(dissenting). In the construction of wills, presumptions are not indulged if the effect is to violate the intention of the testator as expressed in the instrument (Matter of Tamargo, 220 N. Y. 225). That, it seems to me, is the consequence of applying to this will the presumption in favor of vesting applied in such cases as Matter of Krooss (302 N. Y. 424, 428) and Matter of Watson (262 N. Y. 284, 299).
The question is whether Carl F. Hofferberth’s remainder was divested by his death before the termination of the trust. Such was clearly the intention of the testatrix, who made a substitutional gift of the remainder to charitable institutions in that event. The measuring lives were those of testatrix’ cousin and sister. Her will states that “ Upon the death of my cousin, Emily Seville Yah Hovehberg, and of my sister, Bertha Hofferberth, the said trust shall come to an end,” in which event the remainder is given to the nephew Carl. If that was all there were to it, Carl would have taken a vested remainder that would not have been subject to divestment in event of his death before the termination of the trust. The next paragraph, however, expressly states that in the event of Carl’s death “ before the death of my sister, Bertha Hofferberth* and my cousin, Emily Seville Yah Hovehberg, then upon the death of my said sister, Bertha Hofferberth, and my cousin, Emily Seville Yah Hovehberg, I do hereby give, devise and bequeath the principal or corpus of the trust hereinabove created * * * unto * * * Mahhattah Eye, Ear & Throat Hospital, of New York City, New Rochelle Hospital, of Guión Place, New Rochelle, New York, and Colburh Memorial Home, of New Rochelle, New York ”.
*37Having measured the trust in accordance with the rule against perpetuities by the lives of Emily and Bertha, the manifest intention'was to give the remainder to these charities instead of to Carl if Carl died before the trust ended when, if he were then living, it would have vested in interest in him. The meaning is that if Carl should die before Bertha and Emily were both dead, then Carl’s remainder would be divested and would pass to the charitable institutions which are substituted in his place. It is a familiar canon of interpretation that the singular is to be read as the plural, and vice versa, where the wording and structure of the instrument or statute indicate that such was the intent (General Construction Law, § 35; Culver v. Title Guar. & Trust Co., 296 N. Y. 74; People v. Gates, 56 N. Y. 387, 392).
In this instance testatrix demonstrated in this very clause that when she said “ death ” she meant “ deaths ”, inasmuch as the will speaks of the “ death of my sister, Bertha Hopper-berth, and my cousin, Emily Seville Van Hovenberg,” (italics supplied). In the previous paragraph she had also mentioned 61 the death of my cousin, Emily * * * and of my sister, Bertha Hopperberth ’ ’. By referring to the death of two persons, testatrix obviously meant their deaths. It is equally plain that she intended the plural in using the singular where she divests Carl’s remainder if he “ should die before the death of my sister, Bertha Hopperberth, and my cousin, Emily Seville Van Hovenberg ”. That signifies the deaths of both Bertha and Emily, and means that Carl’s remainder is divested unless he survives them both. She plainly intended to give the remainder to the charities instead of to Carl unless he survived Bertha and Emily, whose joint lives measured the duration of the trust. He survived one but not the other, in which event the will, without ambiguity, gives the remainder to the three appellant charitable institutions.
The order appealed from should be reversed and the remainder held to belong to appellants, with costs to parties appearing payable out of the estate.
Lewis, Ch. J., Conway, Desmond, Dye and Froessel, JJ., concur with Fuld, J.; Van Voorhis, J., dissents in opinion.
Order affirmed.