After making certain bequests and devises, the testator, by the 7th and 8 th paragraphs of his will, disposes of all the rest and remainder of his property. .By the 7th paragraph he disposes of the residue of his i;eal estate for life to two nieces therein named, with remainder over to his two nephews, James Tims and William Whitwell, and a niece, Cornelia A. Robison. By the 8th paragraph he disposes of the residue of his personal- property in the same way, but not precisely in the same form. It is there provided that the residue of his personal property- shall be invested and the two' nieces receive the. income, and upon the death of the survivor the residue of the personal property is to be divided equally between the two nephews and the niece.
By the 9th paragraph of the will it is provided that “In the event of the death of James Tims, William Whitwell or Cornelia A. Robison before the legacies hereinbefore bequeathed or devised to them become vested in them or- before the time appointed for the distribution of the residuum of my personal estate, the legacies or distributive shares or both of the one or ones so dying shall not lapse, but Shall pass to their children them surviving in equal shares.”
James Tims died leaving him surviving a daughter, his only child, who also died after the death of Tims. The death of both Tims and his daughter occurred before the time appointed for the distribution of the residuary personal estate, and the question here is whether the share of James Tims in the residuary personal estate is to be regarded as undisposed of assets of the testator, or whether the title thereto vested in the daughter and is to be distributed as a part of her estate.
As regards the share of Thus, the rule is invoked against the *272personal representatives of his deceased daughter, that when a testamentary gift is found only in a direction to divide at:a . future time, the gift is future and not Immediate; contingent, and not vested. But, as is said by Judge Andrews in Goebel v. Wolf (113 N. Y. 405, 412), this rule, as others of like character, is subordinate to the primary canon of construction that the construction shall follow the intent, to be collected from the whole will, and that the intention of the testator so ascertained must prevail, and that the general rules, adopted by the courts in aid of the interpretation of wills must give way When on a consideration of the scheme of the will, or of special clauses or provisions, their application in the particular case would defeat the intention.-
The explicit declaration of the testator respecting the share of one dying before the time appointed for the distribution of the residuum of the personal estate is that the share of the one so dying shall not lapse, but pass to his children. It seems to me, as pointed out by counsel for the personal representatives of the daughter, that the. expression “ shall pass to ” is words of express gift; and if the expression a-I hereby give ” had been used, it could not have made the case stronger.
Whether the share in question vested in Tims upon the death of the testator and was divested upon the death of Tims, or was a mere contingent interest which never became vested in Tims at all, I think that upon the death of Tims his share immediately vested in and passed to his daughter, absolutely, subject only to the interest of the life beneficiaries.
If I am right in that conclusion it follows that the share in question belongs to the estate of the daughter, and judgment should be ordered directing the payment of the fund to the administratrix of her estate, with $100 costs to the plaintiff as stipulated.
All concurred, except Williams, J., who dissented in an opinion; Bobson, J., not sitting.