Judgment affirmed, with costs, on opinion of B no wit, J., at Special Term.
All concurred.
The following is the opinion of Beowh, J.:
Beown, J.:The proper construction of the will of Joseph W. Meeks, deceased, depends upon the meaning of the words in the 5th clause, “ excepting that part hereinbefore appropriated.”
If by that expression, the testator intended to refer to the corpus of the funds that were directed to be set apart by the 2d and 4th clauses of the will, then there is no disposal of those funds by the 5th clause, and their disposition is to be governed by the Statute of • Distribution. • '
The expression referred to should be given such meaning as will effectuate the general intention of the testator in the disposal of liis estate, if such intent can be ascertained from a reading of the whole will.
That the testator intended to dispose of his whole estate and not to leave any.of it to be distributed under the'statute to the next of kin, I think, is clear.
The objects of his bounty were to be his wife, children and grandchildren. The whole estate was to be given to them.
If the widow remarried, the fund directed to be set apart in the 4th clause was to be divided and distributed in the same inanner and to the same persons as he had directed as to his other property in the 5th clause. It is, exceedingly improbable that the testator intended to provide for the disposition on the contingency of his widow’s remarriage, an event unlikely to occur, and intended that, in the probable contingency of her dying as his widow, the fund should be distributed under the statute: It -would require very plain language to lead the court to that conclusion.
Again, the 6th clause does not dispose of the corptos of the fund to be set apart to provide the annuity for Thomas Donnelly. Yet *527it clearly was the intention of the testator to provide for the disposition of that fund. It is expressly stated that it was to form a part of the residuary estate, and to be distributed in accordance with the provisions of the residuary clause of the will. Likewise he provides that the Mount Vernon house is to form a part of the residuary estate, and be disposed of “ as hereinafter directed and provided.”
In the 5th clause he provides that until the conversion of his estate into money and the division made as provided, it is his will that his children receive the income of the whole estate, share and share alike, subject to the special bequests.
His widow might have died shortly following his own- death, in which case the income bequeathed to her would have gone to the children under the will and not under the statute.
Donnelly might have died before the fund was set apart to produce his annuity, in which case-the income thereon would have gone to the children under the will.
All these provisions indicate an intention oil the testator’s part to dispose of his whole estate for the benefit of his wife and children and his old servant Donnelly.
He speaks of a residuary clause of his will, and he referred by that term to the 5tli clause.
If the expression “ excepting that part hereinbefore appropriated,” be held to have relation to the bequests to Donnelly, to his widow and to his executors, and not to the corpus of the fund set aside for them, the instrument is made consistent and harmonious with his intention. All his property is then to be divided. There is nothing in the instrument making necessary a division of the whole estate at once. That portion which would be set apart to provide the Donnelly annuity and the widow’s annuity and the executors’ compensation vested immediately in persons named in the 5tli clause, subject to the interests of Donnelly and the widow and the executors, and the actual division would be made by the executors on the deaths of the life tenants. This construction of the will may make surplusage of the 6th clause, but that is not an obstacle to the conclusion I have readied.
The cardinal rule of construction of all instruments of this character is that the intent of a testator must be sought for in the provisions of the will, and, when it is ascertained, effectuated if the *528language used permits. The court may transpose words and phrases and read the provisions of' the instrument in a different order from that .in which they appear, • and insert and leave out provisions if necessary. And. when susceptible of it that construction will be given which renders the instrument operative rather than invalid, and an interpretation that will produce intestacy as to any part of the estate is to be avoided if possible. (Hoppock v. Tucker, 59 N. Y. 203; Phillips v. Davies, 92 id. 199; Du Bois v. Ray, 35 id. 162.)
It may not have seemed to the testator that it was unnecessary to insert the 6th clause, and it does no violence to the instrument to hold that that was a useless provision. On the contrary, its presence in the will has no necessary tendency to show that the testator intended in the case of his wife’s death to leave the fund undisposed of, while its rejection renders the will complete and harmonious.
My conclusion is.that the testator by his will disposed of his whole .estate, and that the fund set apart by the 2d and 4th clauses of the will are a .part of the residuary estate, and aré disposed of' by the 5th clause.
Findings and decree may be prepared and submitted to the cdurt on notice to all parties.