There can be no question that the primary purpose of the testator in creating a trust of all his property was to make provision for his wife and son. A small fractional part of the income was to be paid to his foster daughter, Mabel Crans, so long as she lived. The balance was to be paid to the wife or son. The death of Mabel Crans would increase the income payable to them. Their death was not to affect payment to her. When the testator's wife and son both die the primary purpose of the trust fund will be complete. The question presented upon this appeal is whether the testator evidenced an intent that the trust fund or any part of it was to *Page 204 continue after the primary purpose of its creation had ceased. The testator's desire to safeguard the payment of the sum of $50 a month to Miss Crans must have been strong indeed, if he intended that after the death of his wife and son, property with an income of $10,000 should be held in trust to effectuate that desire. If the testator had intended such result, we might look with confidence for some direction for the disposition of the large surplus of income remaining after the small payments to Miss Crans were made. Here such direction is wanting.
The testator's intent must be gathered from the language of his will. Strict grammatical construction may at times defeat actual intent. We must give effect to the sense which a testator attached to the words he has used. Here the testator has provided that the trust shall terminate "when the above payments shall cease by reason of the death of the above-mentionedbeneficiaries." If by the words I have italicized the testator indicated that the trust fund was to be held intact until Miss Crans died, though his wife and son may have died before, his indicated intention may not be disregarded. (Cochrane v.Schell, 140 N.Y. 516.) In that event the testator has acted foolishly. He has created a trust which is void in law and which even if valid would result in tying up his whole estate after the death of his wife and son for the sole purpose of safeguarding payment of a small proportion of the income to his foster daughter.
By the terms of the will, after the death of Miss Crans all the income became payable to the testator's wife and son. Only in the event that both died before Miss Crans could the trust, under any possible construction of the will, continue after the payment of the balance of the income to the wife and son ceased. We may assume with a reasonable basis for the assumption that the testator did not realize that a contingency might arise in which the property would be held merely to safeguard payment of $600 a year to Miss Crans. Otherwise he *Page 205 would have made some provision for the disposition of the balance of income, amounting to $9,400. Here we have at least a clue to the actual intention of the testator in using the words "above payments" and "above-mentioned beneficiaries."
After payment of $50 to Miss Crans, so long as she shall live, payment of the balance was to be made to the wife. If the testator's son survived the wife, the balance of income was to be expended for him. Payment of the balance of the income to the beneficiaries entitled thereto was the dominant purpose of the trusts. Payments to wife and son are directed, and the beneficiaries are mentioned in the two sentences immediately preceding the direction for the termination of the trust "when the above payments shall cease by the death of the beneficiaries mentioned." To me it seems clear that the testator in using these words had in mind only the payments last directed to the last-mentioned beneficiaries. Under that construction, payments to Miss Crans would still be continued with adequate safeguards. (Buchanan v. Little, 154 N.Y. 147.) Other construction requires that we impute to the testator ignorance of the law and lack of ordinary foresight.
The order of Appellate Division should be reversed.