It is manifest, upon the face of the will of David Hyde, that he intended the legacy in. question should vest in the plaintiffs, upon the death of his daughter without issue living at the time of her death. - The legacy is made payable in four equal annual payments after her death, which is consistent with that intention, and inconsistent with any other which, .from the language employed, he can be supposed to have entertained. It is wholly inconsistent with the idea that he intended it should take effect only upon an indefinite failure of her issue. That event might not occur until long after the periods provided for its payment. The fair and only reasonable construction of the language is, that the gift was to be perfect at her death, provided no issue of hers should then be living; that it was to be absolute before the times of payment should begin to run.
The position cannot be sustained that this legacy is invalid, because it is a limitation over of part only of the estate devised and bequeathed to the daughter, leaving the former estate, as to the residue, to continue. There is nothing inconsistent in a limitation over of part, and the continuance of the former estate as to the residue; and the only ground upon which a prior estate must be terminated upon a limitation over taking effect, in order that the latter may be valid, is, that the two estates are not consistent ; that they cannot exist together. Where no such inconsistency exists, there is no rule of law which will prevent the operation of the limitation over, if otherwise valid. If a limitation over relates to part only of a former estate, it is sufficient, so far as this point is concerned, that the estate, as to that part, is terminated by it.
The will does not admit of the construction that the testator intended to vest in his daughter the whole estate given to her, absolutely. As to the amount of the legacy to the plaintiffs, it is evident he intended that she should have only the use, unless *385she should have issue living at her death, and that if she should npt have such issue, the same should go to the plaintiffs. The clause directing that all or such part of the testator’s estate as the guardian of the daughter appointed by the will should deem necessary, should be applied for her maintenance, education and support, does not disprove that intention; nor is it incompatible with the gift to the plaintiffs that the latter cannot be supported. It will be observed that the guardian is not clothed, in terms, with an absolute power of disposition over the whole estate given to the daughter; that the power is limited to what he shall judge necessary in respect to her support and education; and it is apparent that the testator contemplated that the estate would be ample for all the purposes of the will, including the legacy to the plaintiffs. It was with such an understanding that the will was made. This is not a case of conflicting intentions or dispositions, one of which must fail for that reason. It is true there was a possibility the estate might at the testator’s death be so small, or subsequently become so much reduced, that under the power to the guardian thq whole of it might be exhausted, leaving nothing to satisfy the legacy; but in the contemplation of the testator it would, as it has proved, be far otherwise. It was not supposed by him that the power would interfere with the leg•acy to the plaintiffs. His intentions in regard to his daughter and the plaintiffs, in the views which he had of his property, and which appear to have been correct, were consistent, and might be fully carried out. That relating to the daughter has been fulfilled; that in respect to the plaintiffs may be; and such being the case, the law requires it should be. The intention of a testator is to be sought after, in the construction of wills, and effect is to be given to it if it can be done according to the rules of law.
I am satisfied that the plaintiffs have ample legal capacity to take a bequest for the purpose for which this is given. Without entering upon a discussion of this point, I will state that the purpose designated by the testator is, in my opinion, within the general objects of the incorporation, and that the general powers of the corporation are sufficient for its proper execution.
*386[Monroe General Term, September 4, 1854.Upon the allegations in the complaint it must be understood, I think, that Daniel Kellogg, at the time of his death, held the fund out of which the legacy is payable, as guardian of Chloe Hyde, the daughter of the testator; and it is expressly alleged, that at his death the fund came into the possession of the defendants, who are sued as his executors; and continued in their possession, management and control, until Chloe’s death. As nothing to the contrary appears, it is to be inferred that the fund is still in their possession; and if so, I do not perceive any good reason why they may not be required to account and pay over to the plaintiffs, to the extent of their claim. A sufficient cause of action is disclosed, as against the administrator of Chloe, by showing the relation of the estate he represents to the fund, and that he has a right to contest the plaintiffs’ demand. It was important to the plaintiffs to conclude his rights, and they might do so in this action. The action would have been‘defective if he had not been made a party defendant. Some uncertainty and confusion have been introduced, by the statement near the close of the complaint, of what the plaintiffs claim from the premises given, and some words in the demand of judgment, but the substantial cause of action is not thereby affected.
The judgment at special term must be affirmed, with costs.
Johnson, Welles and T. R. Strong, Justices.]