This litigation involves the construction of the 4th and 5th clauses of the will of Albina Chase, deceased. Mrs. Chase was a resident of Niagara county, and died May 7, 1909. She left a will and codicil which were admitted to probate in the Niagara County Surrogate’s Court May 17, 1909. The codicil is not in controversy. The 4th clause of the will directs the executors and trustees to convert all the property, both real and personal, left by testatrix into cash within three years after the death of her husband, and the proceeds were to be disposed of as follows:
One thousand dollars thereof was to be invested in good interest-bearing securities, and the income derived therefrom was to be paid to a daughter, Ella M. Chase, until she should marry or die. In the event of her marriage, the income was to forthwith cease, and she was to participate in the distribution of the entire estate, after the husband’s death, in the same manner as the other children of testatrix, but after a separate bequest of $300 to her son, Everett W. Chase, had been carved out of the estate.
Then followed the provision that $300 should be paid to her son, Everett, absolutely.
By the 5th clause it was provided as follows: “Fifth. After the death of my said daughter, Ella M. Chase, the said one thousand dollars left in trust to my trustees for her use and maintenance as hereinbefore provided, shall be divided equally, share and share alike, among my grandchildren, Burton M. Chase, Marie Chase, Anna Chase and Ruth Chase, to have and to hold unto themselves, absolutely and unconditionally forever, except as otherwise provided, herein. * * * ”
Ella M. Chase married March 8, 1910, before the death of her father, and before the setting apart and investment of the $1,000 referred to in the 4th clause of the will, and she, therefore, received no part of the income from that $1,000. This daughter, Ella, is still living. The question here is, “ What became of the $1,000 which was to have been set apart for the use of the daughter Ella, under the 4th clause of the will, when she married? ” The surrogate has held that the grandchildren would only take the principal of the $1,000 fund, on the death of the daughter, Ella M. Chase, *802unmarried, and that it was the intention of testatrix that if Ella married the $1,000 was to be a part of the residuary estate, to be distributed to testatrix’s children, share and share alike, and not to the grandchildren.
With respect to the disposition of the $1,000 fund in controversy, the provisions of the 4th and 5th clauses of the will are in apparent conflict, but reading the will as a whole, and not isolated portions of it, I am of the opinion that it was the intention of testatrix to have this $1,000 go to the grandchildren only on the death of her daughter Ella, if she did not marry, and that if she did marry, then the principal of this $1,000 was to form part of the corpus of her estate to be distributed to her children, share and share alike. It was the primary purpose of testatrix to look out for her maiden daughter, Ella, until her death or marriage. She was quite particular to state in the 4th paragraph of her will that, in the event of Ella’s marriage, the income which was to be paid to her was to cease and she was to participate in the distribution of the estate, after the death of testatrix’s husband, in the same manner as her other children, after the separate bequest to her son Everett had been carved out.
If it was testatrix’s intention that on the marriage of her daughter Ella the grandchildren were to have the principal of the $1,000 in question, she would have excepted that fund in language similar to that used when she excepted the three hundred dollar legacy to her son Everett. That language showed clearly that she intended to give him the $300 referred to, and it seems to me clear that if she had intended that the grandchildren should have the principal of the $1,000 in question if Ella married she would have used similar language with reference to that fund. This she did not do. This $1,000 was to be set apart, not as a gift to Ella, but as a fund, the income from which was to be paid to her until her death or marriage. If she died before her marriage, the grandchildren were to have the principal of this $1,000 as stated in the 5th clause of the will. If she married, the income on the $1,000 was to cease, and the principal, which by the 5th paragraph was not to go to the grandchildren until Ella’s death, remained a part of the estate to be distributed to all of testatrix’s children, share and share alike, after Everett’s legacy had been carved out.
Appellants claim that, under the 5th clause of the will, the grandchildren took the $1,000, but that clause says it should go to them, “ except as otherwise provided herein.” It was otherwise provided in the 4th clause of the will. This $1,000 remained part of the estate, but was to be set apart by the trustees to be invested for the benefit of the daughter Ella until her death or marriage. *803On Ella’s marriage, this $1,000 still remained part of the corpus of the estate, and Ella was to share in the entire estate (including this $1,000) with the other children, but after Everett’s absolute legacy of $300 had been carved out.
The words of the 4th clause of the will seem to me to be clear, and the intention of the testatrix there expressed was to leave the $1,000 in the estate to be distributed to all the children on Ella’s marriage and after the death of testatrix’s husband, and that cannot be cut down by the language used in the 5th clause, which, in so many words, says that the grandchildren would take the $1,000 on Ella’s death, “ except as otherwise provided herein.” It was otherwise provided in the 4th clause, and the grandchildren do not take. (40 Cyc. 1415; Thomson v. Hill, 87 Him, 111.)
Where a will is capable of two interpretations the one should be adopted which prefers those nearest the testatrix. (Matter of Edie, 117 App. Div. 310.)
It is my conclusion that it was the intention of the testatrix that the trust for Ella’s benefit should end with her marriage, and that the principal remained part of the corpus of testatrix’s estate to be distributed among the children of the testatrix, including Ella, share and share alike, and that the grandchildren would take the principal of this $1,000 fund only on the death of the daughter Ella, unmarried. That event never having occurred, but she having married, and being still living, the grandchildren take no part of this fund.
The decree of the Surrogate’s Court should be affirmed, but, under the circumstances, without costs against the appellants.
Sears, J., concurs.
Decree so far as appealed from reversed, with costs to appellants payable out of the estate, and decree modified in accordance with the opinion.