The action was brought to procure the construction of the will and codicils of Adam W. Spies, and to determine the rights and interests of the parties in the property left by the testator. The question involved in this action relates to the 12th clause of the will and the 4th clause of the second codicil. The will was executed in July, 1881, and the second codicil July, 1890. By the will, the testator made certain specific devises and bequests, and then gave all the residue of the property to the executors and trustees named in the will, in trust, to make certain specific disposition of the income during the lifetime of his daughter' Sarah Ann Kip, and then, by the 12th clause, he provided as follows : “ At the death of my said daughter Sarah Ann, to close this trust, I direct that my executors and trustees convey and transfer all of my estate, both real and persona], then remaining in their hands to such of' my grandchildren as shall then be living (except my said granddaughter Sarah Ann French), viz., Arthur Be Witt Cochrane, Adam W. Spies Cochrane, Cornelia Elizabeth Schell, Henry Spies Kip, Garret Berg Kip, William Rudolph Kip and Florence Adele Kip, equally, share and share alike; and I hereby give, devise and bequeath the same to such seven grandchildren, but if any of said seven grandchildren shall die previous to' the decease of my daughter Sarah Ann, leaving issue him, her or them surviving, then I direct that such issue shall take the share to which their parent would have been entitled hereunder (if living) under this clause of my will, said shares to be received by said grandchildren or their descendants free from any *274control or claim of any husband that she or they may have at any time.”
By the 4th clause of the second codicil he further provided as follows:
• “Fourth. I hereby direct that my said granddaughter, Sarah' Ann French; shall be included in the divisiqn of my estate as mem tioned in the twelfth clause of my said last will and testament and shall share therein equally with my other seven grandchildren, I hereby directing that said twelfth clause of said will shall apply to her and her heirs as though she had been originally named therein.”
The testator died May 31, 1891, leaving him surviving his daughter, Sarah Ann Kip, a widow with -four children, viz., Florence Adele Humbert, Henry Spies Kip, William Rudolph Kip and Garret Berg Kip, also three grandchildren the children of his deceased daughter, Hilda M. S. Cochrane, viz., Sarah Ann French, Adam W. S. Cochrane and Arthur DeWitt Cochrane. Sarah Ann French, at the testator’s death, had two children living, viz., Seth B. French and Hilda Cochrane French, and another child has been born to her since, viz., Ellen Mercer French. Testator also left him surviving another grandchild, the child of his deceased . daughter, Mary S. Barnes, .viz., Cornelia Elizabeth Schell. These eight grandchildren were the persons named in the will and second codicil and it will be observed that the eighth grandchild, Sarah Ann French, excepted in the 12th clause of the will, but brought within its provision by the 4th clause-of the second codicil had, at the time of the testator’s death, two children living and one has been born since. The trial took place in October, 1896. The will was made in July, 1890. At the' time of the trial the children of the eighth daughter, Sarah Ann French, were seven years and five years' and nine months of age respectively. None of them had been born, therefore, when the will was made —1881 ■— and only one of them when the codicil was made in 1890. A second one was born after the second codicil was made, and before the testator’s death, and the third had been born since testator’s death. The grandchild Florence Adele Humbert was married after the death of the testator and died soon after in October, 1895, intestate, leaving her surviving a husband, the appellant, but no children. The daughter of the testator, Sarah Ann Kip, and the other seven grandchildren are still living. The *275practical question involved in this action was whether the appellant, after the death of his wife, had any interest personally or as administrator of his wife’s estate in the property disposed of by the 12th clause of the will and the 4th clause of the second codicil. The parties seem to agree that the provisions of the will and codicil in question gave to the eight grandchildren vested remainders in the property. The only question is as to when and for what reason such remainders were divested and passed to other parties.
The appellant claims that such remainders were divested only by the death of the grandchild leaving issue before the death of Sarah Ann Kip, while the respondents claim that the remainders were divested by the death of the grandchild with or without issue before the death of Sarah Ann Kip. If there were issue, the interest went to the issue ; if no issue, the interest went to the surviving grandchildren and their descendants. In this case there were no .issue. The appellant claims, therefore, that the remainder never- became divested, but at the death of his wife became vested absolutely and the. interest passed to her heirs and next of kin, while the respondents claim that the remainder became divested at the death of Mrs. Humbert and passed to the seven surviving grandchildren and their descendants. It is not disputed that the testator might legally have disposed of the property in either way. The only question is what disposition he did make. It is a question of the construction of the language used. If the real intention of the testator is apparent, effect should be given to such intention without regard to technical rules or the use of particular words. It seems to u’s there can be no doubt as to what the testator’s intention was. He commenced the 12th clause of the will by the declaration that he desired to close the trust at the death of his daughter, Sarah Ann Kip, and for that purpose he directed his executors and trustees to dispose of the residue of his property remaining in their hands at that time. How ? By conveying and transferring it to such of his grandchildren as should then be li/ovng equally, share and share alike, and the only limitation of this direction is found after the word “ but ” a little further on in the clause, viz.: “ If any of said seven grandchildren shall die previous to the decease of my daughter Sarah Ann, leaving issue him, her or them surviving, then I direct that such issue shall take the share to which their parent would have been entitled hereunder (if living).”
*276Here is an: intention, expressed as clearly as language could do it,' to give the whole property to such grandchildren- as should be living when his daughter. Sarah Ann died, unless some of the grandchildren should have died before that time leaving issue,' in which case the issue should take the interest the 'parents would have taken if they had lived. This language is too plain to be disregarded or set aside by any technical rules of construction or fine spun arguments founded upon decisions in.other cases. It-is-not reasonable to suppose that the testator would so plainly express his. design and still mean by the other words in this clause nf the will to entirely change the disposition so clearly -indicated. He says .: “I hereby give, devise and bequeath the'same to such seven grandchildren.” By this language he clearly meant to give to such grandchildren the same interest he' had already indicated so plainly. Expressed more clearly, the clause- would have read : “I hereby "give^.' devise' and bequeath such interest in the property to such seven grandchildren.” The word “ same ” as used in the will clearly means not “such property”- but “such interest in the property.” as already indicated, and the interest so given to any grandchild was subject to be divested by the death of the grandchild before the death of Sarah Ann Kip, so that the surviving grandchildren would take it unless such deceased -grandchild left issue, and in that event the issue would -take such' interest. Such a, construction as this would give a reasonable effect to the whole of' this clause of the will and carry out - the clear intention of the testator. The construction contented for by the appellant would render all the language in the clause directing the disposition of the property by the executors and trustees at the death of Sarah Ann Kip, nugatory. It could never have been intended to express the intention of the testator so plainly as this clause does' it, as to the disposition of the property at the -death of - Sarah. Ann Kip, and then render all this language nugatory by inserting the ■ words as to present gift. The. present gift was not intended to be contradictory of such clearly expressed, intention but in harmony with. it, and the construction we have given alone will accomplish such intention. We think no force should .be given .. to the word “ heirs ” in. the 4th clause of. the codicil. Evb ■dently the' only purpose of the testator in making that codicil was *277to include his- eighth grandchild, Sarah Ann French, in the disposition of the property covered by the 12tli clause of the will. He could have had no thought then of changing the clause in the will in other respects, or of giving any construction to any language in ■ the will. The-words “ issue” and “ descendants” were used interchangeably in the 12th clause of the will, and the word “ heirs ” in the codicil was evidently used as a synonymous term. It was not used in any technical sense, and no argument should be based upon the use of this word “ heirs ” to change the reasonable construction already given by us of the. 12th clause of the will.
We think the decision of the trial court was right and that the judgment entered thereon should be affirmed, with costs.
Van Brunt, P. J., and O’Brien, J., concurred.