(dissenting). We think that this court should accept the meaning ascribed to the will by both courts below.
So far as is material to the question before us, the will: (1) sets up a trust of $15,000, with income to the daughter until she shall reach the age of thirty-five, at which time the corpus is to be paid to her, and (2) divides the residue into three equal parts, one third to the son outright, one third in another trust with income to the daughter and the corpus to be paid to her at age thirty-five, and the other one third in a trust with income to the husband for life and provisions for the disposition thereof at the husband’s death. The will then goes on to say this: “ (o) The Trustees are authorized, in their sole and absolute discretion, in the event of any need on the part of any of my children, or of my husband, occasioned by misfortune, sickness or by any other reason whatsoever, to pay to or use, apply or expend for the use and benefit of any of my said children or of my husband, the corpus of any trust fund held for the benefit of said child or of my husband to such extent and as often as said Trustees, in their sole and absolute discretion, may determine to be adequate to provide for the reasonable needs and comforts of any of my said children or of my husband during such period or periods of need. ’ ’
The Surrogate and the Appellate Division interpreted the quoted language as saying that any invasion of the principal of the husband’s trust fund was to be for the benefit of the husband alone. By the decision about to be made, this court is taking a contrary view and holding that the invasion provisions above summarized mean that the husband’s trust may be invaded, in case of necessity, not only to take care of the husband’s needs, but also for the benefit of either of the two children of testatrix. We think that the will, read as a whole, is at least reasonably susceptible of the meaning put upon it by both courts below, and that, accordingly, this court, although it may have the power so to do, should not attach to the words a different meaning.
This is a problem of interpretation, not of construction. “ Interpretation ” and “ construction ” are frequently used interchangeably, but actually have different connotations. Interpretation is an investigation as to what a testator actually meant by the use of certain words, while construction is concerned with the legal effect of the language used (for illustration, see Matter *467of Union Trust Co. [Detmold], 89 Misc. 69, mod. 170 App. Div. 176, mod. 219 N. Y. 537, 220 N. Y. 657; also, People ex rel. Twenty-third St. R. R. Co. v. Commissioners of Taxes of City of N. Y., 95 N. Y. 554, 558, 559; Manion v. Peoples Bank of Johnstown, 292 N. Y. 317, 321; 1 Davids on New York Law of Wills, p. 733). If a will is written in ambiguous, obscure or contradictory words, the question is as to what the maker really meant, and that question is answered by a process of interpretation, which means discovering the testator’s actual intent, and is, thus, essentially, a question of fact. When, on the contrary, the terms, the meaning of which is in dispute, are words of art, that is, words having a fixed legal meaning, then the process is one of construction, that is, of applying to words of art the fixed meanings given them by our law.
Here is the case of a woman drawing an essentially simple will in which she gives an outright bequest to her son, and then erects two trusts for her daughter, and one trust for her husband. The clause above quoted, which provides for invasion of the trusts under certain circumstances, is ambiguous in the sense that it might mean that each trust could be invaded but for the benefit of the beneficiary thereof only, or it might mean that any one or all of the trusts could be invaded for the benefit of the husband, daughter or son, although the son had already been taken care of in the will by an outright bequest. The most that can be said for appellant’s position here is that the language could bear the latter meaning. However, the invasion provision, so read, is a most unusual if not unprecedented one, and one that goes far toward destroying the whole general scheme of the will. It is common for a testator, setting up a trust with income to a relative, to provide that the principal of the trust fund may be invaded to take care of unforeseen necessities of the beneficiary, but I doubt if anyone has heretofore heard of a will in which such a trust was opened wide to invasion not only for the beneficiary of that trust, but also for the beneficiary of other trusts in the same will, and for the benefit of a legatee also.
The words used here in the invasion clauses are not words of art, but simple English verbiage, and so they need no construction but only interpretation. Since both courts below have interpreted them as meaning that each trust could be invaded for the *468benefit of its income beneficiary only, and since that interpretation is not only not an unreasonable one but a more reasonable and consistent one, we should, even if we have power to do the contrary, exercise judicial self-restraint and let stand the reasonable interpretation arrived at by the two courts which have the primary responsibility of disposing of such factual questions of actual intent.
The order should be affirmed.
Loughran, Ch. J., Lewis and Conway, JJ., concur with Froessel, J.; Desmond, J., dissents in opinion in which Dye and Fuld, JJ., concur.
Ordered accordingly.