As there is no dispute between the parties as to facts, the only question is as to the rights of the parties under the will. There is no provision in the will disposing of the property in favor of the defendants, in the event of the death of the daughter without issue. It therefore necessarily follows, that if the estate is not devised in fee to the daughter, in the event of her dying without issue, this contingent remainder is an interest in the property not disposed of by the will; and must be distributed as if the testator had died intestate. In that case the brother takes one half of the undevised interest in the real estate as an heir at law of his father ; and in the other half, his mother takes a life estate, and he takes the remainder in fee, as the heirs at law of Mrs. Wood, who took that half as an heir at law of her father, and not under the will. The widow in that case also is entitled to one third of the remainder in the personal estate, as one of the distributees of the testator, and the son is entitled to another third j and the complainant, as the personal representative of his wife and the owner of her personal estate, is entitled to the other third of this remainder, to which the wife was entitled as one of the distributees of all her father’s personal estate not legally and effectually disposed of by his will. But if the daughter, notwithstanding she died without issue, took the fee in the whole residuary real and personal estate although it was not necessary for her support, then the brother is entitled to the whole real estate, as her heir, after the death of his mother ; who, under the provisions of the revised statutes, as amended in 1830, is entitled to a life estate in the real property of her child who died intestate and without issue. (1 R. S. 2d ed. 742, *369§ 6.) And in that case the complainant, as the representative of his wife, will he entitled to the whole as the personal estate to which she was entitled under the will of her father. This, as I understand the case, is the claim set up by the complainant in his bill.
Taking into consideration the situation of the daughter at the time of making the will, and comparing it with the language of the will itself, I think it is evident the testator only meant to give the daughter a support out of his property for life, and that he did not intend to give her the estate absolutely in case she died without issue. He contemplated the event of her marriage and having issue, and has provided for that event by securing her a support out of the property during her life, and disposing of the remainder in favor of her issue after her death, So far, it is evident he only intended to give her a life interest in the income of the estate, with power to the trustee to apply a portion of the capital if, in his discretion, he thought it necessary for her support. And the limitation over to her issue is a valid limitation, having reference to the time of her death, under the provisions of the revised statutes. (1 R. S. 725, § 28.) But in the event which has happened, of her dying without issue, 1 think the testator has made no disposition of the property which remained at the time of her death. There is, therefore, a resulting trust in favor of the widow, and those who were the next of kin of the testator at the time of his death, as to the personal estate which remained at the death of the daughter. The decree must declare the rights of the parties accordingly ; and the administrator de bonis non must account for the personal estate in his hands accordingly ; that is, one third thereof to the complainant, after deducting the necessary expenses of administration and the payment of the testator’s debts, and one third thereof to the widow.
It is not stated whether any of the funds in the hands of the administrator de bonis non are the proceeds of real estate which had been sold by the executor, under the power contained in the will. Such proceeds, if there are any, are *370not a part of the testator’s personal estate ; hut belong to the defendants, as an interest in the real estate which in equity is not considered as converted into personalty.
If the parties cannot agree upon the distribution of the fund, there must be a reference to take the accounts in the usual manner ; reserving the question, of costs, and all other questions and directions, except as to the construction of the will and the rights of the parties under it, until the coming in and confirmation of the master’s report. But if the parties settle the accounts without subjecting the estate to the expense of a reference, then the complainant’s costs, as well as the costs of the defendants, are to be paid out of the personal estate in the hands of the administrator de bonis non. And the parties will draw up the decree accordingly.