By the third clause of his will the testator devises the land in question to his wife for life, and then by the fourth clause, “ at the' death of my said wife ”, to his four children, “ share and share *633alike, to have and to hold the same to them and their heirs and assigns forever These words undoubtedly vested at the moment of the testator’s death an absolute future estate in fee in each of the said children, subject to the wife’s life estate. The words, “ at the death of my said wife ”, do not refer to the time of such vesting, i. e., the vesting in interest, but only to the future vesting in possession, viz., at the termination of the life estate (Moore v. Lyons, 25 Wend. 119; Connelly v. O'Brien, 166 N. Y. 406; Ackerman v. Ackerman, 63 App. Div. 370; Davidson v. Jones, 112 id. 254; Trowbridge v. Coss, 126 id. 679).
But it is said that this devise is cut down by the words which immediately follow it from an absolute vested estate, either to a contingent one, or else to a vested estate liable to be divested by the death of the devisee during the running of the precedent life estate, viz.: “ and in case any of my said children shall have died leaving issue, the share of the child so dying shall descend to and vest in his or her issue, and in case of the death of any child without leaving issue, his or her share shall descend to and vest in his or her surviving brothers and sisters ”. It is plain that it is not cut down to a contingent estate, for a future estate is contingent only when “ the person to whom or the event on which it is limited to take effect remains uncertain ” (Real Prop. Law, § 30); which is not the case here. The persons and the event were both certain, and the estate vested at once on the testator’s death in his children. Nor was it cut down to a vested estate liable to be divested by the death of the devisee during the existence of the precedent life estate. The settled rule is that such a construction is to be avoided if the will will bear the contrary construction. The law disfavors such a disinheritance of the remainderman; it favors the absolute vesting of the estate in him ; and therefore the words, “ and in case any of my said children shall have died ”, are to be construed as meaning during the life of the testator, unless the context, or society of words in which they are found, plainly prevent it (Cases supra). In place of preventing it here, the context is consistent with that meaning. The words of devise concededly vest an absolute estate at the testator’s death; and the said words following simply mean that if any child shall have died, so that the estate cannot so vest in him or her, it shall “ vest ” instead (for that is the word used) in his *634or her Issue, or surviving brothers and sisters if there be no issue. The words certainly have to be taken to mean that if any child “shall have died” during the testator’s lifetime, the share that would have vested upon the testator’s death under the will in such, child shall vest instead in his or her issue, or surviving brothers and sisters. If that were not the meaning there would be an intestacy in respect of any such child. The further meaning, viz., that the testator also meant any child dying during the life tenancy should not be added unless the context plainly requires it, and it does not. A construction which would tie up and complicate the title should not be adopted unless the words used are plainly of that meaning, i. e., plainly show that that was the testator’s intention. Settled rules of construction have to be adhered to unless overridden by the clearly expressed intention of the testator. Title to this property was taken in good faith from the lifetenant and the four devisees, who survived the testator, and was also conveyed again. It should not be upset on a construction of the will which is not required by the words of the testator.
There is another settled rule against the construction claimed by the defendant, viz.," where words apt to vest an absolute estate are used, it cannot be cut down by subsequent words which are equivocal, or do not express an intention to that effect as clearly and unmistakably as the preceding intention is expressed (Washbon v. Cope, 144 N. Y. 287; Banzer v. Banzer, 156 id. 429; Goodwin v. Coddington, 154 id. 283).
In the case of Lyons v. Ostrander (167 N. Y. 135) the will vested the title in trustees for the lifetime of a son, and did not vest the remainder at the testator’s death in remaindermen, but postponed such vesting until the death of such son, leaving it contingent in respect of who the remaindermen should be; whereas here there was no trust but a vesting of title in the remaindermen at once upon the testator’s death, the only question being whether such vested title was liable to be afterwards divested. The two cases are different.
The plaintiff should have judgment.
Jenks, J., concurred.
Judgment for the defendant in accordance with the terms of the submission.