As I interpret the meaning of the will which is the subject of this litigation, the testator gave to his wife by absolute bequest all his household goods and personal property to be her own and in lieu of dower. He also gave to her the use of his homestead so long as she should live' which, as appears, consisted of about fifteen acres of land situate in the village of Sheridan, IST. Y. By the 2d provision of the will it is provided:
“ Second. I declare that after the death of my wife, that the homestead be sold and the proceeds be equally divided between my children that are living at that time, share and share alike.”
Eeally, the only question involved here is whether the words “ at that time,” used in the 2d clause of the will, refer to the *327time of the death of the testator or to the' time of the death of his wife. It seems clear, under the authorities, that those words refer to the time of the testator’s death rather than to the túne of the death of his wife, the life tenant. If not, it is easy to imagine a situation where the testator would have died intestate as to the homestead. In that case this would certainly result if all his children had died between the time of his death, which occurred on the 27th day of September, 1897, and the death of his widow, which occurred on the 11th day of October, 1909, a period of upwards of twelve years. Can it be claimed that under the language employed it was intended by the testator that he should die intestate in case his children had all died between his death and the death of his widow, the life tenant ? I think such, under the authorities, is not the fair interpretation of the will but that, on the contrary, the interpretation of the learned surrogate is correct; that the words “at that time,” used in the 2d paragraph of the will, refer to the time of the testator’s death; that the property vested at that time, subject only to the life use of the widow, and that the children living at the time of her death, or the issue of such children who had died, took an equal share of the proceeds of the sale of such homestead; that the provision directing that the property should be sold and that the proceeds should be distributed was only prescribing a method of procedure and did not in any maimer affect the rights of the testator’s children in the premises. It seems to me inconceivable that it was the intention of the testator that if three of his four children should die leaving issue before the death of his wife and only one of such children should survive, perhaps, without issue, such survivor should take the whole of the homestead property to the exclusion of the issue of the other children.
In the case of Lewis v. Howe (174 N. Y. 340) one of the questions at bar was whether a remainder vested in an adopted daughter at the death of the testator or whether a devise to her was defeated by her death before the death of the life tenant. Judge O’Brien, writing the opinion for the court, said (pp. 346, 347): “The question now is whether the remainder vested in the adopted daughter at the death of the testator or was the devise to her defeated by her death before the life *328tenant ? Except for the argument of the learned counsel • for the plaintiff I should suppose that such a question was not fairly debatable at this day, but he insists that it was defeated, and as to the remainder the testator died intestate. The clause contains a clear devise of a vested remainder in words denoting. a present gift, since he says ‘ I give. ’ The words ‘ to vest in her in fee upon the decease of my said wife ’ denote the time of possession and enjoyment. This clause of the will may be paraphrased as follows, in brief terms, and the meaning and legal effect will be clear: ‘ Subject to the power of sale contained in the first clause, I give to my adopted daughter the home where I now reside, to have and to. hold forever, possession and enjoyment to vest upon the decease of my said wife.’ The adopted daughter had a vested remainder under the will, which, upon her death, passed to the defendants, her heirs, subject to the life estate of the widow. This conclusion cannot be avoided without violating the plainest and most important rules of construction. It is elementary law that the courts should adopt that construction, whenever possible, which will avoid intestacy and which is' most favorable to the vesting of the estate devised, and which will avoid the disinheritance of the remainderman who happens to die before the. termination of the life estate. * * * (Matter of Russell, 168 N.Y. 175; Connelly v. O’Brien, 166 N. Y. 406; Matter of Brown, 154 N. Y. 313; Hersee v. Simpson, Id. 496; Corse v. Chapman, 153 N. Y. 406;. Campbell v. Stokes, 142 N. Y. 23; Haug v. Schumacher, 166 N. Y. 506; Nelson v. Russell, 135 N. Y. 137; Moore v. Lyons, 25 Wend. 119.) In the terse language of Chancellor Kent: ‘It is not the uncertainty of enjoyment in the" future, but the uncertainty of the right to that -enjoyment that makes the difference between the vested and the contingent-interest.’ (2 Kent’s Com. 206.) To hold that the testator intended by this clause of his will that no estate should vest in the adopted daughter except in the event that she survived the widow, and in case she did not that he intended to die intestate as to this property, would -be pushing construction to the verge of 'absurdity. It would be a new principle in the construction of wills to hold that a man who had deliberately created a fife estate in lands for the benefit of his widow and *329had limited upon that a remainder to his adopted daughter, all expressed in clear and appropriate words, nevertheless entertained the secret intention of dying intestate merely because he added to the devise of the remainder the words to vest on the death of my wife, ’ which expressed nothing more than what the law would do in case he had not used these words at all, since only upon the happening of that event does any such remainder ever vest in possession and enjoyment.”
As before suggested, if the words “ at that time ” in the 2d clause of the will are given the meaning suggested by the majority of the court, then it must follow, if all testator’s children had died before the death of the widow, that he, the testator, would have- died intestate as to the homestead property, and also that if all of said children save one had so died, such survivor would have taken the avails of all of such homestead property to the exclusion of the issue of the deceased children. It does not seem to me under the authorities that that can be the proper construction of that provision of the will. I think the learned surrogate properly held that the words used in the 2d clause of the will, “ at that time,” had reference to the time of testator’s death and that the ownership of the homestead vested in his children as of that date and that at the termination of the life estate each of the children then living and the issue of those who died were entitled to participate in the distribution of the proceeds of the sale of such homestead.
Assuming, for the purposes of this discussion, that the words " at that time ” referred to the time of the death of the widow, it is my opinion that those words had reference only to the time of the possession and enjoyment of the devise and that the ownership of the homestead property vested in the children at the time of the death of the testator, subject only to the life estate of his widow..
I, therefore, conclude that the decree of the surrogate was correct and should be affirmed, with costs.
Interlocutory judgment reversed and complaint dismissed, with costs in this court to appellants and with costs in the court below to the special guardian and to the appellants.