The construction adopted by the Surrogate and by the majority here tends to contravene the obvious testamentary scheme of the testatrix and, in fact, fails to give effect to her will as written. Therefore, I cannot agree to an affirmance of the decree of the Surrogate.
The testatrix was survived by a husband, a son and twin granddaughters (children of her son). By her will and codicil, the provisions for her husband and son were limited to certain bequests, which, when compared to her estate as a whole, were minor in value or amount, and to certain trust income benefits for her son during specified periods. Then, finally, according to the terms of the will, the corpus of all the residue of her estate was to vest in her grandchildren or their issue, and particularly, in this connection, she was favoring her twin granddaughters.
We are bound, of course, to give “ effect to the express general testamentary plan and purpose of the testator ”. (Matter of Selner, 261 App. Div. 618, 622, affd. 287 N. Y. 664.) Clearly apparent from the will and codicil is the plan of the testatrix here, after providing trust income benefits for her son, to ultimately vest the remainder interest in the corpus of all the residue of her estate in her grandchildren, the children of her son. There being nothing in the codicil indicating that she intended to vary this plan, her intention should prevail, and it was improper for the court to arrive at a construction which takes away from the grandchildren a portion of the corpus of the estate and passes it as intestate property to her son and husband. „ ¡ , ....... „
*379The will and the codicil are to be taken and construed together as one instrument; and the codicil should not “ have any other operation than may be necessary to give effect to its provisions as the later expression of the testator’s will.” (Hard v. Ashley, 117 N. Y. 606, 613.) A codicil should not operate to revoke or cut down ‘ ‘ a previous devise or bequest beyond the clear import of the language used, Effect must be given, so far as possible, to all parts of the will, and when the several provisions can be reconciled consistently with the intentions of the testator, as they appear and may be gathered from the original instrument and codicil, that construction will be favored. An estate once devised, or an interest intended to be given, will not be sacrificed on the ground of repugnancy, when it is possible to reconcile the provisions supposed to be in conflict.” (Goodwin v. Coddington, 154 N. Y. 283, 286.) So, while the provisions of the codicil here, as the later expression of testatrix’ intent, are to be given full effect in accordance with their terms, the disposition made by the testatrix of her residuary estate must also be honored as fully as is consistent with such terms.
Here, by the testatrix’ will, she expressly disposed of “ all the rest, residue and remainder of my estate, both real and personal, of whatever kind or nature and wheresoever the same may be situate ”, Then, by her codicil containing the provisions for the special trust fund of $25,000 for the benefit of the son until age 50, she expressly provided that she did * 1 ratify and confirm my said Last Will and Testament in every respect save So far as any part of the same is inconsistent with this Oodicil.” So, clearly, the effect of the codicil was merely to take the said sum of $25,000 out of the residuary estate to the extent necessary to create the trust and to carry out the provisions in connection therewith. Then, there being no express disposition by the codicil of the remainder on the termination of the trust when the son was to reach the age 50, such remainder would then pass under the said general residuary clause and not as intestate property.
The “inference is clear and strong” that the testatrix did not intend to die intestate as to any part of her estate (Matter of Haber, 281 App. Div. 383, 385, affd, 306 N. Y. 706), “ The presumption against an intestacy is particularly strong where the subject of the gift is the residuary estate.” (Matter of Birdsell, 271 App. Div. 90, 95, affd, 296 N. Y. 840.) So, here, certainly we may and should give full effect to the general rule ‘ ‘ that in a will of personal property the general residuary clause carries whatever is not otherwise legally disposed of.” (Kerr v. Dougherty, 79 N. Y. 327, 346.)
*380It is true that there were in testatrix’ codicil express provisions for the falling of the principal of the trust into the residuary estate under certain specified contingencies, namely, in the case of the death of her son prior to his attaining the age of 50 years or in the event he predeceased her. But the presence of these provisions, applicable under the stated contingencies, is not at all inconsistent with an intention on her part that her general residuary clause should also embrace the trust fund remainder in the contingency not provided for, namely, in the event the son should reach age 50. Bather, it seems inconceivable that the testatrix would intend that the remainder pass differently in case the son should reach age 50. For instance, no reason is or can be advanced for believing that the testatrix, on the one hand, would want the principal of the trust fund to pass into the residue if the son died just before reaching age 50, say at 49% years, but that, on the other hand, if the trust continued until he had reached such age, then that she would not want it to so pass.
The Surrogate reasoned, in part, that (33 Mise 2d 256, 258) * ‘ If we permit the remainder to go into the residuary estate in the contingency not provided for it would be in effect a gift by implication to the residuary estate.” Such reasoning, however, is clearly inapposite. The residuary clause, in the testatrix’ will, either embraces the remainder, or it does not; and this depends upon her intention to be ascertained from the will and codicil, construed as a whole.
I conclude that the Surrogate’s determination, which has the effect of cutting down the residuary estate, to exclude the corpus of this particular trust fund created by the codicil, must be rejected. The decisions cited by him are not controlling and do not support his determination in that they all involve cases where there was a failure of a portion of the residuary estate. To affirm the Surrogate’s decree — and I am summarizing— not only tends to defeat in part the testamentary scheme of the testatrix and the express terms of the residuary clause as written in her will, but results in a disposition of a substantial portion of the principal assets of her estate in a manner clearly contrary to her wishes, namely, as intestate property and, as such, to her husband and her son who were, according to her intentions, to take only in a limited manner, as specified, in her estate.
The decree of the Surrogate should be modified to provide that, when the son arrives at age 50, the corpus of the trust fund set up for his benefit by the codicil shall pass under the residuary clause of the will.
*381Babin and Bergan, JJ., concur with Breitel, J. P.; Eager, J., dissents in opinion in which McNally, J., concurs.
Decree, so far as appealed from, affirmed, with costs to each of the parties filing briefs payable out of the estate.