
    George Ketchum, Appellant, v. Anita M. Ketchum, Defendant, Impleaded with George H. Pigueron and Others, Respondents.
    
      Will — a clause providing “in the event of the decease of either of my daughters,” following an absolute gift to the'daughters subject to a life estate in the testator’s widow — construed to refei■ to the daughters’ death before that of the widow.
    
    John P. Coffin, by the 1st clause of his will, gave to his wife certain real and personal property ‘ ‘ to have and .to hold during the time of her natural life.” By the 2d clause of his will he provided that “ at her (his wife’s) decease I direct that the property, both real and personal, heretofore mentioned and held by her, to be equally divided between my daughters Anne P. Ketchum and Mary Wolfe Ketchum.” ' By the 7th clause of his will he provided as follows: “ In the event of the decease of either of my daughters I direct that any part or portion of the property held by either of them—■ descend to their issue and placed in the hands and charge of a trustee if no surviving issue, the property to then pass to her sister and issue.”
    
      Held, that it was the intention of the testator, upon the death of his widow leaving the two. daughters surviving her, to devise the real property absolutely to his daughters, and that the words, “in the event of the decease of either of my daughters,” contained in the 7th clause, should be construed as applying to the death of either of the daughters within the testator’s lifetime or within the widow’s lifetime, and before the title became-vested absolutely in the daughters under the 2d clause of the will. '
    
      Appeal by the plaintiff, George Ketchum, from a judgment of - the Supreme Court in favor of the defendants George H. Pigueron and others, entered .in the office of the clerk of the^county of New .York on the. 20th day of October, 1904, upon the decision of the . court,, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.
    
      Edward M. Bliven, for the appellant.
    
      James A. Deering, for the respondents Pigueron and Atlantic Dock Company.
    
      Theodore Baumeister, for the respondents Bernstein and others.
   Van Brunt, P. J.:

This action is for the partition of certain real property. The-plaintiff claims that he and, the defendant Anita M. Ketchum are now - each seized in fee of- an undivided half part of the realty as ' tenants in common. The question involved arises under the will of 'one John P.. Coffin, who died in November, 1876, leaving a last will and testament dated January 2, 1875, which was admitted to probate on the 6th of December, 1876. The testator left surviving his-widow, Elizabeth 0. Coffin, his two children, Anne P. Ketchum and. Mary W. Ketchum, and three grandchildren, George ¿etchum, the plaintiff, and Elizabeth C. Ketchum, children of his said daughter Mary W. Ketchum, and Anita M. Ketchum, daughter of Anne P. Ketchum. ’

The said children of the testator, Anne P. and Mary W.'Ketchum, - conveyed their interest, in tile premises sought to be partitioned in this action to their mother by deed dated December. 30, Í876. Elizabeth O. Coffin conveyed said premises to George G. Williams, trustee, on the 17th of April, 1884. Elizabeth O. Coffin and George G. Williams conveyed-said premises to the Chemical National Bank pf New York by deed dated January 1, 1891. The Chemical National Bank conveyed .to Louis Bernstein, one of the respondents, the premises in question by deed dated April 18, -1900, and Bernstein conveyed the. same to the respondent George H. Pigueron-' ,by deed dated April 16, 1903.

Elizabeth O. Coffin died November 1,1894, leaving her surviving her said .two children, Anne P. Ketchum and Mary W. Ketchum. Anne P. Ketclium died on November 6,1895, leaving her surviving her only issue, Anita M. Ketchum, one of the defendants. Mary W. Ketchum died on December 24, 1901, leaving her surviving her only issue, her children, George Ketchum and Elizabeth C. Ketchum.

The premises in question belonged to said John P. Coffin and passed under his will, the question involved being whether his daughters took a vested estate in remainder, which estate became absolute upon the death of their mother, or whether such daughters took merely a life interest and the fee vested in their respective children upon their death.

The parts of the will of John P. Coffin which relate to the question under consideration are as follows :

“First. I give, devise and bequeath to my beloved wife the house and lot where I reside, situated in the city of New York, and known' as 106 East l'6th street, the furniture therein, together with each and every article of whatever name or description therein contained belonging to me at the time of my decease, to have and to hold during the time of her natural life.
“Second. I further devise and bequeath to my beloved wife all my personal property (save certain exceptions) which I particularize and set apart in my book of investments numbered one/ and at her decease I direct that the property, both real and personal, heretofore mentioned and held by her, to be equally divided between my daughters Anne P. Ketchum and Mary Wolfe Ketchum.”

He then by the 3d, 4th, 5th arid'. '6th paragraphs of his will gave certain specific bequests. By the 7th clause he provided as follows:

Seventh. In the event of the decease of either of my daughters I direct that any part or portion of the property held by either of them — descend to their issue and placed in the hands and chaige of trustee if no surviving issue, the property to then pass to her sister and issue.”

As will be seen, it is claimed on the part of the plaintiff that notwithstanding that the testator by the 2d clause of the will gave the premises in question upon the death of his widow absolutely to his daughters Anne P Ketchum and Mary W. Ketchum by the 7th clause of the will, he cut down the estate theretofore devised to a life.tenancy.

The cardinal principle which governs the interpretation of wills is that the intention of the testator is to be followed, and such intention must be gathered from the terms of the will, and resort ■may be had in certain circumstances to the surroundings of the testator to aid in the interpretation.

It seems to us to be clear that it was the intention of the testator upon the death of his widow to devise the premises in question absolutely to his daughters, and that the limitatioji contained in the 7th' clause was only td apply in casé the daughters died before the widow and before they became entitled, under the 2d -clause, to an absolute property in the premises in question. The whole scheme of the will indicates such an intention ujion the part of the testator; and construing the 7th clause in view of the rules, governing interpretation where the words “in the event of the decease” of a. devisee are used, that they ordinarily speak as of a death .within the ' lifetime of the testator, and enlarging that rule to the fullest extent, its requirements make necessary the interpretation that this limitation could not possibly have been intended to cut down the previous - absolute estate in case it became vested under the 2d clause of the will. . In order to give force and effect to all the clauses of this will,

. it is necessary to construe the: limitations contained in the 7th clause as applying to a death either .within the lifetime of the testator or within the lifetime of the widow before the title became vested absolutely in the daughters under the 2d clause of the will.- By so doing, we harmonize these two clauses of the will and undoubtedly carry out the intention of the testator:

We think, therefore, that it was the intention of the testator upon the death of his widow to devise this estate to his daughters absolutely and that they,' having survived the widow and having conveyed whatever title they had, there was nothing to descend to their issue upon her death. .

The judgment should be affirmed, with costs.

Patterson, Ingraham, McLaughlin and ■ Laughlin, JJ,, concurred.

Judgment affirmed, with costs.  