I am compelled to dissent from the views of the court in this case, and the following is a brief statement of my reasons :
It would appear from the judgment appealed from that the trial court held that, after providing for a life estate in Effie May More-house, the testator made no valid disposition of the balance of his-estate, but as to it died intestate.
• I am unable, to take that view of the testator’s will.
There is much learning in the books and cases in regard to the. construction of wills, but it does not seem to me profitable to enter into any lengthy discussion of the various rules laid down for the construction and interpretation of wills.
The interpretation and construction of each will depends upon its own phraseology.
The primary rule is, that the intention of the testator, where it is not contrary to law, must be carried into effect.
We must seek that intention .in the language of the will itself, and in sueh surrounding circumstances as are properly applicable. *254If we can ascertain it, then we know what the testator’s will is, and must enforce it.
•Of the will of Hiram Morehouse, in this case, we can say as was said in the case of Stimson v. Vroman (99 N. Y. 74, 79), “ The will is very unskillfully and bunglingly drawn, and we must arrive at the intention of the testator as well as we can.”
Without repeating the phraseology or discussing the various provisions of the will, I think it apparent from a reading of the whole will, that it was the intention of the testator, Hiram Morehouse, to give only a life estate to his daughter, Effie May Morehouse. It is eqiially apparent that he intended, in the event of his daughter dying without children, that two-thirds of the residue of the estate should go to the children of - his brothers. Such being the testator’s intention, and such intention not being contrary to law, ñor in conflict with any other portion of the will, it seems to me that the will here is effectual to give two-thirds- of the residue of his estate to the children of his brothers, his daughter having died childless.
It was also his intention that, in the event of the marriage of his daughter, her husband, if he survived her, should take one-third of his estate; but the testator omitted to make any final disposition of that one-third of his estate in the event of liis daughter dying without having been married. Having omitted to make any such disposition, such one-third descends to the heirs of the testator according to the Statutes of Descents, and could be disposed of by such heir or heirs by will or otherwise.
It follows from this that one-tliird of the estate passed by the will of Effie May Morehouse, and that the remaining two-thirds should be divided between the children of the brothers of Hiram More-" house, share and share alike, and the judgment appealed from should be modified accordingly.
Merwin, J., concurred.
•'Judgment reversed and complaint dismissed, with costs.