The opinion of the court was delivered, January 3d 1870, by
Williams, J.— We have no doubt, under the facts agreed on by the parties in the ease stated for the opinion of the court, that Annie Graham, the plaintiff below, has an interest in the residuary estate of the testator. It is apparent from all the dispositions which the testator made of his estate that his sons’ wives *480were as much the direct objects of his bounty as his sons themselves, and that he intended to make no distinction between his sons and their wives in the provisions which he made for their support. The real estate which he specifically devised to his executors and trustees, for the separate use of each of his three sons, is expressly declared to be in trust and for the use of such son and his wife so long as they or either of them shall live. And the same provident care is shown for the wives as for the sons in the provisions which the testator made for the support of both out of the annual income arising from his residuary estate. Let us see what these provisions are, for on them the question in this case turns. The residue of the testator’s real and personal estate is devised and bequeathed to his executors and trustees in trust, that they shall receive and collect the yearly income arising therefrom, and then the will proceeds in these words: “ They shall, semi-annually, divide said yearly income into three equal parts or shares, one of which shall be paid by them into the hands of each of my said sons, Stafford, Alexander R. and John, to be used for the support, maintenance and education of themselves, their wives and children, and for no other purpose; and in case of the death of any of my said sons during the continuance and existence of this trust, in regard to said residuary estate, the share payable to him, semi-annually, for the purposes aforesaid, shall be paid, one-third thereof to his widow, and two-thirds thereof to his children, &c. *******j further direct, that this residuary trust shall cease and terminate when all my said sons and their present wives, Martha, Annie and Cecilia, shall have died; and I direct that my then acting trustees shall then, viz.: after the death of all my said sons and their said wives, divide and distribute the said residuary] trust-estate among the children of my said sons, then living, and the issue of them as may be then deceased, equally, in the manner hereinbefore directed.” It is true that the will makes no express provision for the contingency which has occurred by the death of the plaintiff’s husband, Stafford, in the lifetime of the testator. But his death, though it may not have been anticipated and provided for, cannot defeat the manifest intention of the testator to provide for the support and maintenance of the plaintiff during life out of the income annually arising from his residuary estate. The trust is to continue by the express provisions of the will so long as the plaintiff shall live. But why should the testator provide for the continuance of the trust during her lifetime unless he intended that it should be for her use? We" must then construe this will so as not to defeat or set aside the clearly expressed intention of the testator, and it is manifest that he did not intend that the legacy should lapse if his son died in his lifetime but, that it should go to his wife and children, if he left any, in the propor*481tions specified in the will, whenever his death might occur. The plaintiff’s right to the legacy is not derived from or through her husband, but from the will of the testator and the provisions which he made for her support and maintenance.
Judgment affirmed.