This is a petition by the executrix of the will of Betsey T. Hayward for instructions as to the time when certain legacies given by that will are payable^ The clauses under which the question arises are the fourth and the sixth. The fourth is as follows: “ Item 4th. I give and bequeath to my husband William A. Hayward, during his natural life, the one half of all the personal property belonging, due and owing to me at the time of my decease, excepting the same stated and set forth in the first item of this will. And after his decease, I give and bequeath the same to my said daughter Harriet B. abso*218lutely, if she shall be living at the time of my husband’s decease, subject to certain other bequests hereinafter made.” The sixth clause is this: “ Item 6th. In the event that my said daughter Harriet B. shall not be living at the time of the decease of my said husband, William A., then immediately upon his decease, I direct my executrix hereinafter to be named, to pay the following bequests,” then follow the bequests, five in all. Two of them are for the benefit of cemeteries in Norton and Milford, one is for the purpose of keeping the family lot in the burying ground in Milford in good condition, one is to an adopted daughter, and the last is “to the trustees of Laurel Chapter No. 44, Order of the Eastern Star, in the City of New York.” The question is whether the legacies are payable on the death of the husband or on the death of the daughter, the ambiguity arising from the sixth clause. The Probate Court ruled that they were not payable during the life of the daughter and directed the executrix “ to hold the sum of $7,000 of the personal estate of the testatrix and pay the income thereof to Harriet B. Minchew during her life.” Harriet B. Minchew is the daughter. Certain of the legatees named in the sixth clause appealed.
We think that the ruling was wrong. The will is obscure and We cannot be sure that the view which we take is the correct one. But it is plain that the testatrix knew how to create a life estate. She did it in the case of her husband, and if she had intended that the legacies given in the sixth clause should not be paid until after her daughter’s death, if the daughter survived the husband, and that the income should be payable in the meantime to the daughter, it is difficult to understand why she should not have made that intention clear, instead of leaving it to be inferred from the vague provision in the sixth clause that if her daughter did not survive her husband then the bequests that followed should be immediately paid. Aldrich v. Aldrich, 172 Mass. 101. Again, by the fourth clause the remainder of the half of the personal property given to the husband for life is given to the daughter “ absolutely . . . subject to certain other bequests hereinafter made,” which are manifestly the bequests contained in the sixth clause. There is no suggestion of a life estate in the daughter also. On the contrary the gift to her is an absolute one and 'expressly made subject to the legacies *219thereinafter given which, in the absence of anything more, would make them payable at the husband’s death. Further, in the bequest to the trustees of Laurel Chapter No. 44 the gift is to take effect if the Chapter is in existence at the death of her husband, not at the death of the daughter if she survives the husband, which would seem to indicate that the death of the husband was the punotum temporis as of which the legacy was to be paid. And there is a general direction that the bequests set forth in the sixth clause shall be paid from the personal property remaining at the death of the husband if sufficient, which also would seem to point to the death of the husband as the time for the payment of the legacies. Still further, one of the bequests is to the adopted daughter, who it is agreed is younger than Mrs. Minchew, and it is hardly reasonable to suppose that the testatrix intended to postpone its payment till after Mrs. Minchew’s death. Lastly, we think that the language of the sixth clause may and should be construed rather as referring to the contingency on which the remainder is given by the fourth clause to the daughter, namely, “ if she shall be living at the time of my husband’s decease,” than as manifesting an intention that the daughter should take a life estate in the remainder if she survived the husband, and that the words “then immediately upon his decease ” have the same legal effect as the words “ subject to ” in the fourth clause.
The result is that the decree of the Probate Court should be reversed and a decree entered declaring that the legacies were payable on the death of the husband.
So ordered.