The question involved in this appeal is one of law as to the construction of the will of the deceased and the distribution of the estate in. accordance with the construction adopted. Practically all the property of which Alice Yictorine Leavitt was possessed at the time of the execution of her will was thirty shares of stock of the Standard. Oil Company of New Jersey. In regard to that her last will and testáment provided as follows: “Seventh. I give and. bequeath to" ihy *71executors hereinafter named the 30 shares of stock of the Standard Oil Co., owned by me, ikt trust, to receive the income thereof, and apply * * * to the use of my brother, Alexander Leavitt * * * during his life * * *. Eighth. Upon the death of my said brother I direct that the 30 shares of Standard Oil Co. stock aforementioned be sold and the proceeds divided in the manner following: together with whatever income may have accumulated thereon after the payment of the annuity as directed in clause seventh of this will.” Then follow three separate bequests of sums of money, and the will continues: “D. All the rest, residue and remainder of said trust fund, after the payment of the foregoing legacies shall be divided into two equal portions. I give and bequeath to the Home for the Aged of the Little Sisters of the Poor of the City of Hew York one of said portions. E. The remaining portion I give and bequeath to the College of St. Francis Xavier * * *. Ninth. All the rest, residue and remainder of my estate, including any legacy which may for any reason lapse or be void I give and bequeath to Mrs. Roy Johnston * * *.”
Subsequent to the execution of the will, and on April 2, 1911, Alexander Leavitt died. On May 15. 1911, the United States Supreme Court (Standard Oil Co. v. United States, 221U. S. 1) modified and affirmed the decree of the lower court pursuant to which fhe Standard Oil Company of Hew Jersey on December 1, 1911, distributed to its stockholders an equivalent proportion of the stock of its various subsidiary companies. The testatrix did not surrender her said thirty shares of Standard Oil Company of Hew Jersey stock, but under said decree received in addition various shares and fractional shares of stock in the subsidiary companies proportionate to her holdings of Standard Oil Company of Hew Jersey stock.
On September 18, 1912, testatrix executed a codicil to her will by which she made a specific legacy of a portrait, certain bequests aggregating $1,700, and in all other respects ratified and confirmed the will.
*72Between the date of the distribution of the stock pursuant to the 'decree and the date of the death of the testatrix, December 29, 1912, she exercised the right to subscribe for and purchase stock which was given to the stockholders of Swan & Finch Company, Vacuum Oil Company and Standard Oil Company of California. This stock, with the dividends thereon, sold for $2,138.44. To make this purchase she borrowed on her note the sum of $600 from the German Bank of Louisville, Ky., which note was outstanding and unpaid at the date of the death of the testatrix.
As to the ordinary dividends received during the testatrix’s lifetime on the original thirty shares and the dividends (ordinary, extraordinary or stock) of the subsidiary companies the disposition by the surrogate is not questioned upon this appeal.
The learned -surrogate has found, however, that the bequest of the thirty shares of stock in the Standard Oil Company carried with it the shares of stock of the subsidiary companies awarded upon the distribution made by the Standard Oil Company in December, 1911. This decision was first made in the transfer tax matter and has been adhered to in the accounting proceeding. This construction practically eliminates the codicil to the will, and) the reason that the legatees of the codicil are not appealing is disclosed by the petition, that the executor has an agreement with the Home for the Aged, of the Little Sisters of the Poor and the College of St. Francis Xavier consenting to the payment of these legacies, and that each of such beneficiaries of the trust will allow half of the amount required for such payment to be deducted by the executor from the amount of tne trust fund to which each is entitled..
In the construction of a will the first and all-important consideration is to ascertain the intention of the testator, and to give effect to each provision and to every word used if it be possible. When, therefore, the result reached- by a given construction renders nugatory certain clearly expressed provisions *73o-f the will, there is a wrong result which demonstrates a wrong construction. The fact that after the death of her brother, and after she had received the stock Tn the subsidiary companies she made a codicil to her will, containing certain pecuniary bequests, that could only be paid out of the proceeds of that stock, demonstrates that it was not her intention that the subsidiary ■ stock was to be considered as a part of the original thirty shares. It is urged that as the stock she purchased cost her a trifle over $1,700, she expected the legacies to be paid out of this stock and not out of the stock of the subsidiary companies. She knew, however, that she had become indebted to the extent of $600, which, with interest, would have to be paid, together with the expenses of administration. Experience has demonstrated that not one dollar' of the proceeds of this stock is available for the payment of the pecuniary legacies given by the codicil.
While it is true that as to a specific bequest the will is deemed to speak as of the time of its execution (Matter of Delaney, 133 App. Div. 409), and had the Standard Oil Company of ¡New Jersey been reorganized, these specific thirty shares of stock surrendered and other shares issued in lieu thereof, undoubtedly the substituted shares would have passed under the specific bequest. (Mallam v. McFie, 81 L. J. [N. S.] Ch. 220; Turner v. Deeming, Id. 453; Blair v. Scribner, 65 N . J. Eq. 498; 57 Atl. Rep. 318, 328.) That, however, is not the present case. There has been no change of identity, the same thirty shares of stock that were specifically bequeathed were in existence, and could be applied to the satisfaction of the legacy. The making of the codicil is a republication of the will and carries forward its date of execution to the date of the codicil, and the testatrix must be. deemed to have spoken as of the date of the codicil. Viewed in this light, it is clear that it was her intention that thirty shares should still be applied as directed in the 7th and 8th clauses of the will, but that the stock in the subsidiary companies should be applied in satisfaction of thé pecuniary legacies, and if. *74there was anything remaining it would by force of the will pass under the residuary clause. It is conceded that the stock .dividends so passed. The learned counsel for the respondent argues that this follows because a dividend is the voluntary act of the directors-, while the distribution of the stock of the subsidiary companies was an involuntary act compelled by the decree of the United States Supreme Court. The action of the directors of the corporation in making the distribution is not the question to be considered, but the intention of the testatrix in disposing of the property which she had received and the operation of the law upon the property in her possession are the questions to be determined. The case of Brundage v. Brundage (60 N. Y. 544) was an action to construe a will. The will bequeathed ten shares of Hew York Central Railroad Company stock to the testator’s daughter and twenty shares: of such stock to his wife for her sole use during life. S'aid company, after the execution of the will and before the testator’s death, issued to its stockholders what were styled interest certificates. By their terms they were made assignable, and payable at the option of the company out of future earnings-, with dividends thereon, or convertible into stock. It was held that the legatees took the specified number of shares of stock as they were at the time of the testator’s death, and could claim no right to, or interest in, the certificates; that, having been issued to .and received by the testator, they became an independent- part of his estate and passed by the residuary clause óf the will, and the court said (p. 549): “If dividends * * * then, as dividends, they belonged to the stockholder owning the shares upon which they were paid; paid to be sure as something growing out of hi-s stock, but instantly when paid, separable from and independent of it, as much so as though paid in money and appearing in his assets as a deposit to his credit in his bank account. If not dividends * * * then by their terms they are transferable by the holder, and by their terms, and by the necessary legal effect of them, an independent thing of value, *75not a part of the stock, nor in any ways attached thereto, or accompanying it.”
There can be no question but that the stock in the subsidiary company was an independent thing of value in the hands of the testatrix in her lifetime that she could have sold or given away. If she had sold it, and deposited the money in 'her. bank account, it hardly seems credible that any one would have claimed that the money would have passed under the specific legacy of thirty shares of stock. Uor in my opinion was there any guaranty that the stock should not be diminished' in value by a distribution of surplus profits intermediate the making of the will and the death of.the testatrix. The thirty shares of stock sold for $12,734.40 or at four and one-quarter times its par value. Therefore, after the distribution of the stock of the subsidiary companies the surplus remaining amounted to $325 on each $100 share of the Standard Oil stock. It is conceded that if the company had distributed so much of the surplus as a dividend, and delivered this stock which was a part of the surplus, as was done by the Union Pacific under like compulsion of the Federal courts, the stock would have become a part of the general estate, and not attached to, or accompanying the shares mentioned in the specific legacy. To my mind the method of distribution of the surplus, whether it be called a dividend or not, has no bearing on the case. If if did, to my mind, the controlling fact would not be the question of the intent of the directors, but the intention of the court in ordering the distribution, and that was clearly that the holding of these shares in the subsidiary companies was illegal, and, therefore, that the Standard' Oil Company should no longer hold it as a part of its surplus but should segregate these shares and effectually dispose of them. To now hold that nevertheless they remained attached to and passed as an incident with the transfer of the stock of that company is to go counter to that decision.
I am of opinion that the stock of the subsidiary- companies when issued and received by the testatrix became an independent *76asset of the estate, not in any way attached to or accompanying the original stock; that it was the intention of the testatrix to have the legacies of the codicil paid out of the proceeds of the subsidiary stock; and that the thirty shares of stock of the Standard Oil Company of New Jersey passed under the 8th clause of the will to the Home for the Aged of the Little Sisters of the Poor and St. Francis Xavier College, and that after paying debts, executor’s commissions and the expenses of administration, whatever is left passes to the residuary legatee.
In my opinion the decree of the surrogate should be reversed and the matter remitted.
Davis, J., concurred.
Decree affirmed, with costs to respondents appearing separately and filing briefs.