The trustees of the First Presbyterian Society of Paterson insist that the complainant shall sell the real estate of which Henry White died seized, under the requirement of the sixth paragraph of his will, and, on the other hand, the defendants, Charlotte Goodman White and Thomas White Taylor, claim that, under the will, William Henry White, of whom they are heirs-at-law, took the real estate in fee. In view of these conflicting claims, and the duties imposed upon the complainant by the will, I think he was justified in bringing this suit.
In order that he may be properly instructed, it will be neces.sary to examine and construe portions of the will of Henry, White.
*4j It is not questioned that the testator gave his widow-a life-estate in his realty. The remainder, given to his son, was contingent upon the failure of the son to come into possession. If that contingency should happen, his children, born in lawful wedlock, if they should survive him, were to take. William, died before the testator’s widow, and therefore did not come into the possession of the property. His son, William Henry White, survived him some five years, but also died before he came into-possession of the property. It is not insisted that the requisite-to his father’s taking, namely, living till he should come into possession, is, by any implication, engrafted upon the deyise to-William Henry. It is admitted that the contrary is the settled doctrine in this state. Acken v. Osborn, 18 Stew. Eq. 377; S. C. on appeal, 1 Dick. Ch. Rep. 607; Crane v. Bolles, 4 Dick. Ch. Rep. 373.
The trustees of the First Presbyterian Society rest their claim upon the insistment that it was the intention of the testator to limit the devolution of title in his property to his direct heirs,, and, in the case of the failure of such heirs, to have it sold for the benefit of the society. The argument is that such intention is. sufficiently manifested by the testator’s express limitation of the remainder to William’s children “ lawfully begotten in wed-.lock,” and by the condition upon which the society is to take, which is the death of William, “ leaving no children or other-lineal descendants to inherit the said property.” The insistment can derive little support from the first of these clauses taken by itself, for the manifest purpose of that clause was to limit the-devolution of title to legitimate children of the testator’s son and exclude‘illegitimate children, not for the benefit of lineal descendants, but impliedly to prefer lawful kindred, even though collateral. The more serious consideration is presented by the-second clause, especially when it is taken in connection with the clause just commented upon. It manifests a preference for the Presbyterian society over collateral kindred. If William should die leaving no children — impliedly children of the character previously referred to, “ begotten in lawful wedlock,” or other lineal descendants, the issue of children — the property *5•shall go to the society. I think that the desire to limit the devolution to lineal descendants, thus exhibited, is clear. But testamentary intent is the purpose to render effective the testator’s preference or desire and consists of something more than the mere desire. The testator’s preference of the Presbyterian society over his collateral kindred, though apparent, is not alone sufficient to give direction to the property. It must be supported by the appearance of a - purpose that the preference shall have effect. Does such purpose appear ? The testator provided •■that if William should die before coming into possession, his’ lawful children should take in his stead, and,if he should! die -without leaving such children, or the issue of deceased children, before coming into possession, the property, at the expiration of the life estate, should be sold by the executors for the benefit •of the society. However strong his desire may have been to prefer the church to collateral. kindred, he did not attempt to provide for the execution of that desire beyond the. time when Tiis son should die prior to his coming into possession. He meant that if his son should come into possession he would take a fee even though immediately thereafter he should die without lawful issue, and, if the son should die before coming into possession, that the son’s lawful children should, at the son’s death, take the fee whatever future events might be. But if, at the time of the son’s death, there should be no children of the son or their issue, then the right of the society would attach subject to the life estate. Each contemplated contingency was to hinge upon -the death of William and relate to that time. Ho attempt was made ■ to control the estate after that, event. The testamentary purpose, with reference to the,estate, then ceased. • •. ,‘
The real estate belongs, to the heirs-at-law of Williám Henry White, and the complainant has no further duty to perform with reference to it. - • • • - ■ • . .
By the fourth paragraph of the will,- the testator imposed upon his,executors.the duty of notifying his son, or “the legal representatives ” of the son,' of the death.'of the. testator’s wjdow^ At the widow’s death the son was' dead, and, ifi turn, his son was dead, and the perfpmance of the prescribeckduty.pf potifica*6tion involved the ascertainment of the heirs-at-law of the grandson, they being “the representatives” so far as real estate is concerned. Under instructions from this court the executor performed that duty and necessarily expended in his inquiries,, in this country and in England, $242.10. The notice was' given through actual and constructive service of process in this suit.. The bill asks that the disbursement thus made may be charged upon the real estate, there being no personalty. It is properly so chargeable, and the prayer in this respect will be granted. The parties to the suit will be allowed their costs, to be paid out of the real estate.