is clear and expressive of an intention to confer such absolute interest, in terms which beyond question would so confer it, the estate thus created is not to be cut down or destroyed by the addition of equivocal expressions in another portion of the will having a contrary tendency. Caleb Knapp having died, therefore, before the time fixed for distribution, Lavinia Knapp took absolute vested interest in Benjamin Lord’s estate, which was “descendible, devisable, and alienable in the same manner as if it had been an estate in possession”; and, she having left no descendants, and it being conceded that she transferred the same will to Gilbert M. Husted, the judgment in awarding the one-eleventh to him was right.

Some exception has been taken to the finding of fact that “ the descendants, heirs, and successors of the various parties in interest are as stated in allegation six of the complaint,” upon the ground that the same is erroneous and improper. And a similar criticism is indulged in that the provision in the decision and judgment that interest vested in “ the descendants, heirs, legatees, and devisees of those of the beneficiaries who died subsequent to the death of the testator” is also erroneous, because the claims of the classes mentioned are exclusive and conflicting. While these criticisms may be justified, no injury has thereby been done appellants. They are immaterial, and do not destroy the force and effect of the conclusion reached by the judge at special term upon the main question presented for his consideration, and again raised upon this appeal, as to what share, if any, Lavinia Knapp, took in the estate of Benjamin Lord, deceased, and which, under her will, was transferred to Gilbert M. Husted Equally without force is the error claimed in the awarding of costs to the latter. We think it was entirely within the"discretion of the court below, with the exercise of which, upon the facts shown, we should not interfere.

Judgment affirmed, with costs.

All concur.  