[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 73 I think the case was well decided at the Appellate Division. As I understand the argument of the appellants, it is that the testator had already made an absolute gift of all of his property, by the will, and that the later clause in the instrument, which seemed to limit the estate upon a condition, was too ambiguous and, therefore, was ineffectual to accomplish that result; within that general rule, in the construction of wills, that the cutting down, or the lessening, of an estate already given cannot be done except by words as clear and unambiguous as were the words of the gift. Then the further argument is that, if the gift over to the Darrows was intended to be substitutionary, it failed because the contingency never happened which was to make the gift to them operative.
The claim of the appellants, however, is not supported by that construction of the will which, in my opinion, its fair reading — especially when read in the light of surrounding circumstances — warrants. The intention of the testator seems very plain. He intended, undoubtedly, a gift of the whole of his estate to his daughter; but he had in mind the possibility of his own early death and her condition of infancy and, therefore, made elaborate provision for it. Her guardianship and custody, and the care and improvement of her estate, were confided to the executors during her minority, or until she married. The condition then was added that, in the event *Page 76 of death while under twenty-one years of age, or without issue her surviving, the estate was to go to the Darrows. If all the provisions of the will were eliminated, which intervened between the gift of the estate to the daughter and the conditional clause, what reasonable doubt could there be as to the clear intention of the testator; that is, to provide for the happening of the condition, by substituting other persons to take, in his daughter's place? The arrangement of the clauses may be inapt, and there may be some inaccuracy in expression; but there is a clear design and purpose in the instrument, which dominate throughout, and to effectuate such all else in language, or in arrangement of clauses, will be subordinated. The intervening provisions will not be permitted to affect the evident scheme of this will; if, in fact, they might be deemed to do so.
The gift over to the Darrows, upon the condition named, was as clear and unambiguous, as was the primary gift to the daughter. The gift to her, if she should survive the testator, was subject to be defeated by a condition subsequent, upon the happening of which the gift to the Darrows would vest in possession, and thus displace the prior fee given to the daughter. (Vanderzee v.Slingerland, 103 N.Y. 47.) It was an executory gift to them and, though the testator may not appear to have provided, in terms, for the event of his daughter's death in his lifetime, his actual intention that the executory gift should, nevertheless, take effect is a necessary legal implication. (2 Jarman on Wills, *1642; McLean v. Freeman, 70 N.Y. 81.) In McLean v.Freeman, it was observed by Judge ALLEN that "a testator is presumed to calculate on the dispositions of his will taking effect, and hence several and succeeding gifts of the same fund or property will be considered as intended to take effect in their proper order, each object of the testator's bounty to take upon the failure of the prior dispositions, either ab initio or at any time before it becomes indefeasible in the donee." Clearly, the testator did not intend that any other person should enjoy his estate than his daughter, or, in the alternative, the Darrows. *Page 77 We find strong confirmation of that intention in the situation. When he makes his will, his daughter is but one month old. As his executors and the persons who shall be her guardians, both of person and of estate, he appoints Mr. and Mrs. Darrow, and when he makes the codicil to his will, after his daughter has died, he makes no alteration in its terms. As a ratification of his will, the execution of this codicil could only point to his understanding that the Darrows were then the devisees and legatees of his estate; for, in view of his daughter's decease, the provision of the will in their favor remained as his sole testamentary disposition, as it was remarked by Mr. Justice PUTNAM at the Appellate Division. In executing a codicil which, in effect, republished his will, he cannot, in any reasonable view, be regarded as intending that the Darrows should take nothing.
Nor do I think that there is any force in the suggestion by the appellants, that, as the gift to the Darrows was of "the whole of the residue of my said estate then in the hands of my said executors," no property was covered by the description. The gift of the residue would carry with it whatever "then," that is when the gift was executed, could be given of the estate. The residuum, for its ascertainment, was not fixed by, nor did it depend upon, the execution of provisions which had become impossible of performance. The primary gift having been defeated, all of the estate which remained after the payment of the testator's debts and administration expenses, went, by the gift of the residue of the estate, to the Darrows.
I think the judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 78