Duane M. Cone, as Surviving Executor and as Trustee under the Last Will and Testament of John K. Kent, Deceased, Respondent, v. Ella Kent, Respondent, Impleaded with Sarah Jenks, Appellant

Duane M. Cone, as Surviving Executor and as Trustee under the Last Will and Testament of John K. Kent, Deceased, Respondent, v. Ella Kent, Respondent, Impleaded with Sarah Jenks, Appellant. Fourth Department, November 11, 1908. Will construed — life estate with complete title contingent Upon issue. Under a will giving a life estate to the testator’s widow, and.at her death devising and bequeathing the property to a granddaughter “ during the term of her natural life, and the remainder * * * to the heir or heirs of her body (if any) forever,” providing, however, that if the granddaughter die without heirs, then the remainder at her death shall go to the testator’s niece, her heirs and assigns forever, and further appointing a trustee to take charge of the property bequeathed to the grandchild, to apply the interest to her support and education, and to pay over the property to her “ when she arrives at the age of 21 years, or to the heirs of her body, if any, after her decease,” delivery not to be made to'her “unless she has such heirs,” the granddaughter took a life interest subject to the prior life estate and to the trust, and her estate could become absolute only if she should arrive at the age of twenty-one years and have heirs. Hence, although she reached majority her estate terminated at her death without issue and the remainder passed to the testator’s niece. The rule that where there is a devise to one person in fee and in case of his death to another, the contingency referred to is the death of the first-named devisee during the lifetime of the testator, so that if he survives he takes an absolute fee, is not applicable to the will aforesaid for it shows a contrary intention on the part of the testator. Appeal by the defendant, Sarah Jenks, from a judgment of the Supreme Court in favor of the plaintiff and the defendant Ella Kent, entered in the office of the clerk of the county of Lewis on the 11th day of April, 1908, upon the decision of the court rendered after a trial at the, Lewis Special Term. The action was brought by the executor of and trustee under the will of John K. Kent, deceased, to obtain construction of said will and determination of the rights and interests of defendants in his estate. The provisions of the will material to the decision of the action are as follows: “ Secondly. I give, devise and bequeath unto my beloved wife, Mary E. Kent, the use of all .my property,- real and personal of every kind and nature, for and during the term of her natural life, with the right to dispose of my household furniture as to her shall seem meet and proper, and if the rents, issues and profits of said property shall be insufficient, she shall use so much of the personal property as to secure her comfortable support during the said'term of her natural life. “Thirdly. From and after the decease of my said wife, I give, devise and bequeath all the use of my said property, real and personal, to my grandchild, Mary A. Kent, during the term of her natural life, and the remainder I give to the heir or heirs of her body (if any) forever, subject to the management of the trustee as hereinafter named and mentioned. “Fourthly. Provided my grandchild shall die without leaving any heir or heirs of her body, then in that case I devise and bequeath all the rest, residue and remainder of my estate, after her death, unto my niece, Sarah'Jenks, and to her heirs and assigns forever. . “Fifthly. I do hereby nominate, constitute and appoint my friend, Duane M. Cone, of said Town of Leyden, to be trustee, to take charge of the property herein bequeathed unto my grandchild, to receive and safely invest the same, and apply the interest for the better support and better education of said grandchild, and pay over and deliver the said' property to the said grandchild when she arrives at the age of twenty-one years, or to the heirs of her body, if any, after her decease. But the property is not to be delivered to her unless she has such heirs.” The will then gives the' executors power of sale'and directs the application of the proceeds for the purposes of the will and appoints his wife, Mary E. Kent, and the plaintiff, Duane M. Cone, his executors. E. J. Boshart and L. C. Davenport, for the appellant. George S. Reed, for the respondent Ella Kent. Frank Bowman, for the respondent Duane M. Cone, as trustee, etc. [MAJORITY — Robson, J.:] Robson, J.: The testator, John K. Kent, died February 14, 1892, leaving him surviving his widow, Mary E. Kent; and Mary A. Kent, the only child of his deceased son, as his only next of kin and heir at law. Defendant Sarah Jenks is a niece of deceased. The granddaughter Mary A. Kent at the time of testator’s death was an infant about twelve years of age. She survived Mary E. Kent, testator’s widow, who died August 31, 1900. Mary A. -Kent died February, 1907, aged twenty-seven years, and being unmarried, childless and intestate. Her only next of kin is her mother, the defendant Ella Kent. After the death of the widow the surviving executor sold the testator’s real estate, and up to the date of the death of Mary A. Kent paid her the income of the estate. He has on hand about $2,200 as the principal of said estate, and now seeks instruction by the court as to whom he shall pay and deliver this fund. It does not appear that a personal representative of the estate of Mary A. Kent has as yet been appointed. Ho question is made, however, as to whether the appointment of such a representative and his presence as a party are necessary to a complete determination of the action, and we need not now consider that suggestion. We think the interest in testator’s estate given by his will to his granddaughter, Mary A. Kent, was a life interest therein, subject to the prior life interest in said estate given to the widow, Mary E. Kent, and subject to the trust therein created by the 5th' item of his will, which estate might be enlarged to and become an absolute title to said residuary interest provided she should arrive at the age of twenty-one years and have heirs of her body, and, though she had passed the age of twenty-one prior to her death, yet never having had a child, her interest in said estate terminated at- her death, and the defendant Sarah Jenks is now the owner of and entitled to the fund now representing the estate of testator in the hands of the trustee. The interest in testator’s estate to which Sarah Jenks is entitled is given her by the 4th item of his will and is -a gift of the whole residue and remainder of his estate, subject, however, to the proviso that the grandchild, Mary A. Kent, “ shall die without leaving any heir or heirs of her body.” It is, of course, the settled rule of construction, as stated by Rapallo, J., in Matter of New York, Lackawanna & Western R. Co. (105 N. Y. 89), “ That where there is a devise to one person in fee, and in case of his death to another, the contingency referred to is the death of the first named devisee during the lifetime of the testator and that if such devisee survives the testator, he takes an absolute fee.” ' Also that when a life estate in another is interposed before such contingent gift the death referred to is the death of such devisee before the termination of the precedent life estate. (Matter of Farmers’ Loan & Trust Co., 189 N. Y. 202.) This rule is urged by respondent’s counsel as decisive of this case in her favor. But the obligation of applying this rule of construction rests lightly on the conscience of the court and is itself subject to important exceptions. “ It has no application if the will contains language from which a contrary intention on the part of the testator can be ascertained.” (Matter of Cramer, 170 N. Y. 271, 275.) It would seem that such “a contrary intention on the part of the testator” is expressed in his will. It will be observed that the testator nowhere in his will in terms gives to the granddaughter the absolute interest in or title to the residuary estate. ■ It is all the use of the property which. is given to her by the 3d item of the will, from and after the decease of testator’s wife and subject to the management of the property by the trustee as thereinafter expressed; that is, as expressed by the trust clause which is the 5th item of the will. In terms she is given simply a life estate in the property. It is urged, however, that the intention of the testator-to give her the absolute title to the property, in the event she should survive the widow and attain the age of twenty-one, is apparent from the fact that in the item of the will establishing the trust for her benefit the trustee is directed to “ pay over and deliver the said property to the said grandchild when she arrives at the age of twenty-one years, or to the heirs of her body, if any, after her decease.” It, may be that, if testator’s meaning were to be gathered from this expression alone, and nothing further appeared in the will indicating a different intention, the respondent’s position would be correct. But such different expression of intention is clearly shown in the succeeding sentence, which closes the item referred to, by which the testator explicitly directs that the property is not to be delivered to her unless she has “such heirs.” In order to sustain respondent’s position we must necessarily disregard this expression of testator’s intention. This we are not at liberty to do. The judgment should be modified in accordance with the foregoing opinion and as modified affirmed, with one bill of costs to appellant and bill of costs to respondent Duane M. Cone, trustee, etc., payable out of the estate. All concurred. Judgment, modified so as to provide that the defendant Sarah Jenks, on the death of Mary A. Kent, the life beneficiary, without having ever had any heirs of her body, became 'the absolute owner of the residuary trust estate, subject only to the 'charges of the trustee, and was entitled to the possession thereof, and that the same be paid to her by the plaintiff; and as so modified affirmed, with one bill of costs to the appellant and one bill of costs to the respondent Duane M. Cone, trustee, etc., payable out of the estate.