
    William H. Morehouse, Respondent, v. Frank H. Morehouse, in his Own Right, and as Executor, of the Last Will and Testament of Hiram Morehouse, Deceased, and Others, Appellants, Impleaded with Others.
    
      Will—a devise to aii unmarried woman and, if she subsequently marry ¡ to her issue- . and her husband—in case, of her death unmmrie'd she tabees a fee.
    
    A testator by his will provided, among other things-, as follows: “ All the rest, residue and remainder of my estate, real and personal, of every name and land whatsoever,. I give and. bequeath to my daughter, Effle May Morehouse, subject, however, to the following provisions: That no part of my real estate shall' he sold or in any manner encumbered during her lifetime, and in .case of marriage and subsequent death, anti should (she)--leave a child or children,, then I give the foregoing devise and bequest to her child or children; and provided, further, in' case- of her marriage and she. should die childless, but should leave a surviving husband, then I give to her husband, the one-third part of said residue and remainder of my estate and the remaining two-thirds to the surviv- . ing children of my brothers.” . '
    Efflé May Morehouse died unmarried.
    
      Held, that Effle May Morehouse was, under the provisions of said will, seized in . fee at the time of her death of the entire estate, and that at her death it passed to the devisees named in her wijl.
    Herrick and M-erwin, JJ., dissented.
    Appeal by the defendants, Frank II. Morehouse, in Ms own right . and as. executor of the last will and testament of Hiram Morehouse,, deceased, and others, from an interlocutory judgment of the Supreme . Court in favor of the plaintiff,, entered- in the office of -the clerk - of the county of Saratoga dn the 4th day of January,. 1898, upon the decision of the court rendered after a trial. at the Saratoga Special Term, directing the partition of lands as prayed for in the complaint.
    The will of Hiram Morehouse, referred to in the opinion, is as follows
    “' I, Hiram Morehouse, of the town of Charlton, in the county of Saratoga and State of Hew York, do make, publish and declare this my last will and testament as follows, to wit:
    “ I give and bequeath to my brother, Charles M. Morehouse, all dues and demands that I now have or may hereafter have against him. I give and bequeath to my nephew, Francis A. Morehouse, my gold watch and chain. I give and bequeath to John H. Closson, two thousand live hundred dollars, the same to be deducted from the amount that may be due on a certain mortgage in my favor, executed by Thomas Closson and said John H. Closson. All the rest', residue and remainder of my estate, real and personal, of every name and kind whatsoever, I give and bequeath to my daughter, Effie May Morehouse, subject, however, to the following provisions : That no part" of "my real estate shall be sold or in any manner encumbered during her lifetime, and in case of marriage and subsequent death, and should  leave a child or children, then I give the foregoing devise and bequest to her child or children, and provided further, in case of her marriage and she should die childless, but should leave a surviving husband, then I give to her husband the one-third part of said residue and remainder of my estate and the remaining two-thirds to the surviving children of my brothers.
    “ I herewith dispose and commit to my nephew, Francis A. More-house, the sole care, custody and guardianship of. my daughter, Effie May Morehouse, until her marriage or until she attains the full age of twenty-one years, and I hereby authorize and direct him to appropriate any amount necessary to provide her a comfortable support and maintenance, arid algo for a good and finished education. I also commit to him the care, control and mariagemerit of all my real estate during the minority of my said daughter,- and during her minority and also during her lifetime there shall be expended in each year at least fifty dollars in necessary repairs.
    
      “ I direct that all the clothing, ornaments and jewelry that belonged to my deceased wife shall be preserved and kept for my ■daughter, .Effie May, and also that no part of my household furniture or cooking utensils shall be sold .except those not required for family use. . .
    “ I hereby constitute and appoint -my nephew, Francis A. More-house, sole executor of this, my last will and testament, hereby revoking all former wills by me made. •
    “In witness whereof, I have hereunto set. my hand and seal this fourth day of July, in the year one thousand eight hundred and ■eighty-ohe. .
    “HIRAM MOREHOUSE. [l. s.‘] ”
    ' Effie May Morehouse died, leaving neither a child nor a husband surviving her, she never having married.
    
      James L. Scott, for the appellants, Guy B. Manzer and Victoria M. Manzer.
    
      J. W. Houghton, for the appellants, Frank H. Morehouse and Sarah A. Morehouse.
    
      Alex. J. Thomson, for the respondent.
    
      
      
         Sic.
      
    
   Parker, P. J.:

The question presented in this case is,.whether the children of the brothers of- Hiram Morehouse, deceased, took under his will any. interest in the real estate sought to be partitioned in this action. .The plaintiff claims an interest therein under the provisions of such will. The- defendants appealing claim that Effie May Morehouse, his only child and heir at law, took under, such will the whole title to such premises, and that through her will such title has been devised to them. .

The provisions of the will under which plaintiff claims have been •carefully considered by this court, and we are not all agreed as to .their meaning and effect. But a majority of the court have reached the conclusion that under the will Effie May Morehouse, the daughter, at the time of her death, was seized of the whole estate, and-that .her devise thereof to the appellants vested in .them the. entire interest thei’ein. That being so, the plaintiff had no interest whatever' in the premises, and his complaint for the partition thereof must necessarily be dismissed.

We have not overlooked the rule that the intention ef the testator is to control in construing the will, and that sueh intention may be ascertained from- an inspection of the whole will, and from such extrinsic circumstances as are pertinent and lawfully before us ; nor have we' given to any of the language used a technical or restricted meaning calculated to defeat the testator’s plain intent. Without entering into a long analysis of its provisions, it is sufficient to say that, in our opinion, the testator has given to his- daughter the fee in the whole estate, subject, however, to its being divested in the event that she should marry and die, leaving a child or children, or die childless leaving a husband surviving. Neither of those events having happened, the fee so given her was never divested, and she was at liberty to devise the same.

The judginent should be reversed, and the complaint dismissed, with costs to the appellants.

All concurred, except Herrick and Merwik, JJ,,, dissenting.

I am compelled to dissent from the views of the court in this case, and the following is a brief statement of my reasons :

It would appear from the judgment appealed from that the trial court held that, after providing for a life estate in Effie May More-house, the testator made no valid disposition of the balance of his-estate, but as to it died intestate.

• I am unable, to take that view of the testator’s will.

There is much learning in the books and cases in regard to the. construction of wills, but it does not seem to me profitable to enter into any lengthy discussion of the various rules laid down for the construction and interpretation of wills.

The interpretation and construction of each will depends upon its own phraseology.

The primary rule is, that the intention of the testator, where it is not contrary to law, must be carried into effect.

We must seek that intention .in the language of the will itself, and in sueh surrounding circumstances as are properly applicable. If we can ascertain it, then we know what the testator’s will is, and must enforce it.

•Of the will of Hiram Morehouse, in this case, we can say as was said in the case of Stimson v. Vroman (99 N. Y. 74, 79), “ The will is very unskillfully and bunglingly drawn, and we must arrive at the intention of the testator as well as we can.”

Without repeating the phraseology or discussing the various provisions of the will, I think it apparent from a reading of the whole will, that it was the intention of the testator, Hiram Morehouse, to give only a life estate to his daughter, Effie May Morehouse. It is eqiially apparent that he intended, in the event of his daughter dying without children, that two-thirds of the residue of the estate should go to the children of - his brothers. Such being the testator’s intention, and such intention not being contrary to law, ñor in conflict with any other portion of the will, it seems to me that the will here is effectual to give two-thirds- of the residue of his estate to the children of his brothers, his daughter having died childless.

It was also his intention that, in the event of the marriage of his daughter, her husband, if he survived her, should take one-third of his estate; but the testator omitted to make any final disposition of that one-third of his estate in the event of liis daughter dying without having been married. Having omitted to make any such disposition, such one-third descends to the heirs of the testator according to the Statutes of Descents, and could be disposed of by such heir or heirs by will or otherwise.

It follows from this that one-tliird of the estate passed by the will of Effie May Morehouse, and that the remaining two-thirds should be divided between the children of the brothers of Hiram More-" house, share and share alike, and the judgment appealed from should be modified accordingly.

Merwin, J., concurred.

•'Judgment reversed and complaint dismissed, with costs.  