This appeal calls in question the correctness of the construction put by the learned surrogate of Richmond county upon the last will and testament of Anna M. Gordon, deceased, upon an- application for the probate, of that instrument. The will, omitting the formal portions, reads as follows:
"First. After my lawful debts are paid, I give, devise and bequeath to my dearly beloved husband, Thomas H. Gordon, all the estate both real and personal'of which I may die seized, to have, hold and enjoy during his lifetime and to his issue after him.
*440“Second. Should my said husband die without issue it is my will that iny tapestries be divided among my nephews and nieces as they shall elect, and that all the residue of said estate shall go to my brother James.
“ I hereby appoint James Feeny to be executor of this my last Will and Testament.”
The learned surrogate held that the death of the husband wit'h-out'issue, mentioned'in the 2d paragraph of- the will, referred to his death within the lifetime of the testatrix, and that the gift of the estate of the testatrix to James Feeny (except the tapestries) was. an absolute gift subject only to the life estate of Thomas H. Gordon, the husband.
This view of the effect of the instrument was- manifestly based upon the rule that where there is a devise or bequest to one person and in case of his death to another, the contingency referred to is a death in the lifetime, of. the. testator. (Matter of New Yorlc, L. & W. R. Co., 105 N. Y. 89.)
It is well settled, however, that this rule has no application when the first devisee or legatee takes a life estate. It is only applicable when the prior gift is absolute and unrestricted. ' (Fowler v. Ingersoll, 127 N. Y. 472, 478; Matter of Baer, 147 id. 348 ; Lyons v. Ostrander, 167 id. 135.)
Under the exception to the first mentioned rule, established by the cases cited, a correct construction of the will under consideration gives the surviving husband, Thomas H. Gordon, a life interest in the entire estate of the testatrix. If he has issue, such issue will, upon his death, take the entire estate. If he has no issue, then, upon his death, the estate, with the exception of the tapestries, will go absolutely to James Feeny, the brother'of the testatrix.
Under the authorities, such seems to us the clear effect of the provisions of the will, and the decree of the Surrogate’s Court should be modified in- accordance with these views.
Goodrich, P. J., Bartlett, Hirsohberg and Jenks, JJ., concurred. ■ •
Decree of the Surrogate’s Court of Richmond county modified, ' with costs, in accordance with opinion of Woodward, J.