(dissenting):
Charles W. Roxbury having survived the testator, I think he had a vested interest in such of the residuary estate as existed at the time of his own death, and that the "decree of the surrogate was right and should be affirmed.
T}ie intention of the testator seems quite plain. After the payment from his estate of the specific legacies which he had given, and taking out the provision for his monument, he must be presumed to have realized that a large residuum, consisting of more than half of his estate, would be left. The annuities or annual payments provided were not to be made from income for they were expressly stated by the testator in his codicil to be legacies payable in ten annual installments. It was, therefore, incumbent upon the executors to set apart $43,500 to meet these annual payments of $4,350 as they fell due each year for a period of ten years. This sum could not be permanently invested, because it was necessary to pay out one-tenth part of it annually. The testator undoubtedly assumed *598that his executors might be able in the prudent management of tire estate to realize some income from it. A small rate of interest could be had by depositing it in some' trust,company or like institution, and it wouldbe their duty so to do. The amount of interest which might be realized from this fund could not be finally determined until the period of ten years had elapsed. Mor could the executors finally account until the end of that time, unless all those whose legacies were payable in ten annual installments should sooner die, which it is not to be presumed the testator contemplated.
The 26th clause begins with the words, “ All the rest,' residue and remainder of my property,” which is' quite comprehensive enough tp take in all property not otherwise disposed of. But the ■ testator desired to specify particularly that there was another ■residue which might accrue after his death, to wit, the- interest which might be received on the $43,500, and so he uses the words, “ and the interest which may be received from the sums, set apart to pay the legacies hereinbefore devised,”' meaning, of course, the legacies- which were payable in. ten annual'installments.' This Was -an artificial residuum ' as distinguished from the general residue of bis estate, and it. seems to me that he had-this artificial residuum only in mind when he provided that in case of the death of any of his named residuary legatees “ before the whole of my estate shall, be divided, then I direct the said residuary .to be divided among the- survivors only- share and share alike.”
The words last quoted are those which raise the ambiguity with, respect to the residuary clause. By apt and comprehensive words previously used the testator gave all the remainder of his estate to named residuary legatees share and share alike. This absolute gift should not be cut down to one dependent upon survivorship to a time when the estate should be finally settled, unless the language used compels such construction. The ambiguous language can well 'lay hold of, and apply to, the artificial residuum arising from interest on the fund held to pay the installment- legacies, and I think it should be confined to that and not be held to apply to the general residuary estate, thus avoiding repugnancy and the cutting, down of the superior estatd previously given. Mor is it doing any violence to the language so to do. The words “ before the whole of my estate shall be. divided ” imply that a division of'a part, to wit, the. *599general residuum, had been previously made. The words “the said residuary ” may well be said to apply in the mind of the testator to something other than all the “rest, residue and remainder” of his estate, and to apply to the uncertain and comparatively small sum- of money which should be accumulated from the moneys held1, to pay the installment legacies, which amount, insignificant in comparison with the general residue of the estate, he desired should be distributed amongst those' residuary legatees who should be living at the time the amount was finally ascertained and the last and final accounting had.
This view is strengthened by reference to the body of the will. The testator had no children, but he did have a wife. He gave her the house and its furnishings and $5,000 only "in money, but no annuity or legacy payable in installments. He was not as liberal with her as he wás with his sister Mary, for he gave her $5,000 and $1,000 a year for ten years. The testator must have known that estates are liable to be involved in litigation, and that a final accounting by executors and a distribution of funds is uncertain in time and may be long postponed. Strictly speaking, the whole of the estate, under the provisions of the will, could not; lie divided until ten years had elapsed. To my mind it seems to be doing great violence to the apparent intention of the testator to say that he meant that his wife, for whom he had made so meagre a .provision, should have nothing during a possibly prolonged administration of the .estate, to maintain herself and the home he had devised to her, and no right to any part of his residuary estate unless she survived a final division and distribution by his executors. Manifestly he was also solicitous for the welfare of his sisters and those of his nephews and - nieces who were mentioned in his will. He could not have intended that, although they survived him, their right to any part of his estate should be postponed to any such indefinite and possibly distant period as the time when “ the whole of my estate shall be divided.”
The law favors the vesting of estates; and limitations over, and vesting subject to be divested, and postponing enjoyment of property, will not be imputed to a testator if it can be avoided. It is only where the testator has unequivocally expressed his intention to-create thesé artificial estates that the courts- will adjudge them to *600exist. It quite frequently happens that authorities are of little aid in construing a will, but it would appear that the principles laid down in Manice v. Manice (43 N. Y. 303) and Shangle v. Hallock (6 App. Div. 55) were quite applicable to the language found in the will under consideration. .
The interpretation put upon the will by the prevailing opinion seems to me at variance not only with the intention of the testator, but with the language which he used, and I, therefore, dissent from a reversal of the decree and vote for its affirmance.
Decree reversed, with costs to appellant payable out. of estate, and proceedings remitted to surrogate. Order filed.