Ella C. Curtis, Appellant, v. Cornelius A. Waldron, as Executor, etc., of Cornelius G. Visscher, Deceased, and Others, Respondents, Impleaded with James N. Visscher and Others

Ella C. Curtis, Appellant, v. Cornelius A. Waldron, as Executor, etc., of Cornelius G. Visscher, Deceased, and Others, Respondents, Impleaded with James N. Visscher and Others. Will — a residua/ry clame limiting generally the shares given to certain nephews anct nieces in case of their death to their children or to tire survivors—its application, to a gift of land, in terms in fee, to a nephew, given by a previous paragraph of the will. Cornelius G-. Visscher, by his will, gave to his wife, Ann Visscher, certain personal property and also the use of all the residue of his estate during her life; or so long as she should remain his widow. The 5th clause of the will provided as follows: “At the death of my said wife, if she survives me, or at my-death if I survive her, I give and devise unto my nephew, Cornelius N. Yisscher, son of my brother, Nanning F. Yisscher, the north half of my farm situate in Clifton Park, Saratoga County, upon which I now reside (exclusive of the wood lot upon said farm), also the north half of the said wood lot.” The-succeeding paragraphs of the will contained gifts to certain individuals and to a church corporation, and each of such gifts, with the exception of one, commenced in substantially the following words: “Upon the death of my said wife, if she survives me, or at my death, if I survive her, I give and bequeath unto.” These several gifts were followed by the 12th and 13th paragraphs of the will which provided: “ Twelfth. After the death of my said wife, if she survives ' me, or at my death, if I survive her, I give, devise and bequeath unto my aforesaid nephews and nieces, to wit: Francis F. Yisscher, Cornelius N. Yisscher, Maria Keeler and Frances Elizabeth Van Vranken, all of my estate of every name and nature not hereinbefore devised, bequeathed or disposed of. “ Thirteenth. If any or either of my said nephews or nieces shall die before my said wife and myself, leaving a child or children him or her surviving, such -child or children shall take and have the share which the parent would have taken or been entitled to hereby if living, and if any or either of my said nephews or nieces shall die before my said wife and myself, leaving no child or children surviving, the survivors of said nephews and nieces shall take and have the share or shares which those so dying childless would have been entitled to if living.” The testator’s wife survived him. Cornelius N. Yisscher, the beneficiary named in the 5th clause of the will, who was also one of the beneficiaries named in the 12th clause, died subsequent to the death of the testator, but prior to the-death of his widow, without leaving a child or children him surviving. Meld, that, the 13th paragraph of the will should be read as if the word ‘' hereby ’’ was stricken out and the words “by this will” inserted in its place, and that its application was not limited to the shares which the testator’s nephews and nieces took in the residuary estate pursuant to the 12th paragraph of the will, but included the gift to Cornelius N. Yisscher, mentioned in the 5th paragraph of the will. Appeal by .the plaintiff, Ella 0. Curtis, from a judgment of the Supreme Court in favor of the defendants,.Cornelius A. Waldron, as ■executor, etc., of Cornelius G. Yisscher, deceased, and others, entered in the office of the clerk of the county of Saratoga on the 12th day •of November, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Saratoga Special Term. Cornelius G. Yisscher died in January, 1886, leaving a last will and testament, and the owner of the real estate mentioned in the 5th paragraph of said will. His will was admitted to probate on the 23d day of February, 1886. By his will he gave to his wife, Ann Visscher, certain personal property, and he also gave, devised and bequeathed to her the use, income and profits of all the rest and residue of his estate during her life, or so long as she should remain his widow. The 5th paragraph of his will is as follows: “ At the death of my said wife, if she survives me, or at my death if I survive her, I give and devise unto my nephew, Cornelius N". Visscher, son of my brother, Hanning F. Visscher, the north half of my farm situate in Clifton Park, Saratoga County, upon which I now reside (exclusive of the wood lot upon said farm), also the north half of the said wood lot. This devise is made subject, however, to the condition that he, the said Cornelius H. Visscher,. pay to my niece, Frances Elizabeth Van Vranken, the sum of one thousand dollars within one year after he shall become entitled to the possession of the premises hereby devised to him, and which said sum I hereby make a charge and lien upon said premises. * * * ” He also made gifts to one other nephew, two nieces, certain cousins and other persons severally, and to a church corporation. Each paragraph of the will making such gifts (except one) commences in substantially the following words: “Upon the death of my said wife, if she survives me, or at my death, if I survive her, I .give and bequeath unto,” etc. Following these several gifts are the 12th and 13th paragraphs of the will, as, follows: “ Twelfth. After the death of my said wife, if she survives me, ■or at my death, if I survive her, I give, devise and bequeath unto my aforesaid nephews and nieces, to wit: Francis F. Visscher, Cornelius H. Visscher, Maria Keeler and Frances Elizabeth Van Vranken, all of my estate of every name and nature not hereinbefore devised, bequeathed or disposed of. “ Thirteenth. If any or either of my said nephews or nieces shall -die before my said wife and myself, leaving a child or children him or her surviving, such child or children shall take and have the share which the parent would have taken or been entitled to hereby if -living, and if any or either of my said nephews or nieces shall die before my said wife and myself, leaving no child or children surviving, the survivors of said nephews and nieces shall take and have the share or shares which those so dying childless would have been •entitled to if living.” The persons named in the 12th paragraph are the only nephews and nieces elsewhere named in the will. Ann Yisscher died on the 9th day of April, 1902. The nephew, Cornelius it. Yisscher, died prior to the death of Ann Yisscher, and on the 31st day of December, 1899, without leaving a child or children him surviving. He left a will which was admitted to probate on the 24th day of January, 1900. The will of Cornelius N. Yisscher does not in terms refer to the premises in question. It gives and devises to his wife his right, title and interest in and to a certain house and lot, and then gives, devises and bequeaths to her the use, income, rents and profits of all the rest, residue and remainder of his real estate or the proceeds of sale thereof during her life. He authorizes his executor and executrix and the survivor of them to sell and convey his real estate, and the will then continues : “ From and with the avails thereof, upon and at the death of my said wife, I direct said executor to pay the following legacies, to wit: ” Seven money legacies are .then provided, after which the will continues in the following language: “ And I do hereby give and bequeath said legacies and each of them, as above mentioned and direct that same be paid as soon- as conveniently may be after the death of my said wife, provided my said real estate shall have been previously sold and conveyed, otherwise-upon the sale and conveyance of said real estate which I direct must, be done within two years after the death of my said wife, and if not, sold and conveyed prior to the death of my said wife I give to said executor the management and control thereof until sold and conveyed as hereinabove directed.” ■ The remaining paragraph of the will is as follows: Sixth. I give and bequeath all the rest, residue . and remainder of my estate unto the children of my brother Francis F. Yisscher,. and unto the child of my deceased brother, Gradus C. Yisscher share and share alike.” Phoebe J. Yisscher, the wife of said Cornelius H. Yisscher,. survived her husband but has since died. Ella C. Curtis, the plaintiff in this action, is the child of Gradus C. Yisscher mentioned in the 6th paragraph of the will of Cornelius H. Yisscher, and defendants James N. Yisscher and Eliza Palmer are children of Francis. F. Yisscher also mentioned in the 6th paragraph of the will of said. Cornelius N. Yisscher. This action was brought by the said Ella C. Curtis claiming that Cornelius dST. Yisscher, under the will of Cornelius G. Yisscher, became the owner in fee of the real estate mentioned in the 5th paragraph of the will of said Cornelius G. Yisscher, subject to the life estate of the said Ann Yisscher, and that the title to said real estate passed under the residuary clause of the will of said Cornelius ET. Yisscher to herself and the defendants James if. Yisscher and Eliza Palmer, and asked for the partition and sale of said real property. The surviving nephews and nieces of Cornelius G. Yisscher and others are made parties defendant. The surviving nephews and nieces of Cornelius G. Yisscher claim that as Cornelius ET. V isscher died prior to the death of Ann Yisscher without leaving a child or children him surviving, the real estate mentioned in the 5th paragraph of the will passed to them under the 13th paragraph of said will. The court construed said will in accordance with the claim of the said surviving nephews and nieces and dismissed the complaint of the plaintiff. Martin T. Nachtmann, for the appellant. Charles S. Lester, for the respondents. [MAJORITY — Chase, J.:] Chase, J.: In the consideration of this will it is unnecessary to state the many general rules applicable to the construction of wills which have been so often repeated with the citation of sustaining authorities in the opinions- of the courts. It is conceded that the law favors the vesting of estates, and that a gift in one part of a will cannot be subsequently taken away or cut down except by language as plain and certain as that by which the gift was provided. In the construction of a will the intention of the testator as gathered from the whole will must control when such intention is not in conflict with public policy, the settled rules of law, or some prohibitive statute. (Putnam v. Lincoln Safe Deposit Company, 66 App. Div. 137.) Other than a money legacy to Cornelius ET. Yisscher not subject to the life estate of the widow the gifts in the will to the testator’s nephews and nieces consist of the gift to Cornelius ET. Yisscher as stated in said 5th paragraph of the will, a similar gift of other real estate to the remaining nephew, a similar gift of other real, estate to the two nieces and the gift of the residue of the estate to the' said four nephews and nieces as provided in the 12th paragraph of the will. The 13th paragraph of the will does not in terms confine its provisions to the shares that the nephews and nieces would take or be entitled to under the residuary provision of the will. In referring to the nephews and nieces the word “ share ” is first used in a clause as follows: “ Such child or children shall take and have the share which the parent would have taken or been entitled to hereby if living.” The word “ hereby ” is not confined in its meaning to the residuary clause of the will, but clearly refers to the whole will. The words “ share or shares,” subsequently used in this paragraph, are subject to a like construction with the word “ share ” previously used therein. We are of the opinion that the 13th paragraph of the will should be read the same as it would be read if the word “ hereby ” was stricken out and the words “by this will” were inserted in its place, and that its provisions relate to and include the gift to Cornelius Ni Yisscher mentioned in the 5th paragraph of the will. Ann Yisscher having outlived her husband, the testator, the time when the nephews and nieces were severally to become fully possessed or entitled to the possession of the bequests and devises to them was at the death of said widow, The remarriage of the widow would have entitled the nephews and nieces to possession of the devises to them before her death, but such right to the possession of the real estate would not have arisen by the express terms of the will but by reason of the fact that the title to the real estate vested in the devisees subject.only to the estate for the life or widowhood of Ann Yisscher. Every reference in the will to the time when the legatees and devisees would have full possession and enjoyment of the bequests and devises to them refers to the death of the testator and his wife, and the survivor of them. The language of the will throughout clearly shows that the death of the survivor of the testator and his wife was a point of time constantly before the mind of the testator in the preparation of his will. With this in mind he uses the language in the beginning of ■ the 13th paragraph as follows: “ If any or' either of my said nephews or nieces shall die before my said wife and myself,” and in so doing, it seems to us, he referred as he had before repeatedly referred in his will to the death of himself and wife and the survivor of them. A harmonious construction of the whole will requires that said language in the 13th paragraph of the will shall be construed as an equivalent statement to that so. frequently used in other parts of the will where it clearly refers to the death of the testator and his wife,- and the survivor of them. We do not agree with the appellant that the strict grammatical construction of the language of paragraph 13 requires any different construction. The plain language refers to a death “before my said wife and myself,” which means the death of them and the survivor of them. The title of Cornelius N. Yisscher to the lands in question was always subject to be divested by his death prior to the death of Ann Yisscher. She having survived him, the complaint herein was properly dismissed. This conclusion makes it unnecessary for us to consider whether under the will of Cornelius N. Yisscher the plaintiff was vested with such an interest in his real estate as was necessary to enable her to maintain partition. The judgment should be affirmed, with costs. All concurred; Parker, P. J., in result. Judgment unanimously affirmed, with costs.