
    Annie M. Delaney, App’lt, v. Annie A. McGuire, Impl’d, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 17, 1891.)
    
    Will—Devise by implication.
    The will of a testatrix devised to her executor real estate in trust to use the income to support her niece during minority; it then proceeded, “ but in case my said niece should die before the age of twenty-one years, without lawful issue, and should not at the time of her death have lawful issue, then I give the said house and lot to my lawful heirs." The niece has arrived at the age of twenty-one years. Held, that the intention of the testatrix was, that the niece should, during her life, have the use of the property, and that upon her death it should pass to her children if she left any, and if not that it should go to the heirs of the testatrix.
    Appeal from order confirming report of referee respecting surplus moneys.
    
      Hamilton B. Squier, for app’lt; William J. Lardner, for resp’t.
   Van Brunt, P. J.

This proceeding was to ascertain the priorities of lien upon certain surplus moneys arising from the sale under foreclosure of a house and lot, No. 125 East Seventy-third ■street, in the city of New York, which was owned by one Margaret B. Duffy at the time of her death. The said Margaret died on the 14th day of March, 1882, leaving a last will and testament, which was duly proved before the surrogate of the county of New York and letters testamentary issued thereon to one James Boyle, "the father of the testatrix. In September, 1883, the said Boyle died, and thereafter, in February, 1884, letters of administration with the will annexed were duly issued to one Thomas Smyth, the brother-in-law of the testatrix. At the time of these proceedings the respondent, Annie A. McGuire, and Jane Smyth and James Smyth, infants, were the only heirs at law and next of lcin of the testatrix, and said infants claim a share in said surplus-moneys, the whole balance of which has been by the order appealed from awarded to the said Annie A. McGuire. The claims-above mentioned arise under the said will of Margaret B. Duffy r which is, so far as it affects this controversy, as follows:

First. That I hereby direct my executor hereinafter named to pay all my just debts, funeral expenses and testamentary charges as soon after my decease as the same can be done.
Second. I hereby give, devise and bequeath unto James Boyle as trustee of my niece, Annie McGuire, my house and lot of land situated on the northerly side Seventy-third street, between Lexington and Fourth avenues, and now known by the street number 125 East Seventy-third street, in the city of Mew York, to use the income thereof during the minority of my said niece, to pay the interest on the mortgage now on said property, and the taxes, insurance., water rents and repairs necessary on said premises, and after paying said charges, to use the balance, if any there should be, for the support, maintenance and education of my said neice; but in case my said niece should die before the age of twenty-one years, without lawful issue, and should not at "the. time of her death have lawful issue, then I give the said house and lot to my lawful heirs. I hereby authorize and empower the aforesaid, trustee of my said niece to sell and convey, by good and lawful deed, the house and lot if, in his judgment, it will be for the best interest of my said niece, at any time, for all cash or part cash and part mortgage.
And I hereby authorize and empower him to mortgage or lease the said house and lot as such trustee, if needful or necessary in his judgment at any time.
If the said trustee should exercise the power of sale contained herein as to the said house and lot, the same may be at public auction or private sale.
Third. I hereby authorize, empower and direct my executor hereinafter named to sell and convey by good and lawful deed or deeds all the rest, residue and remainder of my real estate at public or private sale as soon after my death as the same can be done for cash, or part cash, and part on bond and mortgage may remain as shall be agreed upon, the same to remain at lawful interest, and the proceeds of the sale of such real estate shall be invested by my executor on good real estate in the city of Mow York, and the income thereof used for the support of my father, and the support, maintenance and education of my niece, Jane Smyth, my nephew, James Smyth, and my niece, Annie McGuire,, and my executor hereinafter named is hereby appointed trustee to receive and disburse the said income and invest the said principal.

It is urged upon the part of the appellants that by the second clause of the will Annie McGuire only took an estate during her minority in the premises out of which the surplus proceedings arise, and it is claimed by the respondent, and was so reported by the referee, that upon her arrival at twenty-one years of age she became seized and possessed in fee simple of the premises in question.

There are no words of gift to Annie McGuire contained in the clause in question, but it is claimed that it was the manifest intention of the testatrix to give these premises to her upon her attaining the age of twenty-one years, and therefore she takes by implication. And we are cited to various cases in the English courts, and in our own, going to show that such construction is correct.

An examination of these cases, however, will show that in all of them there was some plain indication of an intention that the devisee should enjoy the whole estate. The latest case in our courts upon this subject is Masterson v. Townshend et al., 123 N. Y., 462 ; 34 N. Y. State Rep., 104, where it was held that there was a devise by implication. In that case the will contained a power of sale with a direction to pay upon the happening of a certain contingency the whole of the proceeds to the person to whom it was held there was a devise by implication. It was the plain intention that the party should, take absolutely upon the "happening of the contingency, and although there were no express words of gift except upon a sale, it was held that a gift was plainly intended.

In the case at bar there is not only no intention expressed of an ■absolute gift, but the language of the will expressly excludes such an intention.

The testatrix gives the premises in question to her executor as trustee of her niece, Annie McGuire, to use the income during the minority of her niece in the manner specified, and then says, “ but in case my said niece should die before the age of twenty-one years without lawful issue, and should not at the time of her death have lawful issue, then I give the said house and lot to my lawful heirs.” The said niece has arrived at the age of twenty-one years. It is plain that the time of death intended by the testatrix did not mean death during her lifetime, because the language is inapplicable to any such construction. Death at any time before twenty-one years of age, without lawful issue, gave the estate to the lawful heirs of the testatrix. The testatrix intended evidently that Annie McGuire should, during her life, have the use of this property, and upon her death it was to go to her children if she left any, if not it was to go to the heirs of the testatrix. This ■construction it seems to us is reinforced by the clause of the will next occurring after the provision referring to death during her minority; it says “ and should not at the time of her death have lawful issue, then I give, etc.” If the word “or” is substituted for the word “ and,” the meaning at once becomes apparent, and such was undoubtedly the intention of the testatrix. If she should die during minority without lawful issue, or should not at the time of her death, whenever it may occur, leave lawful issue her surviving, then the estate was to go to the lawful heirs of the testatrix. This shows an intention upon the part of the testatrix that Annie McGuire should enjoy this estate during her life, and if she left issue her surviving that she should have the right to dispose of the same as she saw fit, but if she died without lawful issue her surviving she could enjoy the estate during her life, it going upon her death to the lawful issue of the testatrix.

This interpretation is in harmony with the views expressed by the court of last resort in the case of N. Y..L. & W. R. R. Co... 105 N. Y., 89; 6 N. Y. State Rep., 851.

If the referee had seen that rule 64 of the general rules of practice had been complied with, as was his duty, and had required certificates of the clerk as to the appearances in the action and notice of claim to the surplus moneys, and proof of service of notice of the proceedings before him upon such persons, so that we could have seen that the proper parties had received notice of these proceedings, we might now make the proper order distributing this surplus, but as no attention seems to have been paid to the requirements of the rules as to notice, we can simply reverse-the order appealed from, with ten dollars costs and disbursements,, and remit the proceeding to the special term for further action, where it is to be hoped that it will be seen to that the proper evidence is produced jhat the parties entitled to notice have received the same.

This result to be, however, without prejudice to the right of' Patrick J. Lynch to claim payment of his debt out of the surplus, upon such proof as would charge the heir in the payment of this debt because of receipt of assets.

Daniels and Lawrence, JJ., concur.  