This action was instituted by plaintiffs, trustees under the will of Heber R. Bishop, deceased, for an accounting and to obtain directions from the court as to the applicability to income or principal of the respective trusts of certain stock dividends. The testator died December 1, 1902, leaving a long and elaborate will executed April 5, 1899, with several codicils executed in 1901 and 1902. The 8th paragraph of the will provides as follows:
“ All the rest, residue and remainder of my estate I give, devise and bequeath to Alexander J. Paterson and the Metropolitan Trust Company in trust, for the uses and purposes following, namely: To divide the same into eight shares, one share for the benefit of each of my children [naming them] * * * and to hold one such share for the benefit of each of my said children for and during the terms of their respective natural lives; the net income of each share to be paid to the child for whom it is set apart, quarterly. In case of the death of any one of my sons leaving him surviving a wife bom before my death, to pay one-third of the income of the said share to the said wife quarterly as long as she shall live, for her maintenance, and two-thirds of the income thereof to the guardian of my son’s children should he leave any for their maintenance until they shall arrive respectively at the age of twenty-one years, when the said income shall be divided among them respectively, and in case he should leave no children the whole income of said share shall be paid to the said wife for life; and after her death, or in case any one of my said sons should not leave a wife, him surviving, to divide the said share into as many equal parts as he shall leave children him or her surviving, and the children, per stirpes, of any child who may have died, and to pay over the same to such issue respectively.”
Abigail H. Bishop, the appellant, and James C. Bishop, one of the sons of the testator, intermarried on December 14, 1891; so that at the time of the making of the will April 5, 1899, she was the wife of James C. Bishop, and of course was the wife of a son of testator born before testator’s death, but, on the 6th of December, 1913, a final decree of divorce was granted to her dissolving her marriage with James C. Bishop.
She appeals from an order denying her application that she be brought in as a party defendant in this accounting. It seems to me that the order appealed from was fully justified. The provision of the will is positive in its terms. She is not the surviving wife of one of testator’s sons because the son to whom she was formerly married is still alive. If and when he shall die she will not be his surviving wife because the decree of divorce absolutely *167dissolved the marriage and, therefore, she is no longer his wife. It seems to me impossible to hold that after such decree she could be held to come within the terms of the will. She cannot at the same time be a wife and not a wife. I am, therefore, of the opinion that she has no possible interest in the subject-matter of this action and that the order below was right and should be affirmed.
Dowling, J., concurs.
Order reversed, with ten dollars costs and disbursements, and motion granted, upon condition that appellant makes a motion or serves an answer within ten days after service upon her of copy of order.