This is an action for the settlement of the accounts of the plaintiff as substituted trustee of the trust created by the will of John A. Haggerty, deceased, for the benefit of Fannie Draper and for the construction of the will. By the 5th paragraph of the will the testator gave his residuary estate to his executors in trust to divide the same into six equal shares, to invest and hold each share separately and to pay over the income of one share to each of his six nieces for fife. The further provisions of the will upon which the question presented by the appeal depend are as follows:
“ In the event that either of my said nieces shall not survive me, but shall leave issue surviving me, then the principal of the share designed for her use shall go to such issue absolutely, if she shall leave no issue surviving me then such share shall form a part of my said residuary estate and the *149said number of shares into which my said residuary estate shall be divided shall be reduced accordingly.
“And upon the Further Trust, upon the death of any one of my said nieces who shall survive me, leaving issue her surviving to pay and deliver the share which had been set apart for her use, and any addition thereto that may have been made as hereinafter provided, to such her issue, if more than one issue then share and share alike, if she shall leave no issue surviving her then the said share so set apart for her use shall he divided and added in equal parts to the remaining shares and such addition to each share shall at the death of the takers thereof respectively without issue surviving be divided equally among the then survivors of said nieces, the issues then living of any of said nieces then dead to take the share the parent would have taken if then living, and as to the share of the last survivor of said nieces, in case she shall die leaving no issue her surviving, but issue of any or either of the other deceased nieces shall survive her, then I give the last mentioned share, with any addition that may have been made thereto, to such surviving issue of such other nieces (the issue to represent the parent and to take the same share the parent would have taken if then living), if no issue of either of such other nieces shall so survive then I give said last mentioned share, with said additions to such person or persons as such last surviving nieces shall by her last will direct and appoint, and in default of such will I give the same to my next of kin under the laws of the State of New York as if I had died intestate.”
The six nieces survived the testator, but only two, Mrs. Jessie Draper Bowne and Mrs. Maria Haggerty Dehon Polk, are now living. Three of the nieces predeceased Fannie Draper, who died on the 10th day of January, 1914, without issue. One only of the three nieces who predeceased her left issue, and she was Clemence Haggerty, who by marriage became Mrs. Clemence H. Crafts, and who died on the 19th day of February, 1912, leaving four daughters, who are still living. Three of them are appellants, and the other appellants are the issue of two of the daughters of Mrs. Crafts. Mrs. Crafts was the third niece to die and upon the death of the two nieces who predeceased her without issue, there was *150added to the share held in trust for her the proportionate part of the shares held in trust for said two nieces as provided in the will, and upon her death her original share and those additions to the share held in trust for her, passed to her issue by virtue of said 5th clause of the will.
By the decision from which the appeal has been taken the additions to the share held in trust for Fannie Draper, the fourth niece to die, resulting from the death of the two other nieces who died without issue, have been distributed absolutely in accordance with said 5th clause, and the original share held in trust for Fannie Draper has been added to the shares held in trust for the two surviving nieces in equal parts to be so held in trust for them in accordance with the provisions of said 5th clause of the will. The appellants contend that upon the death of Fannie Draper the issue of Mrs. Crafts took a vested one-third interest in the remainder of the original share held in trust for her and are entitled to have the same distributed to them and that one-third only of said remainder should be added to the share held in trust for each of the two surviving nieces. Their argument is that while there is surviving issue of a deceased niece, the share for that niece is deemed still to exist, notwithstanding the fact that it was wholly distributed upon her .death. •
If the will is to be' construed literally it is quite clear, I think, that the decree is in accordance with the provisions thereof. It will be observed that the testator directed that upon the death of any one of the six nieces the original share set apart for her use and any additions resulting from the death of any other niece or nieces, should go to her issue absolutely if she died leaving issue, and that if she died without issue, then the share set apart for her use should be divided and added in equal parts to the remaining shares, and that the additions to the share resulting from the death of one or more nieces should be divided equally among the then survivors of the nieces and the issue then living of any deceased niece, such issue to take the share that their parent would have taken if then living. It will thus be seen that the will was carefully drawn to avoid offending against the statute which prohibits the suspension of the power of alienation and of the absolute ownership for more than two lives in being. *151(See 1 R. S. 773, § 1; revised by Pers. Prop. Law [Gen. Laws, chap. 47; Laws of 1897, chap. 417], § 2; now Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 11; 1 R. S. 723, §§ 14, 15; revised by Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], § 32; now Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], §42.) Each original share was to be held in trust for the life of one of the nieces and then to be divided and each part held in trust for the life of another niece, and then to become vested and distributed absolutely. It is perfectly clear, I think, therefore, that the primary purpose of the testator was to insure an income to his nieces during life so far as that could lawfully be done, and the provisions for the issue of nieces were subordinate to this primary purpose. This will does not show a testamentary scheme or intention to provide for an equal distribution of the residuary estate among the nieces and the issue of deceased nieces and it is not susceptible of that construction. It will be observed that each niece took only a life use in one-sixth of the residuary estate and they only took an interest in the corpus of the shares held for the use of the other nieces after such shares were held in trust for two lives in being, or as long as the statute permitted. This, to my mind, indicates that the testator intended to insure them against want by not leaving it within their power to dissipate the principal. On the other hand, with respect to the issue of deceased nieces, the will indicates no such concern on the part of the testator, for he provided that if any niece should predecease him leaving issue, her issue should upon his death take absolutely the share which was to be set apart for her use. When it came to the final distribution of any share or part of a share after the same had been so held in trust for two lives in being, he provided that the issue of deceased nieces should share with surviving nieces the same as if their parents were then living. But the appellants here seek to go further and demand that one-third of the original share set apart for Fannie Draper shall now be distributed to them absolutely, which would give them an advantage over the surviving nieces, who, concededly,. took only a life use in the part of Fannie Draper’s original share which is to be added to their original shares. Their contention is that they now take *152one-third of the original Fannie Draper share and that upon the death of the fifth niece to die they will share equally with the sole surviving niece in the distribution of the one-third of the Fannie Draper share now to be added, according to their contention, to the share of each of the two surviving nieces and held in trust for their respective lives. I fail to see how that would produce equality.
I am, therefore, of opinion that the will should be construed as it reads, and as it has been so construed, I think the decree should be affirmed.
Clarke, P. J., concurred.
Judgment modified as directed in opinion, with costs to all parties appearing and filing briefs herein payable out of the estate. Order to be settled on notice.