(dissenting). It is well established (Dreyer v. Reisman, 202 N. Y. 476, 480) that “ Courts have no power, however, to construct a will where none has in fact been made, nor to import into a will new provisions which are designed to create a testamentary disposition which is neither expressed nor necessarily to be implied. (Wager v. Wager, 96 N. Y. 164, 172);” that “ to uphold a legacy by implication, the inference from the will of the intention must be such as to leave no hesitation in the mind of the court and to permit of no other reasonable inference ” (Bradhurst v. Field, 135 N. Y. 564, 568); that “ To devise an estate by implication, there must be such a strong probability of an intention to give one, that the contrary cannot be supposed.” (Post v. Hover, 33 N. Y. 593, 599.) Implication cannot flow from conjecture, surmise or belief. It may not rise from an omission.
To support a gift by implication within the foregoing rules, it is inherently essential that there be the “ mention, description or identification of the subject of the intended gift or devise ” (Dreyer v. Reisman, supra), i. e., the “ mention, description or identification ” of the particular estate or interest in the property as differentiated from the property itself. The gift of this interest may be hidden behind vague, obscure and indefinite language referable to it, but it must be there in some form to warrant implication. The gift which it is sought to imply in this case is a vested remainder — a future estate to take effect in possession on the death of the fife beneficiary. In the will there is no “ mention, description or identification ” of any such interest in the property. The only gifts actually mentioned take effect in possession immediately on the death of the testator; (1) the trust fund consisting of the residuary estate for the benefit of the wife during her fife; (2) as an alternative, the residuary to the sons if the wife die before the testator.
*624That the testator did not intend the wife to have any part of his estate other than a beneficial interest for life; that at the time of his death the sons were his only heirs and, other than his wife, the only objects of his bounty; and that the law looks with disfavor on intestacy, are cogent factors in arousing a strong belief that the testator intended to give his sons all his property, subject to the life interest of the wife. But the testament will be searched in vain for the “ mention ” of any such gift; it is silent in that respect. What the testator has omitted, the court may not supply. There is no room for inference.
Two cases may be referred to as a basis for the foregoing — one where implication was favored, and the other where it was not.
In Masterson v. Townshend (123 N. Y. 458) the testator and his brother were tenants in common of certain real estate, his interest in which was devised to the executor in trust to pay over $600 of the income to his wife as long as she remained unmarried, the balance of the income to be paid to his brother. There was no actual devise of the remainder in the real estate. The will further provided that, if in the discretion of his brother and the executor it should be deemed advisable to sell the real estate, then the executor was authorized to unite with the brother in a sale of the premises, and from the proceeds to pay to the wife the sum of $600 annually as long as she remained unmarried and, upon her marriage or death before marriage all of the proceeds were to be paid to the brother. The real estate had not been sold at the time of the wife’s remarriage. It will be noticed that there was no disposition of the remainder in the real estate, but there was of the proceeds of its sale. It thus clearly appears that the remainder was mentioned in one form of the property, but not in the other. Having given the proceeds to the brother upon the remarriage of the wife, testator must have intended to give to him the remainder of the real estate in place of which the proceeds stood. In effect, one is the other. The vested remainder in the realty is identified with, and implied through, the vested remainder in the personalty. The court held that the brother was entitled to the real estate.
In Brown v. Quintard (177 N. Y. 75) the testator was survived by four children and a son of a deceased child. He gave his residuary estate to executors in trust for certain purposes and directed that, at the expiration of a designated trust term, it be divided into four parts; that from one of the four parts his executors deduct the sum of $3,000' (afterwards by codicil reduced to $1,000) and that the part so reduced should be the part of his son Edward, “ being so reduced in justice to my other children because of the money I have advanced to him.” There was no disposition of the *625other three parts. It was claimed that there was a devise by implication to the remaining children of those parts. The court decided that there was no gift by implication, stating: “ The only division directed to be made is that there shall be four parts, of which the son Edward shall receive one, less the deduction specified in the codicil. The other three parts are not disposed of. It is true that the testator had four sons, and that the direction to divide the residue into four parts is coupled with the statement that the deduction from Edward’s share is made ‘ in justice to my other children.’ These circumstances give rise to surmise, conjecture and argument, but they prove nothing except the fact that if the testator intended to give three-fourths of the residue to his sons * * *, he utterly failed to do so.”
There was a further reason given by the court for reaching the conclusion that it did, viz., to hold that the testator did not die intestate as to the residuum would be disinheriting a child of a deceased child. This was merely an extra, but not an essential, reason. (See, also, Vernon v. Vernon, 53 N. Y. 351, 361; Leggett v. Stevens, 185 id. 70; Central Union Trust Co. v. Trimble, 255 id. 88; Minkler v. Simons, 172 Ill. 323; 50 N. E. 176; Pontius v. Conrad, 317 Ill. 241; 148 N. E. 17.)
First Nat. Bank & Trust Co. v. Palmer (261 N. Y. 13) is not to the contrary. In that case there was no express provision for the disposition of the income of a trust fund under a certain contingency which actually happened. But in the trust document there were words which, the court found, clearly demonstrated that the trust fund was created for persons and purposes and for a term which necessarily included a gift to a certain one of those persons under that contingency. In effect, there was a “ mention ” of a gift. The dissenting opinion of Kellogg, J., is a striking authority for holding that a gift of the remainder in the case at bar may not be implied.
There is another difficulty which may stand in the way of an implied gift of this remainder. If it were implied, what kind of a remainder to each of the sons would it be — a vested remainder to take effect in possession after the death of the wife, or a vested remainder subject to be divested in case a son died before the widow? The power of choice tends to block implication. This suggests itself because one of the sons died before the wife, leaving a child.
The testator made no disposition, express or implied, of that interest in his estate which remained after the death of his wife, and the court may not do for him what he failed to do. In my opinion, the testator died intestate as to that interest, and the decree, therefore, in so far as appealed from, should be affirmed.
*626Decree of the Surrogate’s Court, Kings County, in so far as it held that testator died intestate as to the corpus of the residue of the estate, reversed on the law and the facts, with costs to appellant, payable out of the estate, and the matter remitted to the Surrogate’s Court to enter a decree that the testator, by implication, bequeathed to his three sons the corpus of the remainder of the estate.