I find myself unable to yield my assent to the conclusion reached in tlie prevailing opinion in this case, for the reason that the construction given by the trial court to the will of Michael Riley, Jr., is more in harmony with my views.
In attempting to give effect to this instrument, it may be well, as it certainly will prove helpful, to have recourse to one or two familiar canons of construction, one of which is to first ascertain, if possible, the general scheme or intent which the testator had in mind in disposing of his property (Roe v. Vingut, 117 N. Y. 204), and, having done this, to accomplish such intent if possible, by giving effect to each and every provision of the will. (Chrystie v. Phyfe, 19 N. Y. 344, 348; Taggart v. Murray, 53 id. 233.)
It seems to me quite clear, from a careful reading of the instrument in question, that it was formulated and executed upon the assunqition that the testator’s estate consisted principally, if not *474entirely, of the-two‘lots situate on Canal street in the city of Buffalo,, and “ a small amount of personal property,” mentioned in the recital which precedes the disposing clauses. That, having thus specifically inventoried his supposed estate, the testator proceeded to make disposition of the same by first bequeathing to the St. Vincent’s Female Orphan Asylum of Buffalo, the sum of $500, and charging ' such legacy upon the Hector McDonald lot, and then devising and bequeathing unto his wife, Margaret Eiley, all his real and personal estate and property, for the term of her natural life, or so long as-she shall remain unmarried. This much accomplished, there follows-the 3d clause, which contains the modifying provision that, in-case his wife shall remarry, she shall take the “Adams & Clark” lot in fee, and that her right and interest “ in the other piece of real estate shall thereupon cease and determine.” It is further provided that the nephews and nieces of the testator shall, in the event first mentioned, take the fee of the McDonald lot, subject to a mortgage of $1,000, and the legacy of $500 to the orphan asylum.
It is true that in the 2d clause the testator gives “ all ” his real estate and property to his. wife, and, strictly speaking, this would ordinarily dispose of the entire estate. But it is quite obvious that the word quoted relates simply to all the estate and property which had been theretofore mentioned, and not to all which the. testator might possibly possess.. For, after providing that his widow should,, in the event of. her marriage^ take the fee of the Adams and Clark lot, and cease to have any interest in “ the other piece of real estate,”' he directs that his nej>hews and nieces “ shall then become the owners in fee, and entitled to' the possession thereof immediately.” That is, that they shall take the McDonald lot, and not the residue of his estate.
In this view of the’case, and in this manner only, can effect be given to the 4th or residuary clause of the will. For it is to be observed that, as is generally the case, the testator, after disposing of the bulk of his estate, in order to guard against intestacy as to any portion thereof, devises and bequeaths all the residue of his-property, of every kind and description, to his wife, and her heirs- and assigns forever.
It is not to be assumed that this residuary clause is mere surplusage, or that it was incorporated into the will without some well-*475defined object upon the part of the testator; nor is it to be so construed as to render it meaningless and of no effect, if such a result can be avoided. On the contrary, it is the duty of the court, in construing the same, to look at the entire instrument, as well as at all the circumstances surrounding its execution, in order .that a proper interpretation maybe arrived atl (Kerr v. Dougherty, 79 N. Y. 327.)
Taking the will as a whole, therefore, I am of the opinion that it clearly appears that it was the intention of the testator to dispose of the two Buffalo lots and his personal property only, by the first three clauses of that instrument, and then to devise and bequeath the residue of his estate, if any there should be, by the 4th or residuary' clause. If this view can properly be entertained, resort may then be had to still another rule of construction, which is that in such circumstances the language of the will may be subordinated to the intent of the testator. (Phillips v. Davies, 92 N. Y. 199.)
Green, J., concurred.
Judgment reversed and a new trial ordered, with costs to abide the event.