This appeal from the decree of the Surrogate’s Court involves the construction of the will of George O. Parker, deceased, and particularly of the 14th subdivision thereof, which, so far as pertinent to the pending controversy, reads as follows: “ After the payment of all my debts and funeral expenses as above • provided, I give and bequeath to my said wife,. Sarah Parker, the use of all the rest and residue of my mortgages, bonds, notes, accounts, etc., and the debts thereby represented and the moneys due thereon * * * during her natural life, and on her decease, I give and bequeath to my said children * * * all the rest and residue thereof then remaining, share and share alike.”
The respondent claims that the life use of the property given to her by the first part of the clause quoted is enlarged by the subsequent phrase “all the rest and residue thereof then remaining,”" thereby conferring upon her the absolute right to convert and dispose of the property referred to, and the learned surrogate has so interpreted the will, In this we think he is in error. The rule underlying his decision, that import must be assigned to every clause in the will-if possible to do so rather than reject any clause as surplusage, is a familiar one, and we apprehend it is unnecessary to trench upon it in the construction of this will.
The language which gives “ the use ” to the widow “ during her natural life ” is clear and explicit. There is no express authority in the will bestowing, upon her the right of disposition, and this declared purpose of the testator to give the use of his property to his widow should not be extended unless the intention so to do is obvious from the context of the will itself. It is plausibly urged
Beyond this we believe the general scheme of the will explains somewhat the significance of the clause in question. The 3d paragraph contains the only devise in fee to the widow, and upon that was an incumbrance of $2,700. He directed that this lien be paid out of his personal estate in order that his wife’s holding of the devised estate might be free from incumbrance. In the 11th subdivision he directed the payment of his debts and funeral expenses out of the particular personal property, “ mortgages, bonds, notes, accounts, etc.,” enumerated specifically as passing to the widow for life in the 14th paragraph. The testator also devoted the income of the two mortgages against his brother John to the support of his mother while she lived and then charged the support of the sister of his wife upon these two mortgages to the extent of using the principal thereof for that purpose if necessary. This charge might be of long continuance and years might elapse before the proceeds to be distributed among his children were ascertainable. These complications may have been of potential importance when the testator had in mind the restriction of the property ♦passing to his .children to what remained when his widow died. He did not wish her estate trammeled or herself hampered because his personal estate was to be substantially reduced for these various purposes. , .
It is also to be observed that the right or interest of the wife is “ after the payment of all my debts and funeral expenses ” which, as has been suggested, are particularly provided for in the 11th paragraph. The bequest is not made categorically after the payment of the lien on the house and lot devised to her. As a question of construction this, of course, would follow, but it justifies the suggéstion that the testator may have had in mind the lessening of
The other portions of the Will show, that the .testator had a defi■nite conception of the words “ the use of,” “ during her natural lifé,” as well as “ in fee.” Again, it is to be understood that the household furniture, carriage, etc., are given to the wife to use during her natural life. That is, the mere common personal property about the house and which by ordinary use would be in part consumed is only given to the widow for life.
Two purposes seem to have influenced the testator to make the disposition of the personal property in a separate paragraph instead . of embodying .it in the. item in which the household furniture is contained : First, in order that it might appear without confusion that the debts, etc., were to come from this property, and, second, to keep separate and distinct the miscellaneous property from that embarked in the oil business and which latter is specifically taken care of in the will. Full significance may, therefore, be given to the words “ all the rest and residue thereof then remaining ” without amplifying the use for life so definitely expressed in this 14th paragraph.
Many authorities are cited by the counsel for the respondent to uphold the conclusion reached by the surrogate, but they are not applicable. These cases may divided into two classes: First, those in which an estate in fee is devised and which is sought to be pared down by a subsequent clause. The courts adhere quite rigidly to the rule not to defeat the primary purpose unless the intent of the testator so to do is manifest. This series of cases rest upon a rule of construction peculiar to itself. The reasoning upon which it is based carried to its full extent supports the principle by analogy for which we are contending. That is, where the will in 'unambiguous language gives a specific estate it will not be amplified
Second, that class of cases where the interjected clause, kindred in expression, we concede, to the one in the will under discussion, limits the ultimate taking to what may be left after the widow has used whatever she needs. In each of those cases there was a bald, naked clause unexplained by any other part of the will, and this clause had to be interpreted literally or rejected wholly. These are both technical canons of construction, and after all each will depends upon its own language for its interpretation, the overruling principle being that the intent of the testator as gathered from the language used must dominate. Owens v. Owens (64 App. Div. 212) and Matter of Runcie (36 Misc. Rep. 607) are in line with our position.
In any event the petition should not have been dismissed. The right of the widow in the property in its aspect most favorable to her was not an absolute one, but a right of disposition during her life. The petitioner, therefore, had sufficient contingent interest to justify liei* in endeavoring to ascertain whether the property was safely invested or otherwise. (Code Civ. Proc. § 2514, subd. 11; Donlon v. Kimball, 61 App. Div. 31.)
The decree of the surrogaté should be reversed, with the costs and disbursements of this appeal.
Williams and Nash, JJ., concurred; dissenting opinion by Adams, P. J., in which McLennan, J., concurred.