The testatrix, Mary J. Martin, died on the 26th of July, 1896, leaving a last will and testament which was duly admitted to probate and letters testamentary issued to the executor and executrix named, who were also appointed trustees. She was survived by seven children—one son, who was an incompetent, and six daughters, all unmarried except the eldest. - In the 2d clause of her will she directed that the proportionate share of the son in her estate should be held in trust for his support during.his life and then continued : “ Upon the death of my said son, I give, devise and bequeath the said share to my unmarried daughters in equal shares.” The son died on the 27th of October, 1908, and at that time all of the daughters were living but only two remained unmarried, three, having married after the death of the testatrix. The trustees were of the opinion that the two daughters who were unmarried .at the time of the death of the son were entitled to the share which had been held in trust for him. This action was brought by one of the daughters who had married intermediate the death of the testatrix and the son, for a construction of this provision of the will, she claiming that under it the share belonged to the five daughters who were unmarried when the testatrix died, and for an accounting. The trial court sustained her contention, and from an interlocutory judgment to this effect, and directing an accounting, this appeal is taken by the two unmarried daughters.
The sole question presented is whether the testatrix intended to give the share held in trust for. the son to the daughters who were unmarried at her death or to those who were unmarried at the death of the son.
*312After a careful consideration of the whole will I am unable to agree with the conclusion reached by the trial court. It seems to me that the language Used indicates unmistakably an intention on the part of the testatrix that the share of her estate given in trust during the life of the sbn should, upon his death) go to the daughters who were then unmarried. ■ As originally prepared, tlie will, in the provision quoted, contained the word “ surviving,” which the testatrix, before execution, struck out and substituted in its place the word “ unmarried.” Had the will been executed as originally prepared, it seems to me clear that the testatrix would then have intended to give the share to the daughters surviving at the time of the son’s death, for not only is it a rule of construction that words of survivorship in bequests of personal property refer to the period of division (Teed v. Morton, 60 N. Y. 502; Matter of Smith, 131 id. 239; Sohlereth v. Sohlereth, 173 id. 444), but in other portions of the will the testatrix was careful to use the words “ surviving me ” or “ who may survive . me ” when she meant the persons surviving her. The only other place in the will where the word “ surviving ” is used alone is in the 1st clause, where she directed" her execntoi’s and trustees to maintain a home for such of the unmarried daughters as might wish-to live together, and if at any time it should cease, to be practicable to maintain such a home they should divide her furniture, etc., among “ toy surviving children in equal shares.” It cannot well be doubted that in this clause she meant the children who were surviving when the division was made, and I think it also follows that when she later used the words “surviving daughters” she had in mind the daughters who were surviving upon the son’s death; otherwise there could be no feasonable explanation of her using in other places in the will the words “ surviving me ” or “ who may survive me.” It seems to me, therefore, when she substituted the word “ unmarried” for the word “ surviving” she had in mind the same period of time of distribution and intended to give the share to the daughters who were unmarried at that time. I have reached this conclusion from a consideration of thé whole will. It was executed in April, 1894, and at that time, as upon her death, there were five unmarried daughters. In the 1st clause of the will' she expressed her desire that her “ unmarried daughters, or such of them as desire to live *313together with my son ” should live in one household, and for this purpose she directed the executors and trustees to keep her house, with all its furnishings, in good repair.for their use “during the lives of the two youngest of my daughters who may survive me, but only so long as any of my daughters remaining single may choose to make it their home ” — a fund being reserved for that purpose. She further provided that if such unmarried daughters, for'any reason, should prefer to live elsewhere, a fund should be set apart under the same conditions for the maintenance of such other home for them, and upon the termination of the trust or the abandonment of such home her furniture, pictures, etc., should be given to her “ surviving children in equal shares ” as before stated. The 2d clause of the will — the construction of which is here under consideration — directed the executors and trustees to set apart for the support of the son “ the proportionate part which he would-receive of my estate, in view of the number of my children who may survive me, and of my children who may have died before me' leaving lawful issue me surviving,” giving the share upon the death of the son to her unmarried daughters. The 3d clause of the will directed that the residuary estate be held in trust “ during the lives of the two youngest of my daughters who may survive me, but not beyond the period of ten years after the date of my death to pay the income in equal shares “ to my children,” except the son. “ Should, however, any of my daughters have died leaving lawful issue surviving me, then I direct my said executors and trustees to apply the share of said income which would have gone to the 'parent” to the use of her issue. Upon the termination of the trust the fund itself was given to the children, except the son, the issue of any deceased child or children to receive the share of the parent.
It is quite apparent, therefore, that -the testatrix intended to make special provisions for her unmarried daughters, but in this' connection it was urged that since, when the will was executed, the eldest daughter was married to a man of large means, she must have had in mind the five daughters then unmarried and desired to give them, for that reason, a larger proportion of her estate, to the exclusion of the eldest daughter. The other five daughters were then of marriageable age, and any or all of them, so.far as the.testatrix knew,. *314might marry equally as well or better than the one already married. Their ages ranged from nineteen to thirty-one, and the provisions of jhe will quoted indicate that the testatrix fully appreciated the possibilities that some of them might marry before her death, for she made provisions in .both the 2d and 3d clauses, in case any of her daughters should die before her,, leaving lawful issue, that then and in that event the issue' should take ; and that some of them might marry after her death, as clearly indicated by the provision of the will for the maintenance of the house “ only so long as any of my daughters 'remaini/ng siiygle may choose to make it their home.” There is nothing in the will, so far as I am able to discover, to indicate an intent to discriminate against the eldest daughter, except in so far as special provision was made for those who might remain unmarried.; unmarried, not at the time the will was made, or at the time of her death, but at the time the trust fund became available for distribution.
This interpretation is not in conflict with any rule of construction, for it has frequently been held that where a distribution is to be made.'among a class it will be confined to persons who answer the description at the time when the distribution is directed to be made: (Matter of Crane, 164 N. Y. 71; Matter of Allen, 151 id. 243; Matter of Baer, 147 id. 348; Delaney v. McCormack, 88 id. 174; Teed v. Morton, supra.) But if it were,, the same result would follow if the conclusion is correct as to the testatrix’s intention. Rules, of construction of wills are for the sole purpose of ascertain-, ing the intention of the testator, and if. that is clearly manifest, it must control. (Roosa v. Harrington, 171 N. Y. 341; Matter of Tienken, 131 id. 391.)
It may be assumed, as contended by the respondent, that upon the death of - the testatrix the remainder vested in the then unmarried daughters, but it was subject to be- divested by their marrying before the death of. the son. (Lyons v. Ostrander, 167 N. Y. 135; Weymann v. Weymann, 82 App. Div. 342; Flanagan v. Staples, 28 id. 319.) Three of them did marry, and by so doing their interest became divested and the same- vested in the two unmarried daughters, who are.entitled to the trust fund.
It follows that the married daughters have no interest in the trust estate. The facts being undisputed and incapable of being *315changed upon another trial, the interlocutory .judgment' should be reversed and one entered in accordance with the views above expressed, and the accounting should proceed.
Clarke and Scott, JJ., concurred; Ingraham, P. J., and Dowling, J., dissented.