
    In the Matter of the Judicial Settlement of the Account of Proceedings of Ann Wiley and Others, as Executors, etc. of George Wiley, Deceased. Ann Wiley, Individually, and Others, Appellants; Eliza E. Roxbury, as Administratrix, etc. of Charles W. Roxbury, Deceased, and Others, Respondents.
    First Department,
    March 9, 1906.
    Will—residuary clause -construed — absolute gift cut down by subsequent. limitation— when next of kin of deceased residuary legatee not entitled to share in residuary estate.
    When a will and codicil, after making specific bequests, gives, devises and . bequeaths the whole residuary estate to the testator's wife and to specifically named sisters, nephews and nieces, share and share alike, “and in case of the . death of either my beloved wife, my sisters, my nieces or nephews before the. - whole of my estate shall be divided, then I direct the said residuary to be divided among the survivors only share and shar'e alike," the general gift contained in the first, part of said residuary clause is limited by the restriction contained in the latter portion. Hence, the next-of kin of a residuary legatee who has died before.the division of the residuary estate are not entitled , to take, but the whole must be divided "among the survivors of the residuary legatees named.
    A gift absolute in form may be eut down by a subsequent limitation disposing of the same property in a different manner upon the happening of a contingency.
    As said will in other clauses effected an equitable conversion of the. realty, into money, and by the carrying out of specific trusts postponed the division of the residuary estate, the whole instrument taken together shows an intention on the part of the "testator to leave the residuary estate to the survivors of the legatees named.
    Houghton, J., dissented, with opinion. .
    Appeal by Ann Wiley, individually, and others from certain portions of .a decree of the Surrogate’s Court of the county of ¡New York, entered in said Surrogate’s Court on the 26th day of June, 1905.
    
      Francis S. Williams [Clarence L. Barber of counsel], for the appellants.
    
      Hamilton & Beckett [ William H. Hamilton of counsel], for the respondent, Eliza E. Roxbury, as administratrix, etc.
    
      Warren McConihe, speeiál guardian for the infant respondents, Grace'E. Boxbury and others.
   Clarke, J.:

"The sole point involved on this appeal is the proper interpretation of the residuary clause of testator’s will. George Wiley died October 15, 1902, leaving a will dated June 13, 1899, and a codicil thereto dated July 5, 1901. His estate, consisting of both real and personal property, amounted to about $350,000. He left a widow, no children,.and collateral relatives. After providing for his debts, funeral and burial expenses, a specific devise ■ of his house with a gift of $5,000 to his wife, testator made gifts by the .use of the same language in separate clauses, of pecuniary legacies and annuities, in favor of a sister-in-law, his two sisters, two nieces and two nephews, such'gifts being of specified amounts “ payable as so.on after m.y decease .as may be .convenient, and the further sum of (specifying) dollars per year for the period of. ten years after my decease.” A like annuity was given to one George Gibson. The sums thus given to these legatees outside of their annuities,aggregate .$15,000, and'the annuities themselves, figured for the ten years, aggregated $43-,500. After making several further pecuniary gifts aggregating $10,000, the will in the 22d clause directs the executors “ to set apart out of my estate a sum sufficient in principal to pay all the annuities that I have heretofore bequeathed in this my will,” and in the 23d clause directs and empowers the executors to sell any and all real estate of which I may die possessed (except the house given to his wife) and to convert the same into cash or mortgages.” By the ,25th clause of the will, as executed, he, provided that if any of the annuitants should die the amounts of said annuities should be paid to their next of kin or legal representatives during the time limited, but apparently having been advised that this provision was ‘ illegal as- suspending the absolute ownership for more than two lives, by his codicil he revoked said 25th clause and provided: “In case any of the beneficiaries to whom I have bequeathed any sum in this my will, either payable as soon after my death as may be convenient, or payable to them in ten annual installments, shall die before they become entitled to the whole or any part of the said bequests given to them under my said will, then I direct that such part of the legacy bequeathed to them herein which cannot or has not been paid to them, by reason of their death, shall be paid to their next of kin or legal representatives as soon after their respective deaths as may be convenient to my executrices and executors, it being my intention -that the said sum given to the various legatees and payable in ten annual installments shall not be held in trust for a period longer than the lives of the said legatees respectively.”

The 26th clause is as follows: “ All the rest, residue and remainder of my property and the interest which may be received from the sums set apart to pay the legacies hereinbefore devised, I give, devise and bequeath to my beloved wife, Ann Wiley, my sisters Mary Wiley and Elizabeth Wiley Gibson, my nieces Minnie Gibson and Sarah Boxborrow, and, my nephews Charles Boxborrow and Frank Assmus, to' be divided among them share • and share alike, and in case of the death of either my beloved wife, my sisters, my nieces or nephews before the whole of my estate shall be divided, then 1 direct the said residuary to be divided among the survivors only share and share alike.” > ,

It is conceded .that whexi the ■ testator wrote Boxborrow he intended Roxbury. All of these residuary legatees were alive at the date of the. death of the testator, October 15, 1902. One of them, Charles W. Roxbury, was killed on July ll, 1903. At the time of said Roxbury’s death no part of the residuary estate had been divided by the executors among the. residuary legatees. Roxbury left surviving him a widow and four infant children. The executors when they came to make a division and 'distribution of the residnary estate divided it between the six remaining legatees. The learned surrogate has determined that Charles W. Roxbury having outlived the testator, became, upon the death of the latter, immediately entitled to an indefeasible vested one-seventh interest in ‘ such first part of .the residuary estate and its proportional share of the net income, of such estate from the date of the death of the testator, together with one-seventh of any interest that accrued before liis death from the sums required to be set apart to pay the annuities. This part of ' decedent’s estate, which, represents all that diaries W. Roxbúry is entitled to under the residuary clause of the will, passed upon his death to his administratrix and she is now entitled to receive the same.” Three of the six surviving residuary legatees appeal from so much of the decree as puts into effect the surrogate’s interpretation of .the clause in Controversy.

In Williams v. Jones (166 N. Y. 532) the court said: The intention of the testatrix must be. our absolute guide in construing her will. Such-is the mandate of the statute, and that principle is so-firmly established by the decisions of this and of her -courts as to render any citation of authorities needless.” Examining the will at bar we find the childless testator intent upon caring for his wife, his two sisters,*his sister-in-law, two nephews and two nieces. For we may dismiss the, specific legacies for small amounts from this consideration. To his wife he gave absolutely his house and its effects and $5,000. To the six others who were the object of his special care he gave various sums outright. To these six he also gave annuities for ten years after his decease. He then provided that in case of the. death of any of the beneficiaries to whom he had bequeathed any sum in his will before they had become entitled to the whole or any part of the said bequests, such part of the legacy bequeathed- should be paid' to their next of kin or legal representatives as- soon after their _ respective deaths- as may ' be convenient. - Having by codicil expressly revoked the 25tli clause- of the will. which had attempted to continue the annuities of the next of kin" or legal representatives of the annuitants in case of their death before the expiration of the term limited by the provision last cited, making the principal vest in the next of kin immediately on the death of the annuitant, he specifically in said ■ codicil ratified and confirmed his said will in each and every particular, except as modified by the codicil. He, therefore,,- clearly had in mind, so far -as the specific, bequests and. the annuities were concerned, the possibility of the death of said beneficiaries, both- before his own decease and also , thereafter and before enjoyment, and as to such specific legacies and annuities provided that they should not lapse but should pass to the ' next of kin. But when it came to the disposition of the bulk of" his estate, the residuum, “ all the rest3 residue and remainder of my property and the interest which may be received from the sums set apart to pay the legacies,” his purpose- was quite different and was . expressed in language so clear and apt as to leave, as it seems to me, no room for argument as to its. intent.. This estate lie intended ■ his .wife and the six relatives named to share and en joy. He knew them. He was concerned about them. These were the chosen objects of his bounty. - For their children, born.or nnborn,.or more remote kin, he had no care. And in express terms, he provided tliat if any of them should die before distribution, then the residuary should be divided among the survivors only, share and share alike. It is quite true that if the residuary clause had stopped in the middle there would have been a complete and absolute gift, title to the appropriate share in the residue would have vested at the time of the death of the testator, no matter how much time might have elapsed before distribution, and would have been transmitted to the next .of' kin of any residuary legatee dying before such distribution. But the said clause did not stop in the middle, but, following a comma, it went on, and in case of the death of either my beloved wife, my sisters, my nieces or nephews before the whole of my estate shall be divided, then I direct the said residuary, to be. divided among the Suiwivors only share and ¡share alike.” We are to interpret the will of the testator, not to make a will for him. We are to find h'is intent from the language he used. The last expression. of his desire as to the distribution of the greater part of his estate was that it should go to the survivors only of the carefully enmner ated objects of his special care when the time for distribution came. We have no right to erase those words from Iiis will.

There is no legal objection to this scheme of the testator. There was by the will an absolute conversion of the real. estate into personalty as of the time of the testator’s death, and the several distributees took their interests as money and not as land. The title to the shares vested upon the death of the testator in the residuary legatees, subject to a limitation over to the survivors in case of death before the period of distribution. In Robert v. Corning (89 N. Y. 225) the court said: “ The postponement of the distribution, which was contemplated, was for the convenience of the estate to enable the executors advantageously to convert the property. * * ■ * ' The limitation over to the issue of any child dying before the distribution, was the limitation of a future contingent estate to such issue.” In the will at bar a conversion of the real estate into cash and mortgages was required. The executors were given full discretion “ to determine whether the said property shall be sold at public or private sale for all cash cr part cash or part mortgage.” The several bequests of specific amounts were all made payable at the convenience of the executors. These provisions indicate a knowledge on the part of the testator that the settlement of this estate would require time and that he intended such a deliberate settlement as should secure the best returns from the property sold. These provisions strengthen the conclusion I have reached and lend great forcé to the words “in case of the death * * * before the whole of my estate shall be divided.” It is settled beyond question that where there is a devise or bequest to one person in terms which would pass the fee or an absolute estate, if there were no words of limitation, and there is a subsequent provision giving the same estate to another upon the happening of a contingency, the devise or bequest over will take effect. In Norris v. Beyea (13 N. Y. 273) it was held that “ There is in truth no repugnancy in a general bequest'or devise to one person, in language which would ordinarily convey the whole estate and a subsequent provision that upon a contingent event the estate thus given should be diverted and go over to another person. The latter clause in • such cases limits and controls the former, and when they are read together, it is apparent that the general terms which ordinarily convey the whole property are to be understood in a qualified and not an absolute sense. * *■ * So familiar is tile doctrine that a limitation may be engrafted upon a devise in fee, that it is that circumstance which forms the distinction between remainders and executory devisees.” In Tyson v. Blake (22 N. Y. 558) it was said : “A general bequest of personal. estate like a fee in lands, can be subjected to a limitation over on a condition which is not too remote. If the direction is that it shall go to another beneficiary on á contingency which must happen at the death of the first taker, the limitation is within the rules of law and will be sustained.” In Oxley v. Lane (35 N. Y. 340) the will read: “ I will, order, devise and bequeath that if either of my said sons or daughters, or if both of my said, grandchildren shall, die without issue before the final distribution of my estate at the end of twenty-five years after my decease as aforesaid, that the share of the party or parties so deceased shall- be shared equally among all my other children, share and share-alike.” . The court said: “ It qualifies the absolute title and estate previously given to. such deceased child or grandchildren by a conditional limitation in favor of all the children of the testator then surviving. * * * This subsequent limitation over is not repugnant to the prior devises and bequests, although they are in language denoting an absolute gift of the whole estate in fee, and it will be sustained as a valid executory gift * * - It is hardly necessary to cite the numerous, cases supporting executory devises and conditional limitations. The rule lias not been changed by later cases. The appellant’s counsel invokes the rule of construction that when there is a bequest to one person absolutely, and, in case of his death without issue to another, the contingency'referred to is a death in the lifetime of the testator. But this rule has only a limited operation and cannot be extended, to a case where a point of time is mentioned other than the death of the testator to which the contingency can be referred, or to a case where a life estate intervenes, or where the context of the will contains language evincing a contrary intent. (Vanderzee v. Slingerland, 103 N. Y. 47; Matter of N. Y., L. & W. R. Co., 105 id. 89; Fowler v. Ingersoll, 127 id. 472; Mead v. Maben, 131 id. 255; Mullarky v. Sullivan, 136 id. 227.) ” (Matter of Denton, 137 N. Y. 428.) “ Where after a devise and bequest in language denoting an absolute gift of the whole estate in fee, there is a subsequent limitation over in the event of the first devisee dying under age and without issue, the gifts are not repugnant to each other and the latter is a valid executory gift.” (Williams v. Jones, 166 N. Y. 522.)

Mr. Roxbury having died before the period of distribution arrived, the conditional limitation over took effect and his administratrix acquired no right to the share of the residuary estate bequeathed to him. The-right to one-seventh of the residuary estate which had vested upon the death of the testator was divested by the happening of the contingency provided for.

So much of the decree of the surrogate as is appealed from must be reversed, with costs to the appellants payable out of the estate, and the proceeding remitted to the surrogate for action in accordance with the views herein expressed.

O’Brien, P. J.," Ingraham and McLaughlin, JJ., concurred; Houghton, J., dissented.

Houghton, J.

(dissenting):

Charles W. Roxbury having survived the testator, I think he had a vested interest in such of the residuary estate as existed at the time of his own death, and that the "decree of the surrogate was right and should be affirmed.

T}ie intention of the testator seems quite plain. After the payment from his estate of the specific legacies which he had given, and taking out the provision for his monument, he must be presumed to have realized that a large residuum, consisting of more than half of his estate, would be left. The annuities or annual payments provided were not to be made from income for they were expressly stated by the testator in his codicil to be legacies payable in ten annual installments. It was, therefore, incumbent upon the executors to set apart $43,500 to meet these annual payments of $4,350 as they fell due each year for a period of ten years. This sum could not be permanently invested, because it was necessary to pay out one-tenth part of it annually. The testator undoubtedly assumed that his executors might be able in the prudent management of tire estate to realize some income from it. A small rate of interest could be had by depositing it in some' trust,company or like institution, and it wouldbe their duty so to do. The amount of interest which might be realized from this fund could not be finally determined until the period of ten years had elapsed. Mor could the executors finally account until the end of that time, unless all those whose legacies were payable in ten annual installments should sooner die, which it is not to be presumed the testator contemplated.

The 26th clause begins with the words, “ All the rest,' residue and remainder of my property,” which is' quite comprehensive enough tp take in all property not otherwise disposed of. But the ■ testator desired to specify particularly that there was another ■residue which might accrue after his death, to wit, the- interest which might be received on the $43,500, and so he uses the words, “ and the interest which may be received from the sums, set apart to pay the legacies hereinbefore devised,”' meaning, of course, the legacies- which were payable in. ten annual'installments.' This Was -an artificial residuum ' as distinguished from the general residue of bis estate, and it. seems to me that he had-this artificial residuum only in mind when he provided that in case of the death of any of his named residuary legatees before the whole of my estate shall, be divided, then I direct the said residuary .to be divided among the- survivors only- share and share alike.”

The words last quoted are those which raise the ambiguity with, respect to the residuary clause. By apt and comprehensive words previously used the testator gave all the remainder of his estate to named residuary legatees share and share alike. This absolute gift should not be cut down to one dependent upon survivorship to a time when the estate should be finally settled, unless the language used compels such construction. The ambiguous language can well 'lay hold of, and apply to, the artificial residuum arising from interest on the fund held to pay the installment- legacies, and I think it should be confined to that and not be held to apply to the general residuary estate, thus avoiding repugnancy and the cutting, down of the superior estatd previously given. Mor is it doing any violence to the language so to do. The words “ before the whole of my estate shall be. divided ” imply that a division of'a part, to wit, the. general residuum, had been previously made. The words “the said residuary ” may well be said to apply in the mind of the testator to something other than all the “rest, residue and remainder” of his estate, and to apply to the uncertain and comparatively small sum- of money which should be accumulated from the moneys held1, to pay the installment legacies, which amount, insignificant in comparison with the general residue of the estate, he desired should be distributed amongst those' residuary legatees who should be living at the time the amount was finally ascertained and the last and final accounting had.

This view is strengthened by reference to the body of the will. The testator had no children, but he did have a wife. He gave her the house and its furnishings and $5,000 only "in money, but no annuity or legacy payable in installments. He was not as liberal with her as he wás with his sister Mary, for he gave her $5,000 and $1,000 a year for ten years. The testator must have known that estates are liable to be involved in litigation, and that a final accounting by executors and a distribution of funds is uncertain in time and may be long postponed. Strictly speaking, the whole of the estate, under the provisions of the will, could not; lie divided until ten years had elapsed. To my mind it seems to be doing great violence to the apparent intention of the testator to say that he meant that his wife, for whom he had made so meagre a .provision, should have nothing during a possibly prolonged administration of the .estate, to maintain herself and the home he had devised to her, and no right to any part of his residuary estate unless she survived a final division and distribution by his executors. Manifestly he was also solicitous for the welfare of his sisters and those of his nephews and - nieces who were mentioned in his will. He could not have intended that, although they survived him, their right to any part of his estate should be postponed to any such indefinite and possibly distant period as the time when “ the whole of my estate shall be divided.”

The law favors the vesting of estates; and limitations over, and vesting subject to be divested, and postponing enjoyment of property, will not be imputed to a testator if it can be avoided. It is only where the testator has unequivocally expressed his intention to-create thesé artificial estates that the courts- will adjudge them to exist. It quite frequently happens that authorities are of little aid in construing a will, but it would appear that the principles laid down in Manice v. Manice (43 N. Y. 303) and Shangle v. Hallock (6 App. Div. 55) were quite applicable to the language found in the will under consideration. .

The interpretation put upon the will by the prevailing opinion seems to me at variance not only with the intention of the testator, but with the language which he used, and I, therefore, dissent from a reversal of the decree and vote for its affirmance.

Decree reversed, with costs to appellant payable out. of estate, and proceedings remitted to surrogate. Order filed. 
      
      
        Sic.
      
     