dissenting. This is an appeal from the decree of the surrogate of the county of Columbia, made upon a final accounting before him, of Augustus McKinstry, executor, etc., of Robert McKinstry, deceased.
Robert McKinstry, late of the city of Hudson, of said county, died on the 27th day of October, 1870, having previously made his last will and testament, and a codicil thereto, which were duly admitted to probate, as a will of real and personal estate, on the 22d day of December, 1870.
By the will, which bears date the 19th day of November, 1864, after giving various legacies, he devises and bequeaths all his estate, real and personal, to his nephew, Augustus McKinstry, in trust, to convert the same into money, and, after payment of his debts and funeral expenses, to pay in full the several legacies thereinbefore bequeathed, and from the residue of said moneys to invest, in his own name, a sum sufficient to produce annually the net sum of $275, which he is to pay out in certain prescribed annuities, and what shall remain of said moneys, after such investment, to pay over to the trustees of the First TTniversalist society and church in the city of Hudson, for the use and benefit of said society and church; and upon the death of the annuitants, severally, such share of the sum invested as produces the annuity of each is to be paid over to said society and church for the use and benefit thereof. He then appoints the said Augustus McKinstry the sole executor of said will.
On the 13th day of December, 1869, the testator executed a codicil to said will, in and by which he declared and directed, that if, after-payment of his debts and funeral expenses, and the several legacies mentioned and bequeathed in his will, and the costs and expenses *205of settling his estate, there should remain, of the moneys arising from the sale of his real estate, and realized from his personal estate, an amount not exceeding $20,000, then his said executor “ pay over the whole of said amount so remaining to the trustees of the First Hniversalist society and church in the city of Hudson, for the use and benefit of said society and church, upon the said society and church, or any one in its behalf, executing a bond or other proper instrument, securing the payment to my brother, Henry McKinstry, during his natural life, the sum of one hundred dollars annually, and to my niece, Mary Ann McKinstry, during her natural life, the sum of seventy-five dollars annually; such bond to be approved of by my said executor as to its sufficiency, for such purpose. But in case the amount of said moneys so remaining shall exceed the sum of twenty thousand dollars, then my executor shall pay to the trustees of said society and church of the moneys so remaining only twenty thousand dollars for the use and benefit of the said society and church, upon the execution of a bond or instrument as above-mentioned for the payment of the above-mentioned annuities to my brother Henry, and my niece Mary Ann McKinstry, and that he pay over the residue thereof to my nephews and nieces who shall then be living, to be equally divided between them.”
At the time of his death the testator had nephews and nieces living who survived him, to the number of fourteen, two of whom had died before the making of said decree, to wit: Jane Sanders, on the 27th day of October, 1871, and Jane P. McKinstry, on the 24th day of December, 1872.
Hpon the 19th day of October, 1872, the executor made his application, by petition to the surrogate, for a fixed accounting, which was perfected, and the decree thereupon entered on the 27th day of January, 1873.
Hpon such final accounting, it was found and determined that, after payment of debts and legacies and expense of settling the estate, and of the $20,000 to the said society and church, there remained a surplus or residue in the hands of the executor of $24,100.16, to be paid over to nephews and nieces of the testator, in pursuance of the residuary bequest in the codicil, and the surrogate divided such surplus or residue into fourteen equal parts, of $1,721.44 each, and after decreeing to each of said nephews and nieces then living one of said shares, directed and decreed that one of said equal shares be paid by the executor to the personal representatives *206of each of said niece-s who had died before the making of said decree.
From this part of the decree, giving portions of such residue to the representatives of the deceased nieces, this appeal is taken, by six surviving nephews and nieces, one of said six having obtained the transfer of, and now owning in addition to her own, the share of a surviving nephew.
The question raised is upon the construction of the last clause of the codicil above referred to, to wit: “And that he pay over the residue thereof to my nephews aud nieces who shall then he living, to he equally divided between them.”
What is the force and effect of the expression “ who shall then be living,” in that clause F The surrogate so interpreted this expression as to entitle each of the fourteen nephews and nieces, living at the testator’s death, to an equal share of such residue, while the appellants claim that the bequest is limited to those living at the time of the making of the decree upon the final accounting.
If any effect is to be given to the words “ who shall then he living,” I can see no other than that claimed by the appellants. I am quite unable so to construe the sentence as to make the words refer to the time of testator’s death.
If such construction could be fairly placed upon them, I confess that would be the one which I should think ought to be adopted. But that I think is quite impossible.
This residuary provision is in respect to a. portion of a trust fund, uncertain in respect to its existence and amount. The testator, in considering what the trustee shall do with it, in the event that a surplus be found to exist, directs that he pay it over “ to my nephews and nieces who shall then he living.” If it had been merely “ to my nephews and nieces,” then, doubtless, all his nephews and nieces, living at the time of his death, would have been intended, but he adds, “ who shall then he living,” most clearly distinguishing between all his nephews and nieces, surviving him, and those who shall be living, when the time comes, in which the trustee is to pay over such residue. The question is one of identification of the legatees, rather than one of time, when the legacies shall vest.
The persons to receive the surplus are indicated by the description, “my nephews and nieces who shall then be living,” then, when the executor and trustee shall, after having converted the estate, real and personal, into money, have paid debts, legacies, and expenses *207of settling the estate, and established, upon an accounting and settlement before the surrogate, what amount of surplus, or residue, beyond the legacy to the TJniversalist society and church, if any, will remain for distribution. The point of time when this shall have been accomplished is the time indicated by the word then in the phrase “ who shall then be living.” The above are not only the immediate and natural antecedents of the word then in the phrase, but the only ones, or their culmination the only one, to which in the natural and grammatical construction, or by any interpretation of the language, it can refer.
Nothing can be clearer, I think, than that such is the plain import of the language under consideration; and unless this language can be disregarded, the construction adopted by the surrogate cannot be sustained. I know of no canon of interpretation in the construction of wills that requires or allows the setting aside of plain and unequivocal language.
The intention of the testator, which is the end always sought in the construction of wills, is to be ascertained, if possible, from the language of the will, and when that is expressed in plain and unambiguous language, .interpretation is not required. The maxim of Vattel, in regard to treaties and other instruments, is applicable: “ The first general maxim of interpretation is, that it is not permitted to interpret what has no need of interpretation. When an act is conceived in clear and precise terms, where the sense is manifest, and leads to nothing absurd, there can be no reason to refuse tire sense which this treaty naturally presents. To go elsewhere in search of conjectures, in order to restrain or extinguish it, is to endeavor to elude it.” Potter’s Dwarris, 126. It is one of Mr. Jarman’s rules of construction, that “ words in general are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another can be collected, and that other ascertained.” Also, that “ the inconvenience or absurdity of a devise is no ground for varying the construction, when the terms are 'unambiguous.” 2 Jarman on Wills, 743.
Much stress is laid by respondent’s counsel upon the circumstance that, if the appellants’ construction is to prevail, the consequence will be that the executor and trustee, himself one of the nephews of the testator, and comparatively a young man, has it in his power to delay the time when the shares will eventually vest, to his own advantage, from the dying off of distributees in the mean *208time, inasmuch as he is left, by the express terms of the will, “ to the free exercise of his own judgment as to the proper time to sell the real estate, and settle up the estate.”
This effect of the construction of the residuary bequest, in accordance with its plain terms and manifest sense, is no ground for varying the construction, by striking out the words “ who shall then he living,” or by an injurious torturing of the language into an unnatural and artificial meaning, which would be the effect of the construction of the learned counsel for one of the respondents. The word “ then,” it is urged, is not here an adverb of time, but refers merely to the fact or circumstance that there is a residuum; as if the will and codicil [it is said] had read as follows:
“ Whereas, it is uncertain whether the estate I shall leave at my death will exceed $20,000, after payment of my debts and specific legacies, and expenses of administration; now, therefore, in case it does, my will is, that such residue shall go to my nephews and nieces who shall survive me.” This is a paraphrase which the language will by no means bear. The word “ then” is, undoubtedly, in some connections, a conjunction, meaning, “ in that case.” It is so used in a previous part of the same sentence, “ but in case the amount of said moneys so remaining shall exceed the sum of $20,000, then, my said executor shall pay,” etc., meaning, “ in that case, my said executor shall pay.” But it is plain- that in the portion of the sentence here in question, to wit, “ that he pay over the residue thereof to my nephews and nieces who shall then be living,” the word “then” can have no such meaning, but is clearly an adverb of time. If it had been “ in case the amount so remaining shall exceed $20,000, then my executor shall pay such excess to my nephews and nieces, equally to be divided between them,” the meaning given by the learned counsel to the word “then” would be appropriate, and the paraphrase correct. The force of the word “ then,” in the clause in question, as an adverb of time, cannot, however, be avoided. The entire phrase, “ shall then be living,” necessarily relates to time, and to a time indicated by the preceding part of the sentence. The cases cited to show the inclination of the courts to construe the language of wills giving estates to classes of persons, and to the survivors of them, as meaning survivors of the testator, do not reach this case.
I have already said, that if the language here in question could be fairly construed to refer to the time of testator’s death I should *209be disposed so to construe it. In those cases the term “ survivors ” might well be construed to mean survivors of the testator, and, consequently, such construction was given to the term. Such was the case of Moore v. Lyons, 25 Wend. 119, on which, and the cases therein cited to sustain it, the counsel mainly relies. Then the language was and from and after her death [that of Mary, the devisee for life] I give and devise the said dwelling-house and lot of land to Susan, Jane and Betsey, three daughters of the said Mary, or to the survivors or survivor of them, their or her heirs and assigns forever,” and it was' held that the words of survivorship referred to the death of the testator, and not to the death of the tenant for life, pursuant to the technical rule that such construction should be adopted, unless from other parts of the will it be manifest that the intent of the testator was otherwise. But this rule is founded upon the technical meaning which has been fixed upon the words “ survivor or survivors,” in a context similar to that of the will then being considered.
Then the gift was to the three, or to the survivor of them. The remainder so given, therefore, vested in such of the three as survived the testator; a construction of the language “ survivor,” pursuant to the technical rule. But here the word “survivor” does not occur, and there are no words of gift that can be construed as applying to the fourteen nephews and nieces. The first and only disposition of the residue is, not “ to my nephews and nieces, or the survivor or survivors of them,” but "to my nephews and nieces who shall then be living,” — the testator then pointing out and specifying the persons to whom this residue is bequeathed, and not thereby merely limiting the time when a bequest already given shall take effect in possession.
No doctrine can be derived from the leading case of Moore v. Lyons, or from the English and American cases on the subject, so exhaustingly therein cited, which will refer words indicating time; in the giving of property by will, to the death of the testator, as the time of the vesting of the gift, unless the items of the will are such as will, under the rules of interpretation, bear such reference. The question is one of construction merely of the terms of the bequest, and unless, by a fair construction of them in connection with the whole language of the will, such reference can be borne out, it cannot be adopted, as we have already seen in the case at bar; the language will not bear or admit of any such construction. *210In behalf of the representatives of Jane P. McKinstry, one of the nieces who died before the settlement of the estate, it is claimed and argued that, even granting the construction herein above given to be correct, still the time referred to must be limited by the time within which the law requires the estate to be ready for settlement, to wit, at the end of eighteen months from the time of the granting of letters.
In this case the executor "was, by the testator, invested with a trust, including the conversion of his real estate into money, which he was, in terms, given no longer time than eighteen months to execute. The residue in question was to be raised, in part, from such sales of real estate, and the executor was not bound to be ready to account and settle up the estate at the expiration of eighteen months, but was left to the exercise of a sound discretion as to the time when that should be done. It is not urged that the excess of time over eighteen months which he took was at all unreasonable.
There being no time fixed by law for the division of the residue, except that when the decree was made, and the time of actual division being within a reasonable time, I think the time when the accounting and settlement was completed, and the decree for division made, must be taken as the time when the right to the shares accrued.
The result is, that the decree of the surrogate should be reversed in so far as it devotes any portion of the residue belonging to the shares represented by the appellants to the representatives of Jane Sanders and Jane P. McKinstry respectively, and that said decree should be so modified as that seven-twelfths of each of said two sums of 11,721.44 given to them, respectively, in said decree, be directed to be paid to the appellants, respectively, in addition to the sums already given them by said decree, as follows, to wit, the sum of $286.90 to each of said six appellants, and the additional sum of $286.90 to said appellant, Mary Ann McKinstry, and that the respondents herein pay the appellants the costs of this appeal.
Decree affirmed.