The will of John M. Smith, the construction and effect of which are in controversy in this action was clearly intended to make a full and final disposition of all his estate both real and personal. Its general tenor and meaning, as well as the particular provisions, devises and bequests made of his property, very clearly show that to have been the design and intent of the testator. And this circumstance, therefore, must be prominently observed and considered in determining the effect of particular terms and phrases, which, standing by themselves, may not be entirely consistent with the execution of that purpose. The rule upon this subject was stated by Lord MANSFIELD to be that "words of limitation shall operate as words of purchase, implications shall supply verbal omissions, the letter shall give way; every inaccuracy of grammar, every impropriety of terms shall be corrected by the general meaning, if that be clear and manifest." (Chapman v. Broder, 3 Burrow, 1626.) And it was stated in terms of similar import by the chancellor, in deciding the case of Pond v. Beigle (10 Paige, 140, 152). He there declared that "the intention of the testator, so far as it is consistent with the rules of law, must govern in the construction of a will. When, therefore, the intention is apparent upon the whole will taken together, the court must give such a construction as to support the intent of the testator, even against strict grammatical rules. And to effectuate his evident intention, words and limitations may be transposed, supplied or rejected." (4 *Page 342 Kent, 7th ed., 595.) The observance of this principle is important in this case in view of the circumstance already referred to, that the will renders it entirely clear that the testator did not intend to die intestate as to any portion of his estate. This is manifest from the fact, that by means of it, he has endeavored to provide against every possible contingency that might be attended with that result. And that intention should be maintained by the construction given to the different clauses in the will, if that can practicably be done consistently with the language he has made use of in framing them.
The first of those clauses which are drawn in controversy in this cause, is that contained in the third subdivision of the will. And that clause is in the following words:
"3d. I give, devise and bequeath one other equal fourth part or share of all said rest, residue and remainder of my estate, real and personal, to my executors, in trust, to receive the rents, issues, profits and income thereof, and pay the same to my son, John Jacob Smith, during his natural life, and on his decease, to pay the said rents, issues, profits and income to his wife, during her natural life, and on her decease, if he leave a widow; or, if he leave no widow, then, on his decease, to convey and transfer said one-fourth part or share, in fee, to the issue, then living, of my said son, John Jacob, per stirpes; but in case the said John Jacob shall die without issue, then, on the expiration of said life estates, to convey and transfer said one-fourth part or share, in fee, to the issue then living of my son Lawrence, and the issue, then living, of my son Lafayette, by another than his present wife, and the issue, then living, of my daughter Cornelia, by a husband other than Frederick R. Schettler; the issue entitled to take, taking per stirpes."
By this clause, it was evidently the testator's design to dispose of one-fourth of the residue of his real and personal estate finally and effectually. His first object was to provide a life estate for his son, in the rents, issues, income and profits of it. And if he should leave a widow at the time of his *Page 343 decease, to make a like provision in her behalf for the remaining portion of her natural life. And afterward to dispose of the remainder absolutely. This remainder was positively intended for the issue of his son, if he should leave any, and if he did not, then for the particularly designated issue of his brother and sister. By the express terms made use of, it was to be conveyed and transferred at once to the issue of the testator's son, upon his decease, if he should die leaving such issue, but no surviving widow. If he should leave neither issue nor widow, then it is insisted that the testator has so devised and bequeathed this portion of his estate, that it could not on his son's decease be lawfully transferred by the executors to the designated issue of his brothers and his sister. And that is maintained to be the case on account of the testator's declaration that such issue should take the remainder "on the expiration of said life estates." From these terms, it is claimed that he could only have intended that the final remainder should take effect after both the life estates had become actually vested in the respective life tenants and been enjoyed by them. If that were the testator's design, then the remainder thus provided for would probably be unlawful, because the second life tenant might not be in existence at the time of the decease of the testator. And if such life estate failed on account of its illegality, it would follow that the remainder, dependent upon it, would also fail for the same reason. For the latter could not be maintained in the absence of the preceding estate, on the existence and determination of which, it was actually made to depend.
But no good reason can be supposed that could have induced the testator to render the final disposition of this remainder, actually dependent upon the vesting and enjoyment of the second life estate. That would have been directly in conflict with the general scope and theory of his will. For it would have rendered him intestate as to this remainder, in case the life estate should fail to take effect, and his son should die without issue. And that he evidently intended to provide against. The purpose he intended to promote by the *Page 344 creation of the second life estate, was to secure his son's widow a support for the residue of her life, after his decease, which she would otherwise have been deprived of by the terms of the will during that time. It was a contingent disposition in favor of the widow, instead of an event necessarily designed to precede the final vesting of the remainder. And as such, if the estate should fail to take effect, on account of there being no widow, no legal obstacle could then stand in the way of giving full effect to that portion of the will relating to the remainder. And that from the terms made use of, and the contemplated relation of the parties, must have been the purpose which the testator intended to accomplish.
No reason can be supposed for rendering the remainder dependent upon any different event beyond that of the failure of the son's issue, in limiting it to the designated issue of the brothers and sister, than that on which it depended in the limitation to his issue. As his issue were intended to take it on the decease of the son, leaving no widow, and their's were to have it for want of issue on his part, there is no reason why the same event should not determine the right of their issue as well as that of his own to this remainder. It was to be conveyed and transferred to them on his failure to leave issue to receive it, not because the life estate, provided for the contingent widow, had taken effect and been enjoyed by her. And whenever that event transpired, their right to the property manifestly became perfect. That was the reasonable import of the language used by the testator. For the life estate secondly provided for, was contingent upon the survivorship of the life tenant. In case there should be no such survivorship, then on the decease of the son his issue were to receive the property, and if he should die without issue then living, then on the expiration of the life estates, in the manner previously designated, the final devisees and legatees were to have it. When the testator used the terms, "on the expiration of the said life estates," in the connection in which he employed them, he must have had in his mind the provisions *Page 345 just made concerning them, and must, therefore, be deemed to have used them in reference to those provisions. And in doing so, necessarily intended to be understood as referring to the manner in which he had previously contemplated the cessation or termination of such life estates. And as one was rendered contingent upon the survivorship of his son's widow, it necessarily expired on his decease, without leaving a widow. That was a perfectly proper use of the term employed, and from the connection in which it is found, it is apparent that the testator used it in that sense. When his son died without leaving a widow, as he did, both the life estates expired by that event. The one by the consummation of its enjoyment, the other by the contingency failing, on which alone it could take effect. The object of the testator in both respects was then fully accomplished, and as his son left no issue, there was nothing to prevent the issue of the brothers and sisters from taking the property. This issue was authorized to receive it by the terms made use of in this clause, as soon as the testator's son died without leaving a surviving widow, or issue, and as both those contingencies were necessarily determinable immediately upon his decease, no unlawful suspension of the power of alienation, or of absolute ownership, could be produced by that disposition of the remainder. That limitation was perfectly valid, even though in the event of the other contemplated contingency, that of the son leaving a widow, to whom the second life estate was unlawfully limited, it might have proved to have been otherwise. Two distinct and independent limitations were provided for the final vesting of the remainder. One dependent upon an event allowed by law, the other upon an event falling within the statutory prohibition. The former being valid, could no more be impaired by the latter than it would have been if the latter had been entirely omitted by the testator. For it was in no way or manner rendered dependent upon the limitation which it was declared should succeed the second life estate in the contingency, that the son died leaving a widow surviving him. In such cases it is well *Page 346 settled, that the limitation lawfully made, shall be sustained, even though that depending upon the other contingency may be altogether inoperative and void. (Savage v. Burnham,17 N.Y., 561, 576, 577; Post v. Hover, 33 id., 593, 598; 1 Jarman on Wills, 3 Am. Ed., 269-70; Lewis on Perpetuities, 501-2.)
The testator's son was never married, and, consequently, left neither issue nor widow living at his decease. The final remainder, therefore, took effect upon the occurrence of that event. It is unnecessary to consider further the validity of the other limitation in this connection, since that is not practically involved in the construction of this part of the will.
The fourth division of the testator's will in a similar manner disposed of another fourth part of his estate in favor of his son Lawrence. By that clause, the issue will take this portion of the estate, in case he shall die without leaving a surviving widow. If he does, and still leaves no issue, then it was provided that the issue, at that time living, of the testator's sons, John Jacob, and of Lafayette, by a wife other than the one he then had, and of Cornelia, by a husband other than the plaintiff, should take, in fee, that portion of his property. This was a legal disposition of that part of the testator's estate. And for the reasons already stated in discussing the preceding portion of the will, no obstacle can exist that will prevent the fee from becoming finally vested under it, if Lawrence shall die leaving no widow.
But if, at the time of his decease, he shall leave a widow surviving him, then, on the happening of that event, the estate cannot, according to the terms of the will, go to his issue, or, if he shall leave none, to the issue of his brothers and sister, until after the actual expiration of his widow's life estate in the rents, income and profits of this share of the testator's property. In that event, the final vesting of the will is rendered dependent upon the previous expiration of the widow's life estate. This life estate was not exclusively provided for the wife he had or might have at the time when the will went into effect; but it was provided for any wife *Page 347 he might have who should survive him as his widow; and as that might be a person not in being when the will went into effect, the existence of that estate may suspend the power of alienation, and of absolute ownership of the property beyond the duration of two lives in being, when the will took effect. There is certainly a possibility of that being the case; and that is sufficient to render the life estate, provided for the widow, invalid, and the ultimate limitation dependent upon it, in favor of the issue equally so. If the life estate fails, of course the remainder, made dependent, and which it is provided shall take effect upon its termination, must also fail with it; for the event can never, in that view of the case, arise upon which the remainder was to become vested. (Hawley v. James, 16 Wend., 62; Lewis, on Perpetuities, 170; Thompson v. Carmichael, 1 Sand. Chy., 394;Lett v. Randall, 3 Smale Gifford's Rep'ts, 83; Hodson v.Ball, 14 Simons, 558, 574.)
That section of the statute which provides that where a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled shall be void; and upon the death of those persons the remainder shall take effect in the same manner as though no other life estates had been allotted, was relied upon at the argument for the purpose of avoiding this consequence. But that section of the statute very evidently can have no such effect; for, by its terms, it is rendered applicable only to that class of cases where more than two successive life estates are provided for to precede the final vesting of the remainder. (3 R.S., 5th ed., 11, § 17.) In the present instance no such provision was made; for it was provided that the vesting of the remainder should not be postponed beyond the termination of the second successive life estate. This provision of the statute has nothing to do with the present controversy.
The consequence of the failure of the remainder in case Lawrence shall leave a widow surviving him, will be that this portion of the testator's estate must in that event follow the *Page 348 ordinary course of descent provided by law. As to that remainder, the testator in that case will be intestate. And the child of Cornelia will be entitled to inherit it in the place of her mother in common with the other heirs of the testator.
The plaintiff, as the administrator of the testator's daughter Cornelia, is plainly entitled to nothing from the rents, issues, income and profits of his estate; for, by the will, it was not only provided that in case of her marriage with the plaintiff, and her decease without issue by a different husband, that the one-fourth of the testator's estate otherwise provided for her and such issue, should be conveyed and transferred in fee, to the issue mentioned of John J., Lawrence S. and Lafayette; but beyond that, all her interest in the estate should thereupon cease during such coverture, and that the same during such coverture should pass to the testator's other children then living, and the issue of such as should be dead.
If she had survived her husband, the case in this respect would have been different. But as she did not, neither he nor her issue can lawfully recover any portion of the rents and profits of this part of the testator's estate, under the terms of his will relating to it.
The judgment should be so far modified as to declare the right of the issue of Cornelia to inherit by descent with the other heirs of the testator, that portion of his estate devised and bequeathed to the issue of Lawrence S., and of the other of the testator's children, if he should die without issue, in case he shall leave a widow surviving him at the time of his decease. And as so modified, the judgment should be affirmed without costs of the appeal to either party.
WOODRUFF, MASON, JAMES and MURRAY, JJ., concur in the results to which GROVER, J., arrived in his opinion.
LOTT, J., concurred with DANIELS, J., as to the surplus income from Cornelia's one-fourth.
HUNT, Ch. J., was for affirmance.
Judgment below modified by declaring, in the event of the death of Lawrence Shuster Smith, leaving a widow, the trust *Page 349 to pay the rents and profits to such widow void, and the limitation over upon her death void, and that the testator will have died intestate as to the remainder of that one-fourth of testator's property upon the death of Lawrence, and the judgment below also modified by adjudging the plaintiff as representative of Cornelia entitled to recover the excess of the income of the one-fourth of the property, over and above the $800 a year paid to Cornelia, during the period before her marriage.
As so modified, judgment affirmed, costs of both parties in this court and the court below to be paid from the estate.