
    Matter of the Estate of Stewart C. Boyce, Deceased.
    (Surrogate’s Court, Lewis County,
    January, 1902.)
    Legacy — Vesting fails where futurity is annexed to the gift — The blood preferred to strangers, in construing a will.
    The fifth clause of the will of a testator, after creating a trust for his son, who died after him without ever having had issue and whose wife died before the husband, gave $2,000 to “ the wife of my said son ” in case he died without issue or descendants. The eighth clause directed that, if the son died without issue or descendants, the residuary estate, “ after payment therefrom of said legacy to his wife, if then living ”, should go to collaterals. The will nowhere mentioned the wife’s name.
    Held that the legacy never vested in the son’s wife and therefore her administrator was not entitled to it as against the remaindermen.
    That where a clause in a will was susceptible of two interpretations that one should be adopted which preferred persons of the blood to strangers.
    Stewabt 0. Boyce, a resident of Lowville, Lewis county, FT. Y., died February 25, 1889, leaving his last will and testament, dated 31st March, 1887, and a codicil, dated February 23, 1889.
    The will nominated Fred C. Schraub and George Sherwood as executors, and the codicil named Olmsby 0. Stowell as an additional executor thereof.
    Testator left surviving as his only next of kin and heir-at-law his son Halley S. Boyce, aged about twenty-seven years.
    The son then had a wife named Josephine, who was some years older than Halley, and who died intestate about May 1, 1894, while being treated and cared for as a patient at the St. Lawrence State Hospital at Ogdensburg, leaving the said Halley surviving, but leaving no issue of her marriage to him. Thereafter and March 27, 1901, letters of administration upon her personal estate were granted by the Surrogate’s Court of Lewis county to one Lewis FT. FTortham, who is now acting thereunder.
    The said Halley S. Boyce died in June, 1900', leaving no widow, descendant or descendants him surviving.
    Halley was a beneficiary under his father’s will, and was given a life estate in certain real estate situate in Lowville, which the executors were authorized to sell and convey upon the death of the son, unless sold prior to that event upon his request and with his consent, and the avails invested for his benefit.
    Hpon the death of Halley the avails of such sale were to be divided among and paid to his descendant or descendants, if he left any surviving, if not, the proceeds of such sale were to pass into and form part of testator’s residuary estate, to be disposed of as provided in the residuary clause of his will.
    By the 5th clause of his will, testator created a trust fund of $6,000, to be held by his executors, and the annual or semiannual income thereof to be by them paid.over to Halley, the son, during his lifetime, and the sum of $500 of the principal to be paid to Halley when he became thirty-five years old; and the further sum of $500 when he became forty years of age.
    That clause further provided that upon the death of the said Halley, if he should die leaving a child, children or descendants, testator bequeathed the sum of $1,000 of that trust fund to the wife of his son Halley, and the rest and residue thereof to the child, children or descendants of Halley; and that if the son died leaving no child, children or descendants him surviving, testator bequeathed the sum of $2,000 to the wife of his said son.
    The eighth or residuary clause of testator’s will is as follows:
    
      “ Eighth. All the rest, residue and remainder of my estate, including the proceeds and avails of the sale of my dwelling house on Elm street in said village of Lowville, should my said son Halley S. Boyce die without leaving issue or descendants as mentioned and provided in the fourth item of this instrument, together with the rest, residue and remainder of the fund or moneys set apart for my said son Halley S. Boyce, as mentioned and provided in the fifth item or clause of this instrument, should my said son Halley S. Boyce die leaving no issue or descendants, after payment therefrom of said legacy to his wife, if then living, I give, devise and bequeath as follows, to wit: to Pauline, the daughter of my brother Horace Boyce, the sum of fifteen hundred dollars ($1,500) and to Martha, the daughter of my brother Horace, the sum of two thousand dollars, and the balance, rest, residue, and remainder, unto my two brothers, John Boyce and Horace Boyce, and to my sister, Olive Becker, to be divided among and between them equally, share and share alike.”
    Ryel & Merrill, for executors.
    W. J. Fletcher, for administrator of Olive Becker, deceased, a residuary legatee.
    O. S. Mereness, for administrator of Horace Boyce, deceased, a residuary legatee.
    Louis B. Dewey, for John E. Boyce, a residuary legatee.
    Breen & Breen, for administrator of Josephine Boyce, deceased.
   Turner, S.

.Several questions have arisen during the hearing of this matter, but the paramount one at present, is the construction of the fifth and eighth clauses of the will of Stewart G. Boyce, the testator herein.

Counsel for the representative of the estate of Josephine Boyce contend that upon the decease of testator, the bequest of the $2,000 mentioned in the fifth clause or item of the will in question, vested immediately and absolutely in Josephine as the wife of Halley S. Boyce, the son of testator, and that the administrator is now entitled to that sum.

This claim is controverted by counsel for the residuary legatees.

At the time of the execution of the will Josephine was the wife of Halley, the son, and both survived testator.

The intent of the testator is to be ascertained from the language of his last will and testament in its entirety, and not from fragmentary portions thereof, and effect is to be given, if possible, to all the provisions, and no clause is to be rejected or interest intended to be given, sacrificed on the ground of repugnance, when it is possible to reconcile the provisions supposed to be in conflict. Taggart v. Murray, 53 N. Y. 233.

It is somewhat significant, that in the will in question, testator nowhere mentions by name the wife of his son.

This suggests the inquiry, did he, at the time he made and executed that instrument, have in mind, or intend, as the object of his bounty upon the decease of his son, the then living wife of Halley, or such wife as the son should leave at his death as his surviving widow? The wife (Josephine) of Halley, the son, died in 1894, and Halley six years later, no issue of the marriage having been bom to them, now if he had again married and had died leaving the second wife as his widow, what would have been her status under the will in question?

In the absence of ambiguity, reasonable certainty as to the beneficiary intended is an important factor in determining the validity of a bequest.

Testator’s will discloses that his dominant purpose was to provide for his son during his lifetime, and any descendant or descendants he might leave, and that in default of such persons, relatives of his blood should be the recipients ef his property, save a small legacy to a servant in his family, and the conditional bequest to his son’s wife.

To determine whether or not the contention of the learned counsel for the representative of the estate of Josephine is well predicated, reference must be had to the will in question, and the fifth and eighth clauses read and construed together, as may be done under well-settled rules of law.

The fifth clause relates to the trust fund for the benefit of the son, and contains this provision: — “ and upon the death of my said son Halley S. Boyce, I give and bequeath the sum of one thousand dollars of said principal so set apart and remaining at his death, unto the wife.of my said son, and the rest, residue and remainder thereof I give and bequeath unto the child, children or descendants of my said son Halley, * * * but should my said son Halley S. Boyce die without leaving him surviving child, children or descendants, then I give and bequeath the sum of two thousand dollars from said principal sum aforesaid, to the wife of my said son Halley S. Boyce.” The eighth or residuary clause is as follows: “ All the rest, residue and remainder of my estate,- including the proceeds and avails of the sale of my dwelling house on Elm street in said village of Low-ville, should my said son Halley S. Boyce die without leaving issue or descendants as mentioned and provided in the fourth item of this instrument, together with the rest, residue and remainder of the fund or moneys set apart for my said son Halley S. Boyce, as mentioned and provided in the fifth item or clause of this instrument, should my said son Halley S. Boyce die leaving no issue or descendants, after payment therefrom of said legacy to his wife, if then living, I give, devise and bequeath as follows.”

The law is well settled that if futurity is annexed to the substance of the gift, the vesting is suspended. Clark v. Cammann, 160 N. Y. 315.

Another well-settled rule is, that where a clause of a will is capable of two interpretations, the one should be adopted which prefers the persons of testator’s blood to strangers. While, as a general rule, the law favors the vesting of legaeiesi as soon as possible after the death of the testator, it is a question of intent; the will must he construed as made, and the intent of the testator as therein made manifest must control. Bowditch v. Ayrault, 138 N. Y. 222.

The provisions relating to testator’s bequest to his son’s wife are contained in the fifth and eighth, or residuary clause of the will in question, and they are clear and certain, and when read together, show beyond doubt or question, that survivorship of the wife upon the decease of Halley, the son, was a condition precedent, or a contingency which must happen before there could be any vesting of that legacy.

The intent of the testator is the paramount rule of construction, and if not violative of statutes or fundamental principles of law, it must prevail.

The intent and purpose of testator in the case at bar to limit, and to make the bequest to Halley’s wife conditional upon her survivorship is clearly expressed in the eighth or residuary clause, and cannot be disregarded.

It is clear to me there was no vesting of that legacy, as the condition, or contingency upon which it would become vested, never did, and could not happen, because of the death of the son’s wife prior to his decease, and that the $2,000 bequest to her is to be regarded as part of the residuary funds of the estate, and distributed accordingly.

It therefore follows that the contention of the representative of Josephine’s estate is not sustained.

Let findings and a decree be prepared accordingly.

Decreed accordingly.  