A reading of the entire will discloses that it was the intent of the testator that there should be but one trust for the benefit of Ida E. Hume, and that in the event Elizabeth Lyon, Sarah J. Cogswell and Esther A. Lyon predeceased Ida E. Hume, the property in those trusts should become part of the single trust set up for Ida E. Hume. The three individuals named predeceased Ida E. Hume and the principal of their respective trusts became part of the trust for Ida E. Hume. The corpus of this enlarged , trust passes to Ida E. Hume’s descendants by reading the word “ the ” into the language which disposes of the principal of the other three trusts in the event that the individuals concerned predeceased Ida E. Hume. This would result in the next to the last paragraph in paragraph “ Seventh ” of the will reading “ Upon the death of [three named persons] or any of them, the principal of the trust so set apart for each or any of them shall be held by my said Executor in [the] trust for Mrs. Ida E. Hume, * * This may be done under settled authority to effectuate the testator’s intention, evidenced in express language in the will, and to avoid disinherison. (Matter of Miner, 146 N. Y. 121; Matter of Barr, 233 App. Div. 290; affd., 258 N. Y. 592.)
Moreover, and apart from the principle thus invoked, it appears that the testator’s primary purpose was to give the property involved to the descendants of Ida E. Hume after she had the use or income thereof during her life. By express language the testator gave to Ida E. Hume’s descendants the principal of so much of the property involved as concerned the group of three to whom the income was given during their lives and before Ida E. Hume was to enjoy such income. This involved about three-fourths of the entire corpus of the eventual fund which later was to become available to Ida E. Hume. The entire will discloses an intent that the principal of the fourth part originally segregated for Ida E. Hume should likewise go to Ida E. Hume’s children as a matter of necessary implication. This view is in accord with the rulé “ 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; Matter of Selner, 261 App. Div. 618, 622; affd., 287 N. Y. 664.) There is here more *590than a “ strong probability ” since there is disclosed an intention not to die intestate as to any property. Those who would otherwise take in the event of intestacy were nominal legatees, the whereabouts of one of whom is unknown and the other is dead. This manner of express mention of them excludes the idea that they were to take by intestacy. The express provision gives three-fourths of the corpus (reading the quoted language without the word “ the ”) to Ida E. Hume’s children, which part of the corpus was less likely to be so given than the corpus of their mother’s original one-fourth fragment (Matter of Miner, supra), and strongly reveals that reading in the word “ the ” effects the testator’s purpose, readily implied from the entire testament (Matter of Barr, supra), and avoids property going to two individuals or their descendants, if ascertainable, whom the testator, in effect, pointedly excluded. As was said by Cardozo, Ch. J., in Matter of Gallien (247 N. Y. 195, 200), “ We cut an avenue of escape from consequences so unreasonable, we might even say so ludicrous, that a sensible testator cannot be supposed to have intended or approved them.” And what he further said (p. 202) is equally applicable: “ Nothing is done here save what we may safely presume that the testator would have wished the court to dó * * *.”
The decree, in so far as appealed from, should be reversed on the law and the facts, with costs to each party filing a brief, payable out of the estate, and the matter remitted to the Surrogate’s Court for the entry of a new decree containing, among others, a provision that the entire residuary estate was validly disposed of by the will and passed to the appellants upon the death of Ida E. Hume.
The appeal from the order denying reargument should be dismissed, without costs.
Carswell, Johnston and Close, JJ., concur; Taylor, J., with whom Hagarty, J., concurs, dissents in part, with opinion.