This appeal is taken by the plaintiff and by James Burrows, one of the defendants, from a final judgment in a partition action in favor of the defendants Theiss and Campbell, dismissing the coin-*454plaint upon the merits, and adjudging that the plaintiff and the remaining heirs at law of Ralph Burrows, deceased, have .no title vested, contingent or otherwise, in the real property set forth in the complaint, nor any interest therein.
The question involved herein is whether the interest of Susan Bray under the following will is a life estate only or whether it was a fee. She was the housekeeper for Ralph Burrows, and lived in his household during the lifetime of his wife, and while the latter lived there, as well as after his wife’s death. Susan Bray’s childrent also lived in the same house. Ralph Burrows died at the city of New York August 10,1882, leaving a last will and testament, dated January 29, 1879, as follows:
“ In the Name of God, Amen, I, Ralph Burrows, of Morrisania, New York City, County and State of New York, do hereby make, publish, ordain and declare this my Last Will and Testament; that is to say:
“First. I give and bequeath to Susan Bray, widow of Richard Bray, all my real estate, with the buildings and appurtenances, together with my burial plot in Bensonia Cemetery, situate in Morrisania aforesaid, together with my household furniture and wearing apparel, together with the sum of One thousand Dollars in cash, and the interest during the term of her natural life upon the moneys now invested in two certain mortgages upon real estate now held and owned by me against Thomas S. Morris and Bernard M. Chave, respectively, to have and to hold in her own right and to her own use so long as she may live single and unmarried, said moneys in said two mortgages to be kept on investment during the lifetime of said Susan Bray, she to receive all the interest and income thereof — and in case she shall marry again, then in that case all the property herein bequeathed to her shall revert to my Estate and be distributed among my heirs at law, share and share alike.
. “ 2d. At the decease of the said Susan Bray, I direct that the moneys secured to be paid by the said two mortgages be distributed and given to my heirs at law, share and share alike, that is, as to the principal sum thereof.
“ 3d. I give and bequeath to my niece Elizabeth Hayes, daughter of my sister Mrs. Anne Hayes, of Cattrick, Yorkshire, England, the sum of One thousand Dollars cash.
*455“3d. I also give and bequeath to my said niece Elizabeth• Hayes, in trust for my niece, the daughter of my brother James Burrows, late of Cattrick, Yorkshire, England, the Christian name of which niece I cannot now recollect, but which niece is in a condition of mental impairment, or incapacity, the sum of One thousand Dollars cash.
“ tíh. The rest and residue of my estate I direct to be distributed between and given to my heirs at law, share and share alike.
“ 5th. I hereby nominate and appoint my friends Bernard M. Chave and Thomas S. Morris, residing at Morrisania, New York City, to be the executors of this my last Will and Testament, hereby revoking all former wills by me made.”
This will was admitted to probate October 9, 1882. The premises in question, consisting of two lots of land in the borough of the Bronx, were bought by Burrows respectively in 1860 and 1864. After his death title passed through various conveyances by Susan Bray and others until it finally was vested, at the time of the commencement of this action, in the defendants Theiss and Campbell, in the proportion of three-fourths and one-fourth. Susan Bray died, unmarried, November 20, 1906.
While the proper interpretation to be placed upon the provisions of this will is not without its embarrassments because of unskillful framing, the most reasonable one to be applied and that which is most in accordance with the expressed wishes of the testator, is that under the 1st clause of this will a fee in his real estate was devised to Susan Bray. On analysis, this clause contains (1) a gift of all his real estate to Susan Bray, together with (2) a gift of his burial plot in Bensonia Cemetery, together with (3) a gift of his household furniture and wearing apparel, together with (4) a gift of the sum of one thousand dollars in cash ; and (5) “ the interest during the term of her natural life upon the moneys now invested in two certain mortgages,” “ to have and to hold in her own right and to her own use so long as she may live single and unmarried, said moneys in said two mortgages to be kept on investment during the lifetime of said Susan Bray, she to receive all the interest and income thereof.” Then comes the general qualifying clause that in case Susan Bray should marry again, then in that case all the property bequeathed *456to her should revert to his estate. In other words, the clause beginning with “and the interest during the term of her natural life” and ending with “she to receive ail the interest and income thereof” is complete in itself and refers solely to the moneys invested in the' two mortgages. It is the only clause which refers to the income from property and not to a gift of property itself. It is followed by a dash, and then comes the clause stating the conditions upon violations of which her title should cease in the property bequeathed to her; that is (1) the real estate (for the word “ bequeath ” is used in making the gift of it to her); (2) the burial plot; (3) the household furniture and wearing apparel; (4) the $1,000 in cash. Only in this way can an utterly unnecessary repetition be. avoided ; for if as appellants contend the clause commencing with “ to have and to hold ” qualities the tenure of all the property thereinbefore devised or bequeathed, the clause after the dash becomes absolutely unnecessary. Furthermore, the phrase “ to have and to hold ” immediately following the description of the two mortgages and then immediately followed by instructions as to the reinvestment of the principal of those mortgages, logically and by every rule of reasonable construction should be held to refer to that class of property alone, where there is another provision which by its very terms prescribes the tenure upon which the property (as distinguished from the income on property) .is held. The construction sought for by appellants would, among other results, give Susan Bray a life estate only in decedent’s wearing apparel and in his burial plot, although the seeming absurdity of the latter provision is somewhat modified by the fact that the cemetery had been closed by the local board of health in 1872, a portion having been taken by condemnation proceedings in 1868. The two mortgages referred to constituted a very substantial portion of the estate, amounting to $4,000 or $5,000. Moreover, the 2d clause of the will expressly provided for the distribution of the principal of these two mortgages among his heirs at law upon the decease of Susan Bray, but made no specific mention of any of the first four classes of property bequeathed directly to Susan Bray. The will provided for two specific legacies and had a formal residuary clause, but there is no- proof as to what estate was left by decedent applicable to these funds. If the clause *457beginning “ and in case she shall marry again ” applied to all the property including the life interest in the mortgages the 2d clause of the will would be entirely unnecessary. Under the construction adopted the 2d clause was necessary, for the provision commencing 66 and in case she shall marry again ” applies only to the property left outright, and does not include the mortgages. It would seem, therefore, that the gift by decedent to Susan Bray of his real estate, coupled with a condition that should she marry again the property should revert to his estate arid be distributed among his heirs at law, vested in Susan Bray a fee simple on condition and upon her death without having violated the condition it became a fee absolute. Meantime the remainder in the heirs at law was a conditional limitation.
The judgment appealed from should be affirmed, with costs to the respondents.
McLaughlin and Miller, JJ., concurred; Ingraham, P. J.,and Laughlin, J., dissented.