I find myself unable to concur in the opinion of Mr. Justice Spring in this case.
It is a familiar rule and one applicable to this, as well as to all similar cases,.that construction should be given toa will or any portion thereof with regard to the intent of the testator, when such intent can be ascertained from the language of the instrument itself, and with this rule in mind I find no difficulty in giving to the 14th clause of the will in question the same interpretation as that adopted by the court below.
By this clause the testator gave to his wife, “ the use of all the rest and residue of my mortgages, bonds, notes, accounts, etc., and *454the debts thereby represented and the moneys due thereon,” with certain exceptions which it is unnecessary to specify, during her natural life, and at her decease he gave and bequeathed to his children “ all the rest and residue thereof then remaining, share and share alike.”
Giving to the words of this clause their natural meaning, it seems to me quite plain that the testator intended that his wife should have not only the income arising from the property mentioned, but the right to use that property for her individual benefit during her lifetime, and hence to dispose of the same or any portion thereof as she might deem proper. Otherwise, it may be asked why the testator expressly provided for the disposition of all the rest and residue remaining of the property specifically referred to in this clause at the death of his wife. The words “ then remaining ” certainly should be given some meaning, if possible, and I can conceive of no reasonable construction to be placed upon them, in view ■of their context, other than the expression of an intention upon the part of the testator to permit his wife to so use and dispose of the corpus of the property bequeathed to her in the 14th clause of his will, as that but a portion thereof, if any, would be left at the time of bier death.
The views to. which I have here given expression are not only in accord with what I believe to be a reasonable rule of construction, but they are apparently supported by authority. (Flanagan v. Flanagan, 8 Abb. N. C. 413; Thomas v. Wolford, 49 Hun, 145; Kendall v. Case, 84 id. 124; Smith v. Van Ostrand, 64 N. Y. 278; Campbell v. Beaumont, 91 id. 464; Leggett v. Firth, 132 id. 7.)
McLennan, J., concurred.
Decree of Surrogate’s Court reversed, with costs of this appeal.