Two questions are presented for decision: First, was the legacy to Mary Peck, in the 9th provision of the will, a vested legacy so that it did not lapse by the death of Mary Peck before the death of the widow % The trial court has held that it was, and with this conclusion we entirely agree.
The second and more important question is as to the estate given to the widow by the 10th and 11th paragraphs of the will. The trial court has found that she has simply taken a life estate in the property, real and personal. The contention of the widow is that she has more than a.life estate, and has the right to use so much of the corpus of the property as she may need or desire during her life.
The provisions of the 10th paragraph of the will are explicit. In that paragraph there is no devise or bequest to her of anything more than the use, income and control, and that only for her life or while she. shall remain unmarried. Upon this appeal the meaning of this paragraph, standing alone, is not questioned by her. Her argument, however, is that in the 11th paragraph she is impliedly given a greater estate, because the estate given to the remaindermen is qualified by the phrase “ if any there be.” She contends that, this phrase indicates an intention in the testator to give to her the right not only to the use of the property, but to the principal thereof, if she shall have need or desire to use the same.
This construction can only be justified if the phrase “ if any there be,” limiting the estate which goes to the remaindermen, could, have no other significance. If, however, this phrase can be given any other significance whatever, it will not operate to enlarge the estate so explicitly and clearly given to her by the 10th paragraph of the will.
In the Yth paragraph of the will $1,500 is directed to be paid to one Teed D. Owens in such sums and at such times as the widow of the testator shall deem best. In the 8th paragraph $500 is to be given to Ellen J. Smith under similar conditions, and in the 9th *216paragraph $1,000 is to be given to three legatees after the death of the widow. No provision is made as to the income from the $1,500 or $500 or $1,000 provided in the 7th and 8th and 9th paragraphs of the will .before payment to the legatees. The use of these moneys, therefore, before payment to the legatees, would clearly, under the 10th paragraph of the will, belong to- the widow. The legacies under the 7th and Stir paragraphs of the will were to be' paid at such times as to the' widow should seem best. If, however, they were not paid during the life of the' widow, it is clear that those legacies, as well as the legacy in the 9 th paragraph of the will, must.be paid after the death of the widow and prior to the distribution of the residuary estate. It is thus provided in the beginning of the 11th paragraph', “ after the death of my said wife and the payment of the legacies. aforesaid I give, devise and bequeath all the rest,' residue and remainder- if any -there be of my estate both real and personal.” By reference to the inventory that is in the record, a large part of the estate was in personal obligations unsecured. The testator might well, therefore, have contemplated" that with the possibility of losses upon securities, with the expense of administration, with the destruction incidental to the use and with the payment of the legacies provided for, the personal property, if not all of his property, might be consumed, and nothing would be left for the remaindermen. The provision is in substancé that what remained of his real and personal property, “ if any there be,” shall pass to the remaindermen. If under the provisions of the will the personal property alone might be exhausted either in the payment of legacies, debts.or otherwise before the time of the payment, the phrase “if any there be ” might be deemed to contemplate that contingency, even' though' the testator had in mind that the real estate would remain for the remaindermen. To give significance, therefore, to the phrase in controversy, it is not necessary- to find an intention, in the testator to give to the widow any greater estate than is explicitly given to her in the 10th paragraph of the will. The construction contended for by the widow is a violent one, to be adopted only in case of imperative necessity. In the case of Leggett v. Firth (132 N. Y. 7) the will gave to the wife “ all the rest and residue of my real estate,” and then concludes: “ On her decease the remainder thereof, if any, I give and devise to my said children.” *217It was there held that the phrase “ if any ” limited the estate of the remaindermen and characterized the estate of the widow as an estate greater than a mere life estate. In that case it was found that under the terms of the will the phrase. “ if any ” could be given no other significance. In the case at bar the testator’s property was not given to the widow, but only a life use thereof, and the phrase “if any there be” as qualifying the estate of the remaindermen may be given' full significance without reflecting to enlarge the estate of the life tenant. In the case of Kendall v. Case (84 Hun,. 124) a life use only was primarily given to the wife, and the use in the will thereafter of the phrase “ if any is left,” in referring to a power of sale of the property, was construed to enlarge her life estate to a right to use the corpus of the property. But in that case under the terms of the will no other significance could be given to the phrase “ if any is left.” Recognizing for the argument the full force of the decisions quoted, the implied power contended for by the widow from the use of the expression “ if any there be ” in paragraph 11 is not only not found by necessary construction, but. is one unwarranted either by the context of the will or by the surrounding circumstances which give character to the expressions, therein used. We agree, therefore, with the learned trial court in the conclusion reached.
All concurred, except Parker, P. J., dissenting in an opinion in which Edwards, J., concurred.