(dissenting.) Andrew G. Washhon died March 1, 1867, leaving a will dated January 31, 1865. In the first clause of this will he made provision for his wife, in lieu of dower. In the second clause he gave and bequeathed to his executors thereinafter named a certain farm, of about 250 acres, upon which his son John G. Washbon then resided, together with the farming utensils and live stock thereon belonging to him at the time of his decease, “and also the sum of four thousand (4,000) dollars, and also the equal one-fourth part of the residue of my estate, as hereinafter mentioned, and also any other’s share or interest which may be hereinafter devised or given to them as trustees, in trust, to receive the income, rents, interests, and profits thereof, and to apply the same to the use of my said son John G. Washbon during his life, and at his decease to grant, convey, transfer, and pay over the same to the descendants of my said son John G. Washbon who shall be living at his decease;” and he provided that, if any deceased child of John left descendants, they should take the . share their parent would have taken, if living. Then came the following clauses:
“Thirdly. I give and devise to my youngest son, Henry R. Washbon, the farm in the town of Morris aforesaid, on which I now live, containing one hundred and eighty eight (188) acres, more or less, with all the farming utensils and live stock thereon belonging to me at the time of my decease. Fourthly. I give and bequeath to my daughter, Nancy Cope, wife of John Cope, Jr., the sum of ten thousand (10,000) dollars. Fifthly. I give and bequeath to my son-in-law, John Cope, Jr., the sum of two thousand (3,000) dollars. Sixthly. I give and bequeath to my second son, Robert Washbon, the sum of twelve thousand (13,000) dollars. Seventhly. I give and bequeath and devise all rest, residue, and remainder of my property, real and personal, to my three children Robert Washbon; Nancy Cope, wife of John Cope, Jr.; and Henry R. Washbon,—to be divided equally between them. Eighthly. I furthermore desire and direct that in the event of my daughter, Nancy Cope, wife of John Cope, Jr., shall die without children, the portion herein given to her shall be given to my sons John G., Robert, and Henry R., or their heirs, share and share alike. ”
In the ninth clause, he made provision for a home and residence for his sister on the farm he had devised for the benefit of his son John. In the tenth clause he authorized and directed his executors to sell, at such times as they deemed best, all his real estate, except such as he had otherwise devised; and, lastly, he appointed as his executors his sons Robert and Henry, and his son-in-law, John Cope, Jr.
His four children named in the will were his sole heirs and next of kin. The testator, at the date of the will, was in his seventy-seventh year, and his daughter, Nancy, was then about 41 years old, and had been married about 8 years. She has never had any children. The will was proved, and letters issued to the executors, on 12th March, 1867. During the years 1867 and 1868, the executors paid to Nancy *245Cope, in full, the amount of the legacies bequeathed to her by the terms of the will, which amounted to the sum of about $13,500; and she had ever since that time had the absolute possession and control of the same, and has always claimed full title under the will. The legacies to Robert Washbon and to Henry R. Washbon were also paid, wholly, or to a large extent, about the same time. Henry R. died about 1st April, 1884, leaving children, who are parties defendant. On 9th March, 1890, John G. Washbon died,.leaving, as his only heirs at law and next of kin, the plaintiffs herein.
On the 23d November, 1887, the plaintiffs filed in the surrogate’s court a petition asking that the executors be required to file an inventory of the estate, and an intermediate account of their proceedings as executors and trustees. Thereupon a citation was issued to the executors, returnable on 16th December, 1887. Thereafter the executors filed an inventory, and an account of their proceedings. Objections thereto were filed by the petitioners, and evidence was taken before the surrogate and a referee, and the matter was adjourned from time to time to the 20th September, 1888, when the executors applied for a judicial settlement of their accounts. A citation was issued in the usual form, returnable on 30th October, 1888. In this citation Nancy Cope was named as one of the parties in interest. A hearing was had on December 4, 1888, and, by consent of parties who appeared, the accounts, objections, and evidence taken and filed in the prior proceeding were admitted in the latter as if originally taken and had therein. On the 26th July, 1889, a decree was made by the surrogate which, among other things, adjudged that the bequests to Nancy Cope by the fourth and seventh clauses of the will are not absolute, but her interest is reduced to a life estate, by the eighth clause, in the event of her dyingi without children, and that this contingency relates to her death without1 children after, as well as before, the death of the testator. The decree; recited that the citation was returned with proof of service on the parties; therein named, which would include Nancy Cope. The proof of serv-j ice, as filed, does not show service on her. Upon the hearing on' December 4th, the attorney for the executors in the proceedings caused to be entered upon the record that Nancy Cope appeared in such proceedings by him, as her attorney, and he thereafter acted therein as her attorney. It is, however, found by the special term, upon sufficient evidence, that the citation was not in fact served upon her, and that the appearance by the attorney was without any authority from her, and without her knowledge, and that she never employed him to appear or act for her, and did not know that he assumed to do so.
The present action was commenced in May, 1890, and the question is whether Nancy Cope had an absolute title to the legacies which she has received. This depends upon whether the death without children, referred to in the eighth clause of the will, means only a death before the testator.' If it does, then the title of Mrs. Cope is absolute. If it does not, then her title is defeasible, and the plaintiffs, it may be assumed, would be entitled to some relief. The plaintiffs, in support of their position, claim (1) that the decree of the surrogate’s court is a *246binding adjudication upon the subject; and, if not, (2) then that the will should, in fact, be so construed. It was held at the special term that the decree of the surrogate’s court did not bind Mrs. Cope, mainly on the ground that she was not bound by the appearance of the attorney, and that, therefore, the surrogate had no jurisdiction of her person, and that the will should be construed to refer only to a death before the testator.
The fund in controversy here was received by Mrs. Cope in 1867 and 1868. The undisputed finding of the court is that the amount she then received was in full of the legacies bequeathed to her by the terms of the will. That being so, she had no interest, in fact, in the accounting in 1888, as the surrogate had no power to compel her to pay back in case she had received more than she was entitled to. In re Underhill, 117 N. Y. 471, 22 N. E. Rep. 1120. She was entitled to nothing further under the decree, and claimed nothing. There was, therefore, no fund then in the hands of the executors, so far as Mrs. Cope or her legacies were concerned, upon the status of which the surrogate’s court was called upon to pass, or in regard to which there was any occasion! to construe the clause in question. The only parties who made objections to the executor’s accounts were the plaintiffs, and in these objections no reference wras made to the legacies in question, although, presumptively, the payments thereon entered into the accounts as filed. Indeed, upon the trial before the surrogate, no question seems to have been raised on the subject until the submission of the briefs of counsel upon the final argument. No brief was then submitted on the part of Mrs. Cope, but on behalf of the executors upon one side, and the plaintiffs upon the other. They were in fact the litigants. There was no issue betw'een the plaintiffs and Mrs. Cope. The latter had held the legacies for 20 years and upwards, and claimed absolute ownership. As the surrogate’s court, under the rule of the Underhill Case, had no jurisdiction to compel her to refund, it had none to qualify or limit her ownership. That was not a matter within the scope of the accounting, and any opinion or decision on the subject did not conclude Mrs. Cope. Hymes v. Estey, 116 N. Y. 509, 22 N. E. Rep. 1087. It is, therefore, not important to consider whether Mrs. Cope was bound by the appearance for her by the attorney.
We then come to the question of how the will should be construed. In this state it is, I think, well settled that where there is a testamentary gift to one person absolutely, and then a subsequent provision that, in case of his death without children, it shall go to other parties, the words of contingency refer only to a death in the lifetime of the testator, unless there is something in the context indicating a contrary intent. Quackenbos v. Kingsland, 102 N. Y. 128, 6 N. E. Rep. 121; Vanderzee v. Slingerland, 103 N. Y. 47, 8 N. E. Rep. 247; Mead v. Maben, 131 N. Y. 255, 30 N. E. Rep. 98; Black v. Williams, 51 Hun, 280, 4 N. Y. Supp. 243. The reason given in some cases is that the absolute gift, w'hich is in the first instance made, should not be cut down or limited by any subsequent doubtful expression, and that, as the limit of death without children may refer to a death in the lifetime of the testator, *247that should be the construction adopted, in order to give full force to both provisions, unless a different intent appears elsewhere. Does such an intent appear in this case? The construction claimed by the plaintiffs would, in effect, give to Mrs. Cope only a life estate. The testator provides, in terms, a life estate for one of his children, with remainder over. His failure to so provide for Mrs. Cope does not, at least, aid the plaintiffs’ view. Nor does the use in the second clause of the expression, “also any other’s share or interest which may be hereafter devised or given to them as trustees.” No such interest was in fact given to the trustees; and, if the testator had then in mind the share of Mrs. Cope, his failure to follow up any idea he may then have had does not take away or affect the meaning which, presumptively, is to be given to his subsequent language. It is urged that, on the theory of the defense, the eighth clause was unnecessary, as the legacies to Mrs. Cope, in case of her death before the testator, would, by law, have passed to her brothers, as intestate property. Assume this might be so. Still, the provision would prevent partial intestacy, and the law prefers a construction which will prevent partial intestacy to one which will permit it. Thomas v. Snyder, 43 Hun, 15. The same feature existed in the Quackenbos Case, and does not seem to have been considered of any special importance. In that case, too, as here, there were one or more life estates provided for; and the failure to provide such for the share in controversy was held to support the interpretation that the first taker, having survived the testator, took the absolute title. I fail to find anything in the present case to overcome the presumed intent. It follows that the decision of the special term is correct, and should he affirmed.