(dissenting). The issue presented is the ownership of the remainder after the death of the life beneficiary under the following trust clause contained in the will of Crumby Bolton, deceased:
“ Fourth, I hereby give and bequeath unto my executors hereinafter named, the sum of Twenty Thousand Dollars ($20,000.00) in trust, however, to * * * invest * * * and to collect * * * the * * * income * * *; and pay the same over, semi-annually, from the date of my decease, to my said wife Katherine E. Bolton, for- and during the period of her natural life, or as long as she shall remain my widow; and at her death, or re-marriage, I give and bequeath the same to, and direct that the same be divided between my children, Edwin A. Bolton, Milton E. Bolton and Richard D. Bolton, or the survivors of them, equally share and share alike.
*763“ If, however, any of my said children shall die prior to the time of my decease, leaving issue him surviving, I direct that the legacy, or share in my estate which the one so dying Would have taken under the provisions of this, my last Will and Testament, if living, phat1] go to, and be equally divided among such issue, share and share alike.”
All three of the children survived the testator; only one, Milton F, Bolton, survived the life beneficiary, The son of testator, Edwin A., left surviving a granddaughter and two grandsons. Richard D. was survived only by his widow. The surrogate has determined that the remainder became the property of the three sons as of the date of the death of testator, to be paid one-third to the grandchildren of Edwin A., and a third each to the appellant, Milton F., and Mabel E. Bolton, the widow of Richard D.
By this construction, in effect, the words “ or the survivors of them ” following the names of the three sons, are deleted from the will. Under quite similar language it has been determined that the survivor, here Milton F., takes the entire remainder. (Matter of Parsons, 242 N. Y. 246; Matter of Buechner, 226 id. 440; Matter of Downing, 235 App. Div. 185.)
The intention of the testator that the remainder should be divided among the three sons if they were all living at the time the widow died and if some were dead then among the survivor or survivors is further disclosed by the use of the word “ however ” in the second paragraph. It is there stated that if any of his children shall “ die prior to the time of my decease,” their issue would take the share of the parent and as an introduction to that direction he used the Word “ however,” indicating that the provision which followed was at variance with that which preceded.
Webster says that “ however ” is “ used adversatively, * * * often indicating a reservation after something conceded.” When used in a will, the word implies an “ alternative intention, a contrast with the previous clause, and a modification of it under other circumstances.” (Matter of Lewis, 18 Penn. St. 318, 325; 30 C. J. 475; Century Diet.) Applying that rule to the clause here under consideration, testator desired the issue of his children dying before he died to take the share of the parent in contradistinction with his directions concerning those of his children who died after he died but before the death of the life beneficiary. In that event he used the words “ or the survivors of them,” which the surrogate has deleted.
The language used in the Buechner opinion (supra) has direct application (p. 443): " This is no case again for subtle distinctions between directions to pay or distribute, and words of present *764gift [citations]. Such tests may help to ascertain the membership of a class not otherwise defined. There is no need to resort to them when the testator has defined the membership himself. We t.hinTr he has done so here, and limited his gift to the children living at the division. A single sentence includes the direction to divide and the gift of the thing divided. * * * We need no canon of construction to justify that holding except, indeed, the primary one, to which all others are subordinate, that the intention of the testator is to be sought in all his words, and, when ascertained, is to prevail [citations].”
I favor a reversal.
Decree affirmed, with costs to respondents filing briefs, payable out of the estate.