
    KEARNEY v. COSGROVE et al.
    (Supreme Court, Appellate Division, First Department.
    December 3, 1915.)
    1. Wiles <§=>527—Construction—Residuary Clauses—Death ob Residuary Legatee—Ebbect.
    The testator willed, his business to his three sons in equal shares, to one of them subject to a trust on certain conditions. By a further clause he gave to his daughter an amount equal to one-fourth of the value of that business and provided methods for its payment, and that if she left no issue the share should go to her surviving brothers. By another clause the testator gave to the plaintiff, a son of one of testator’s daughters who died before the making of the will, a stipulated sum, to be paid on his arrival at the age of 21 years, providing that, should he die prior to that time, the sum should go to the surviving children of the testator. By a residuary clause the testator gave one-fpurth of his property to each of Ms four children, upon conditions to one of them providing that, “in the event of the death of my son William J. without leaving lawful issue him surviving then to pay over the principal and accumulations thereon, if any, to his surviving brothers and sister, share and share alike, per stirpes and not per capita.” Held that, by the above provisions of the will, it was the intention of the testator that the plaintiff should take only the sum given him, and should not participate in the residuary clause in the event of the death of the son William J. before the testator, but that in such case the residuary property should go to the surviving brothers and sister of William J.
    
      <@=>Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    
      [Ed. Note.—For other cases, see Wills, Gent. Dig. § 1140; Dec. Dig. ©=>827.]
    2. Wills <@=>470—Construction—Intent of Testator—Whole Will.
    The intention of the testator must be ascertained by construing the will as a whole, and not by construing an isolated portion of it.
    [Ed. Note.—For other cases, see Wills, Cent Dig. § 988; Dec. Dig. <@=>-170.]
    3. Wills <@=>449—Construction—Intestacy—Presumptions.
    It is presumed that a testator intended to dispose of his entire estate, and not to die intestate as to any part of it.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. § 985; Dec. Dig. C=>449.]
    Laughlin and Dowling, JJ., dissenting.
    <gss>Eor other cases see same topic & KEY-NUMBER m all Key-Numhered Digests & Indexes
    Appeal from Special Term, New York County.
    Action by Matthew J. Kearney against John C. Cosgrove and others. From a judgment construing a will against plaintiff, he appeals. Affirmed.
    Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGH-LIN, CLARKE, and DOWLING, JJ.
    Myles A. Walsh, of New York City, for appellant.
    Richard Kelly, of New York City, for respondents.
   McLAUGHLIN, J.

This action was brought for the partition of certain real estate of which Patrick H. Kearney was seised at the time of his death. He died February 4, 1913, leaving a will which was admitted to probate and letters testamentary issued to the executors therein named. The appellant is a son of the testator’s daughter Jennie, who died prior to the making of the will, and claims the testator died intestate as to the one-fourth interest of the residuary estate sought to be given by the fifth clause of the will to the son William, who also died prior to the testator, and that as an heir at law he is entitled to share therein. The respondent contends that under the terms of the testator’s will the appellant is not entitled to any interest in the residuary estate, since the same is specifically given to the testator’s children Matthew, John, and Margaret. The court at Special Term sustained the contention of the respondent, and from a judgment to that effect the appeal is taken.

The correctness of the contention made by the respective parties necessarily depends upon the construction to be put upon the residuary clause of the will. When the will is considered in its entirety, it seems to me the testator intended to exclude the appellant from any share in his residuary estate.

By its second paragraph the testator gave the business which he was carrying on in the city of New York to his three sons, Matthew, William, and John, in equal shares, and in the event of the death of any before him then he gave and bequeathed his one-third part or interest in the business to his surviving brothers or brother. The one-third, however, given to the son William, was subject to a provision that, unless he had entirely given up the use of intoxicating liquors, then he gave his one-third to the executors, in trust, to apply the income arising therefrom to and for the benefit of William for a period of five years, and upon the expiration of said five years, if the son had not then given up the use of intoxicating liquors, to assign, transfer, and pay over such one-third to the surviving brothers or brother, subject to the further provision that if the son William should die during the period of five years, leaving lawful issue him surviving, then to apply such net income to and for the benefit of the issue, but only for the unexpired portion of said five years, and at the expiration of said time to assign, transfer, and pay over the same to the surviving brothers or brother. Under this clause of the will the daughter Margaret and the appellant were excluded from taking any interest whatever in the property there sought to be disposed of.

By the third paragraph of the will, after providing; “In order that there may be an equal distribution of my estate among my four children”—the testator gave to Margaret an amount equal to one-fourth of the appraised value of the business disposed'of by the second paragraph, and directed that, in the event that his sons were not able to pay the daughter such an amount in cash, then they should pay her interest thereon at the rate of 4% per cent, per annum until fully paid, and in the event of the death of the daughter before such amount was paid, leaving issue, such amount should be paid to the issue; and if she left no issue, then whatever remained unpaid should be paid over to her surviving brothers or brother, share "and share alike.

By the fourth paragraph of the will the testator gave to his grandson, the appellant, the sum of $3,000, and directed that the same be paid to him, with any accumulations of interest thereon, when he arrived at the age of 21 years, and, if he died prior to that time, then the testator gave said sum to his surviving children, share and share alike.

By the fifth, or residuary, clause of the will the testator gave one-fourth to Matthew, one-fourth to John, one-fourth to Margaret, and! expressly provided that in case of the death of any one of them leaving lawful issue, the issue should take the share which the parent would have taken had he or she been living; but, if they left no issue, then and in that case the share of the one so dying should be divided equally among the surviving brothers and sister. As to the remaining one-fourth, the same was given to the son William, provided he had given-up the use of intoxicating liquors, and, if he had not, then the income therefrom was to be applied for the benefit of such son during the term of his life, and, upon his death leaving lawful issue, the principal, together with any accumulations, should go to such issue share and share alike. Then followed the provision, separated only by a comma from what had preceded it, that—

“in the event of the death of my said son William J. Kearney without leaving lawful issue him surviving, then to pay over the principal of the said trust fund and accumulations thereon, if any, to Ms surviving brothers and sister, share and share alike, per stirpes and not per capita.”

It may be, as contended by the appellant, that the language here used indicates that the testator believed that William would survive him; but such language also indicates an intent, and especially when read in connection with the other provisions of the will, that in the event that William died without issue, the share thus given to him should go to the surviving brothers and sister, and that the appellant should have no interest therein. The provision made for him in the fourth clause of the will was the only interest which it seems to me the testator intended to give him, whether William died prior or subsequent to the death of the testator.

The testator was seeking to dispose of his entire estate, and from the language used in the residuary clause, I am unable to reach a conclusion other than that he supposed he had effectually done so. It would be a forced and unnatural construction to hold that the testator died intestate as to the one-fourth interest sought to be given to William in the residuary clause of his will simply because William predeceased him. It will be observed in this clause there are four separate provisions as to this share or interest: (a) One-fourth of the testator’s residuary estate is given to William if he had given up the use of intoxicating liquors; (b) if not, he was to be given only the income thereon during his life; (c) in that event, upon William’s death, that share or interest passed to his issue, if he left any; and (d) if he left no issue, then such share was given to the surviving brothers and sister. These provisions are separated from each other only by commas. The intention of the testator must be ascertained, as already indicated, by construing the instrument as a whole, and not an isolated portion of it. When the whole will is considered, the conclusion seems to me irresistible that the testator did not intend, under any circumstances, that the appellant should take any part of his estate, other than the $3,-000 given to him by the fourth clause.

This conclusion is also strengthened by the presumption that he intended to dispose of his entire estate, and not to die intestate as to any part of it. In reaching this conclusion the authorities cited by the appellant have not been overlooked. They are not in point or are clearly distinguishable from the present case.

The judgment appealed from, therefore, is right, and should be affirmed, with costs to the respondent, payable out of the estate.

INGRAHAM, P. J., and CLARKE, J., concur. LAUGHIJN and DOWLING, JJ., dissent.  