This case comes here under a submission properly made in accordance with section 546 of the Civil Practice Act.
It shows among others the following facts, a knowledge of which is regarded as essential to any determination of the controversy.
Jonathan G. Witherbee was possessed in his day and generation of a very considerable estáte. He was twice married. First to *334Charlotte Spencer who separated from him on or before the 23d day of July, 1867, and for whose support and maintenance he made provision during such separation. Later and on the 9th day of January, 1869, Charlotte procured an absolute divorce from her husband in the State of Vermont. Subsequently another arrangement was made, that the said Charlotte should have an income of $8,000 a year to be provided by her said husband. He died on the 25th day of August, 1875.
Prior to the making of his will he had contracted to marry one Sophie G. Roe, which after the making of his said will he did.
At the time of his death the family of the testator was composed of the following individuals: Sophie, his second wife; Mary, his daughter by Sophie; Frank S. Witherbee and Florence Peaslee, son and daughter by his first wife, Charlotte Spencer.
To these persons after having made several devises or bequests to others, he devised and bequeathed all the rest, residue and remainder of his estate “to be divided equally between the said Sophie, Frank & Florence or the survivors, in case of the decease of one or more of them before my decease; but in case any of my children shall die, leaving a child or children, the share of said child shall descend to the child or children of such deceased.” He provided further with regard to the $200,000 set aside to produce the income of $8,000 per year, that said $200,000 should not be divided or distributed until the payment of the annuity to Charlotte should cease but it should be kept by his said executors undivided until that time and then be divided and distributed by said executors to the legatees and devisees entitled under the will to the residue and remainder of his estate as thereinbefore provided. And he further provided that the provision just stated was not intended to change the distribution of his securities or to make any difference between that property and the other portion of his estate disposed of under the general provisions as to the residue and remainder, “ except that no division is to take place until the said annuity shall cease and then they are to be divided among those then living entitled thereto, under the provisions of this Will.”
Charlotte Spencer died on the 8th day of August, 1921. Only one of the residuary legatees survived until the payment of the annuity ceased, Florence Peaslee. Frank S. Witherbee predeceased Charlotte too, leaving a child, Evelyn W. Miller. Sophie G. Witherbee died leaving her property by will to her daughter Mary, who married Wallace T. Foote, Jr., and died childless leaving her property by will to him. He also died before Charlotte and by his will he made the plaintiffs his heirs. It is their contention on *335the facts submitted that they are entitled to the shares of Sophie G. Witherbee and her daughter, Mary Foote.
There are a few general principles that relate to wills, a reference to which may not be out of place. The court has no power to make a will for a person. Its function is threefold: To declare that a will be established as valid; that it be overthrown for undue influence, fraud, imposition or illegality in its making; or its interpretation if its meaning should be obscure.
There is no question here of illegality in execution, or of duress or fraud. The plaintiffs assert a half ownership in the property in question and base their claim upon a gift of the residuary estate. The wiE describes the fund set aside to produce the annuity for Charlotte as part of the residuary estate. The other part was divided in 1892 among the four objects of the testator's bounty. The plaintiffs undertake to support their claim by a resort to rules or canons of construction or interpretation. The particular construction sought is that the gift of the residuary estate as originally made was not cut down by any subsequent language used in the will with regard thereto. It is trite in the law that constructions and interpretations have no office where it is possible to discern the purpose of the testator. He set aside the §200,000 in securities to provide an §8,000 income for Charlotte, his first wife. He did not know how long she would live and probably never dreamed she would attain the great age of ninety-two years. He wanted to divide that fund among his four residuary legatees. But he could not divine whether they would all live to the termination of Charlotte's life. If any of them should die during that time it might happen that others than the children of the testator or their children might receive the fund or part thereof. He may not have been willing that some stranger to Ms preference should participate in the fund and for such reason did he not provide that the fund should be divided among his legatees and devisees living when the annuity should cease?
The character of the estate conferred upon the four residuary legatees in the fund in dispute, was that of a vested remainder defeasible by the condition subsequent of dying during the life of Charlotte. (2 Washb. Real Prop. [6th ed.] § 158 ; Manice v. Manice, 43 N. Y. 370; Matter of Vanderbilt, 172 id. 69.)
In the quest for the intention of the testator resort may not be had to excision but as a “ desperate remedy.” On the contrary, heed should be given to all the language used.
The case at bar contains no facts warranting resort to an interpretation based upon the claim of any repugnancy existing in the clause of the will commencing with the word “ except.” As *336said in Norris v. Beyea (13 N. Y. 284, Denio, J.): “ But there is, in truth, no repugnancy in a general bequest or devise to one person, in language which would ordinarily convey the whole estate, and a subsequent provision that upon a contingent event, the estate thus given should be diverted and go over to another person. The latter clause, in such cases, limits and controls the former, and when they are read together it is apparent that the general terms which ordinarily convey the whole property, are to be understood in a qualified and not an absolute sense.”
If there were repugnancy among the provisions of the will it is the latest expression of the testator which should govern. Nor do I think the argument sound that the words “ those then living ” used in the paragraph reading “ except that no division is to take place until the said annuity shall cease and then they are to be divided among those then living entitled thereto ” refer to those legatees and devisees living at the time of the decease of the testator. (Stewart v. Stewart, 205 App. Div. 587; Fowler v. Ingersoll, 127 N. Y. 472.) Did the testator intend that the $200,000 security fund should be divided among those living at his death or living at the death of his first wife Charlotte, the time of the cessation of the annuity? If he intended the time to be as of his own death why did he not use the phraseology used in reference to the distribution of the part of his residuary estate divided in 1892? The words “ then living ” cannot without literary torture be held to refer to the testator’s death. (Matter of Buechner, 226 N. Y. 440; Sears v. Russell, 8 Gray [74 Mass.], 94; Thomson v. Ludington, 104 id. 194; Patchen v. Patchen, 121 N. Y. 432; Schwencke v. Haffner, 18 App. Div. 182; Connelly v. O’Brien, 40 id. 576, and cases cited.) Such words constitute rather a description of the persons who are to take at the death of Charlotte. (Sears v. Russell, supra.)
The objection that there are no words of gift used in the final clause of the will relating to the residuary fund is not well made. The word “ divide ” or “ distribute ” is sufficient, assuming a postponement of the vesting of the estate until the death of Charlotte, to constitute a gift. (Manice v. Manice, supra; Gilman v. Reddington, 24 N. Y. 9.)
It was the testator’s purpose to divide the security fund into as many parts as there were “ those then living ” at Charlotte’s death. We cannot say the fund should be divided in four parts. The testator said something else. The division should be into as many parts as there were those living at the cessation of the payment of the annuity to Charlotte. Where the testator in his will states the number of parts into which the division shall be *337made the court cannot change the number. (.Matter of Beuchner, supra.)
I have been able to understand why the testator in scanning the future should take away the possibility that the annuitant’s fund should fall into the hands of strangers at Charlotte’s death, but that reason no longer obtains when the claim of the daughter of Frank S. Witherbee is presented for participation in it. She claims to be one of “ those then living entitled thereto, under the * * ® Will.”
The general scheme of the testator’s will aside from particular items was first to provide for the conduct of the business of the partnerships in which he was engaged prior to his death; to divide his residuary estate divisible at his death among the four objects of Ms bounty or if any child should not be living at Ms death to any child or children of Ms deceased child, and to divide the remaining part of Ms residuary estate at the death of Charlotte among such residuary legatees as survived her.
But the language used with reference to such of his cMldren as dying leaving a child or children, was that it or they should share in the residuary estate as the parent if living would have shared. The testator in using such language was using it with regard to the whole of Ms residuary estate. Not alone that divisible at Ms death but that also divisible at Charlotte’s death. Viewed in such light it is apparent that Evelyn W. Miller comes within the description “ those then living entitled thereto, under the * * * Will.”
There should be judgment for Florence Peaslee and Evelyn W. Miller.
Judgment directed as per opinion of Van Kirk, J. Findings to be prepared in accordance with the opinion of Van Kirk, J. Findings to be submitted Wednesday, September twenty-sixth, at two p. m.
On the 28th day of September, 1923, the decision herein was amended to read as follows:
Adjudged that under the will of Jonathan G. Witherbee the rest, residue and remainder of Ms estate, including the $200,000 for the annuity, vested at the time of Ms death in the parties named as residuary legatees surviving Mm and should be distributed to them or to those to whom it has passed from them.
There should be paid to Edward H. Peaslee and Florence W. Peaslee, as executors of the will of Charlotte S. Witherbee, the sum of $822.22; there should be paid to Florence W. Peaslee, as administratrix with the will annexed of Jonathan G. Witherbee, to *338distribute, the bonds and the moneys in her hands constituting the fund which is the subject of controversy here, to and for the parties hereto as follows: One-fourth to Florence W. Peaslee, a residuary legatee; one-fourth to the executors of the last will and testament of Frank S. Witherbee; one-half to the executors of the last will and testament of Wallace T. Foote, Jr.; with disbursements as stipulated.
Opinion by Van Kirk, J. [ante, p. 330]; H. T. Kellogg, Acting P. J., and Hinman, J., concur; Hasbrouck, J., dissents, with an opinion [ante, p. 333].