[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 524
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 525
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 526 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 530 We agree with the learned Appellate Division that the construction of the ninth clause of the testatrix's will is to be determined by her intent if it can be ascertained, and that effect must be given to such intent if it can be done without contravening any settled rule of construction or statute.
The will of the testatrix discloses a mature and complete plan for the disposition of her estate for the benefit of those who were intended as recipients of her bounty. In its prolixity, resulting from an effort to state in detail every contingency that might by any possibility arise, this controversy doubtless had its origin. Having attempted to anticipate and provide for every imaginable condition or combination of *Page 532 circumstances that might in the future exist, it is found that the draughtsman succeeded in providing, in great detail, for many possible conditions, but omitted that which actually occurred. It is upon that omission that the present litigation and the decisions of the courts below were based. If the courts were justified in disregarding the ninth clause as to the disposition of the fee of the property, it must be upon the ground that the testatrix having failed in express terms to provide in detail for the contingency that occurred, that clause became ineffective, regardless of her actual intent as disclosed by her whole will. If understood, the view of the court below was, that as the final provision of the ninth clause provided that if both Louise and Renshaw should die before Mason, the fee was to go to the issue of Renshaw if he died leaving any; if not, to the appellants; that the devolution of the fee under that clause was entirely dependent upon the existence of that express condition, and as it did not exist that clause became inoperative and the fee passed into the residuary estate. The court seems to have based its decision upon the theory that the testatrix intended, not that the death of Renshaw without issue should be the condition or limitation upon which the fee should pass to the appellants, nor that it should depend upon the time when he should die, but that the condition upon which the devise to them in fee should stand was that Renshaw should not die until the death of his father and mother. It is vastly less difficult to state the position than it is to understand what possible motive could have induced the testatrix to base the provisions of that clause as to the fee upon such a condition, or to believe that she had any intent to do so.
The intention of the testatrix must be our absolute guide in construing her will. Such is the mandate of the statute, and that principle is so firmly established by the decisions of this and other courts as to render any citation of authorities needless. Another equally well-established canon of interpretation is that that intention is to be ascertained from the whole will taken together, rather than from any particular *Page 533 provision considered by itself. If a general scheme is found to have been intended, which is valid, it is the duty of the court to carry it into execution and thus effectuate the purpose of the testatrix. When the intention is ascertained, the mode of expression, or an inadvertent omission in some particular, should be subordinated to the intent without regard to technical objections if in harmony with the general scheme and purpose of the will. The primary effort should be to find the testatrix's general scheme and carry her purpose into effect, to which even general rules of interpretation are subservient. In interpreting this will, the facts and circumstances attending its execution must be considered, including the relation of the parties, the nature and situation of the property, and the apparent purpose of the will or special gift. As the extrinsic facts and circumstances are uncontradicted, it is our duty to interpret this will in the light of the established facts, and from the provisions of the whole will to determine the testatrix's intent, which, under the circumstances, is a question of law reviewable by this court. (Underhill v. Vandervoort, 56 N.Y. 242.)
Although the ninth clause of the will, as well as its other provisions, is prolix, to an extent involved and somewhat difficult to at once comprehend, still, a studious examination of the whole will and especially of the clause under consideration discloses: 1. That the general purpose of the ninth clause was to provide for Mason R. Jones and his family to the exclusion of all others; 2. If it could be accomplished without conflict with the statute relating to the suspension of the power of alienation, that Mason R. Jones, his wife and Renshaw should have only a life use in any portion of the property, the extent of the interest of each to be dependent upon and controlled by circumstances which involved the death or survivorship of the others; 3. Upon the termination of the lives of all who were to receive the income or any part thereof, that the fee should go to the issue of Renshaw if he left issue surviving, and if not, that it should vest in the children of Mason R. Jones by his first wife. *Page 534
Most, if not all, the complications and difficulties which are encountered in interpreting this clause of the will, relate to the income of the property while in the hands of the trustees. Its provisions as to the ultimate disposition of the fee are plain and simple, and become uncertain only when they are sought to be made dependent upon the various provisions as to its life use. The contingencies in that provision of the will may well be held to apply to the income only. As there can be little dispute about the rights of the surviving parties as to the income, we may well separate the provisions relating to the life use from those which relate to the fee, as such a course will greatly simplify the question of the title to the latter.
As with our views of this case it is clear that Louise O'Conor Jones is entitled to one-half of the income of the property until her death or remarriage, the only real question is whether the fee passed under the ninth clause of the testatrix's will, or fell into and became a part of the residuary estate. That she as fully intended by the ninth clause to make an ultimate and final disposition of the fee as she did of the use, there can be no doubt. To attribute to her an intent that in the single instance of the death of Renshaw during the life of his father and mother, the widow should be deprived of the use of her portion of the income and the appellants should not become entitled to the fee for which the testatrix had so carefully and plainly provided, we think unjustifiable. We perceive no substantial basis for the belief that she intended that all her provisions for the widow during her life and for the children of Mason by his first wife, should fail if Renshaw died without issue during the life of his parents. No good reason can be found or hardly imagined upon which the existence of such a purpose could be supposed to have been in the mind of the testatrix. It would be inconsistent with the provisions of this clause and with the general plan and obvious purpose of the whole will.
Independent of the special instance to which we have adverted, as to the fee the ultimate objects of her bounty were the appellants. Only one situation was intended to stand *Page 535 between them and the fee, which was that Renshaw had issue that should survive his death. We discover nothing to justify the court in finding that whether Renshaw should die before his father or afterwards in any way affected her intention that the fee should go to the appellants if he died without issue. It was the fact of his death childless that was the basis of her intention that they should have the fee, and not the order in which the deaths of those having the income for life should occur.
We are unable to read this will without reaching the conclusion that the testatrix intended that Mason and his wife should each be entitled to one-half of the income of the trust estate during the life of the former; if Louise died before Mason, that he was to receive the whole income during his life; if Mason died before his wife, that she should still be entitled to one-half of such income during her life or widowhood. The testatrix also intended that should Renshaw survive Mason, he should have the use of the other half during his life; upon the death or remarriage of Louise, that, to avoid the statute against perpetuities, he should receive the one-half in fee of which she had the use; if Renshaw died leaving issue, her intent was that such issue should have title in fee to the remaining one-half; but if Renshaw died before the death of his father leaving no issue, then that the fee upon the death of Mason should vest in his children by his first wife, subject only to the use or life estate as to one-half during the life and widowhood of Louise. The clear intent of the testatrix was to vest the fee in the descendants of Mason and not in him. Obviously she did not intend that the fee should vest either in Mason or Mrs. de Trobriand. This is rendered clear by the other provisions of the will when considered in connection with the ninth clause. Therefore, unless the evident intention of the testatrix is to be defeated, the appellants were entitled to one-half of the fee upon the death of Mason, and will be entitled to the remaining one-half in possession upon the death or remarriage of the widow. Hence, in the further discussion of this case, it will be assumed *Page 536 that under the existing circumstances the testatrix intended that the fee should go to the appellants.
But it is contended by the respondents that the devise of the fee to the children of Mason R. Jones by his first wife was totally dependent upon the death of Mason leaving surviving him both his wife and their son, and as that event did not occur, the trust never took effect as to Renshaw and Louise, and the remainders which were dependent upon it never came into existence. They insist that because the ninth provision of the will failed to specifically provide how the property should be disposed of in the special event of the death of Renshaw without issue during the life of his father and mother, all the provisions of that portion of the will as to the disposition of the income and as to the disposition of the fee as well, were invalid, they being dependent upon the single contingency that both Renshaw and his mother should survive the death of Mason. In other words, their claim is that the remainder to the appellants depended and rested upon trusts for the lives of both Louise and Renshaw, and, as both of those trusts never came into effect because of the death of Renshaw before the death of his father, no matter what may have been the intent of the testatrix, the estate in remainder never came into existence.
There was no failure of the trust for the benefit of Louise. The only failure was of that for the benefit of Renshaw. Although the trust as to the income in favor of Renshaw lapsed or failed in enjoyment by reason of his death during the lifetime of his father and the continuance of the life estate of the latter, yet, as to Louise, the trust was continued, notwithstanding the death of Mason. There is no reason whatever to suppose that the testatrix intended that her provision for Louise should fail in case of the death of Renshaw, as her obvious purpose was to make a separate provision for Louise, a separate one for Renshaw, and that each should enjoy the provision of her bounty, independently of and without regard to the lapse or failure of the other.
A limitation does not fail because the preceding estate does *Page 537 not take effect. Where a devise is limited to take effect on a condition annexed to any preceding estate, if the preceding estate should never arise, the remainder over will, nevertheless, take place, the first estate being considered only as a preceding limitation, and not as a preceding condition, to give effect to the subsequent limitation. (Norris v. Beyea, 13 N.Y. 273,287.)
Where there was a devise and bequest to the testator's son of real and personal estate for life, to go to his heirs in case he died leaving issue, and in case he died without issue to go to his nephews and nieces, and the son died without issue before the death of the testator, this court held that there was no lapse, but that the contingent limitation took effect in favor of the nephews and nieces. The court said: "There is no ground for supposing that his (the testator) wishes, in regard to the ultimate disposition of the property, depended in the slightest degree on the time when the son should die without issue," and added, "The primary gift may lapse or fail if its object dies before the will can operate at all, but this has no tendency to defeat an independent and ulterior limitation to other objects who are living at the testator's death." (Downing v.Marshall, 23 N.Y. 366.)
"An ulterior devise, to take effect upon the defeasance of a former one, will attach as well where the failure of the primary devise is by the happening of some event, such as the death of the devisee, during the lifetime of the testator, as by an event occurring after his death, by which the first devise after it has taken effect is defeated, unless the ulterior devise is so connected with and dependent upon the primary one that it cannot consistently, with the provisions of the will, have effect if the latter fails ab initio." (Wager v. Wager, 96 N.Y. 164, 171;Vanderzee v. Slingerland, 103 N.Y. 47; Crozier v. Bray,120 N.Y. 366; Matter of Miller, 161 N.Y. 71.)
A condition subsequent followed by a limitation over to a third person in case the condition is not fulfilled, or there is a breach of it, is known as a conditional limitation. A condition *Page 538 brings the estate back to the grantor or his heirs. A conditional limitation carries it over to a stranger. A condition terminates an estate; a limitation creates a new one. "A remainder may be limited on a contingency, which, if it happens, will operate to abridge or determine the precedent estate, and every such remainder shall be a conditional limitation." (Real Property Law, § 43.)
The language of the ninth provision of the testatrix's will expressly gave the fee to the appellants, to be defeated only by the contingency of the death of Renshaw leaving issue. If he died without issue the substituted devise to them was intended to take effect. We think there is no ground for supposing that the wishes of the testatrix in that regard were dependent at all upon whether Renshaw died before or after the death of his father. The remainder over to the appellants constituted a conditional limitation and not a preceding condition based upon the fact that both the widow and her son should survive their husband and father. The term "conditional limitation" is here used in its broader sense which includes shifting uses and executory devises and as a phrase limiting an estate previously created and substituting another in its stead. The purpose of the testatrix evidently was, not to terminate the estate in fee given by the ninth clause of the will in the event of the death of Renshaw without issue, whether it occurred during the lifetime of his father or subsequently, but was, in the event of his death without issue, to carry it over to the children of Mason by his first wife. Her intention upon the death of Renshaw was not to terminate the estate in fee, but to create in the appellants a new or substituted one. Consequently, upon the death of Renshaw without issue, the estate in fee vested in the children of Mason by his first wife, subject, however, to the life estate of Mason and the life estates created for the benefit of Louise.
The appellants contend that upon the death of the testatrix, as they were the only persons in being at that time who were entitled to take the fee upon the termination of the precedent estate, the fee to the whole property vested in them subject *Page 539 to the life estates which were created by the will, and also subject to be defeated by the birth of issue to Renshaw, and that where, as here, there is a future devise to persons named or issue, with a substituted devise in case they die during the precedent estate, the remainder vested as soon as there was any person in being answering that description, subject to let in those, if any, who were after born and subject to be divested as to any who might die during the continuance of the precedent estate. But whether the contention of the appellants can be sustained as broadly as made, we need not now decide, for upon the death of Renshaw the estate vested in the appellants.
The law favors the vesting of estates as soon as possible after the testator's death, and a will in doubtful cases is to be construed accordingly; still, the question is one of intent. (Stokes v. Weston, 142 N.Y. 433.) Where, after a devise and bequest in language denoting an absolute gift of the whole estate in fee, there is a subsequent limitation over in the event of the first devisee dying under age and without issue, the gifts are not repugnant to each other, and the latter is a valid executory gift. This is illustrated in the following case: The will of S. devised his real estate to his wife for life if she remained unmarried, and upon her death or remarriage he devised it to C., with the provision that in case of the death of the latter without children, the remainder was to go to A., and it was held that upon the death of the testator, C. took a vested remainder in fee, subject to be defeated by his death without children, upon which event the substituted remainder, given upon that contingency to A., would vest in possession. (Vanderzee v.Slingerland, supra.)
The interlocutory judgment and order and final judgment affirming such interlocutory judgment should be reversed and new trial granted, with costs to the appellants to abide the event, payable out of the estate of Mary J. Mason, deceased.
PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, VANN and LANDON, JJ., concur.
Judgment reversed, etc. *Page 540