I dissent from the conclusion reached by a majority of this court. .While the Maiiice will now in question has been the subject of elaborate judicial discussion (Manice v. Manice, 43 N. Y. 303), the decision heretofore rendered is of no aid on the present appeal, as the particular part of the will now in dispute was not then considered.
By the 16th clausé a trust was established during the life of testator’s widow, and upon her death further trusts were provided for, one of which was to continue during the life of Mary 0. Lockwood, and another during the life of Frances Isabella Manice, both daughters of the testator. Then, among numerous other provisions relating to the trusts, appears the one which has given rise to this litigation and which reads as follows: “ Providing, however, that in case either of my said daughters shall die unma/rried and without learning lawful issue her surviving, she is hereby authorized and empowered to make an instrument of appointment in the nature of a last will and testament, disposing of the share of my estate so as aforesaid to be held' in trust for her benefit.”
This controversy relates to the trusts established for the «benefit of the daughter Frances Isabella Manice who, after the testator’s death, married the present appellant Smith. . She died in 1903, leaving her husband surviving but no surviving issue, her two sons having predeceased her. By her will she disposed of the corpus of the trust estate, and the question now presented is whether, under the language of the Manice will quoted, she had the right to so dispose of it, or whether upon her death, without surviving issue, her interest reverted under other clauses cf the Manice will.
It is conceded that if the daughter had hot married she would have had the absolute right of disposing of her interest in the estate by will, and, in my opinion, it was not the intention of the testator to deprive her of that power if she- married, unless, as the result of such marriage, there should be issue living at her death. The pur•pose of the testator, it seems to me, was to preserve his estate for *156the children of his daughter in case they should survive her, but if she.died without leaving- surviving issue, then she was to have the power of disposing of her interest in-the estate by her will whether she died unmarried or not, "
I am -not unmindful of the fact that in order to give the will this 'construction it.is necessary to change the word “ and ” in the language quoted to the word “ or,” but, as said in Roome v. Phillips (24 N. Y. 463, 470), the rule is settled and should be adhered to that “ in all cases or 'is to be taken for and, and and is to be taken for or as may best comport with the intent and meaning of the grant- or devise.” (See, also, Miller v. Gilbert, 144 N. Y. 68, 74.).
For the .reason above stated this in my opinion is one of the cases where such' a change should be made. To do so is to carry out -the intent of the- testator -as I -read -the will, and unless- it is done, the phrase quoted is redundant. The words are “ unmarried and without leaving lawful issue.” If the daughter were unmarried she could not have-lawful issue and the latter words of the phrase are superfluous. When, however,, the conjunction is changed so that .the phrase reads “ unmarried or Without leaving lawful issue,”' then the meaning becomes plain and the purpose of the testator clear, ■ to wit, to preserve the estate to the children of his daughter, if any survive her, and'to. give her the power of testamentary- disposition in case there should be no surviving children.
I- cannot agree with the assumption of tire.referee, as expressed in his opinion and as approved by the prevailing opihion of this court, that the testator may have intended to designate by the word “ unmarried ” not only a daughter who had not married at all, but also one who might be a widow. To construe “ unmarried as synonymous with “widow” is to give the word a strained and unnatural meaning not in accordance with its common and accepted use, and there' is. nothing in the will itself which would sanction such a Construction. ■N ■
For these reasons I am of the. opinion that Firs. Smith had -the right to dispose of her interest in the estate-by will, -and,' therefore, that the judgment appealed from, which holds otherwise, should be reversed.
Judgment affirmed, with costs.