App. Div.] First Department, March, 1906. One of them, At the time of intended Roxbury. All of these residuary legatees were alive at the date of the death of the testator, October 15, 1902. Charles W. Roxbury, was killed on July 11, 1903. said Roxbury's death no part of the residuary estate had been divided by the executors among the residuary legatees. Roxbury left surviving him a widow and four infant children. The executors when they came to make a division and distribution of the resid uary estate divided it between the six remaining legatees. The learned surrogate has determined that "Charles W. Roxbury having outlived the testator, became, upon the death of the latter, immediately entitled to an indefeasible vested one-seventh interest in such first part of the residuary estate and its proportional share of the net income of such estate from the date of the death of the testator, together with one-seventh of any interest that accrued before his death from the sums required to be set apart to pay the annuities. This part of decedent's estate, which represents all that Charles W. Roxbury is entitled to under the residuary clause of the will, passed upon his death to his administratrix and she is now entitled to receive the same." Three of the six surviving residuary legatees appeal from so much of the decree as puts into effect the surrogate's interpretation of the clause in controversy. In Williams v. Jones (166 N. Y. 532) the court said: "The intention of the testatrix must be our absolute guide in construing her will. Such is the mandate of the statute, and that principle is so firmly established by the decisions of this and ofher courts as to render any citation of authorities needless." Examining the will at bar we find the childless testator intent upon caring for his wife, his two sisters, his sister-in-law, two nephews and two nieces. For we may dismiss the specific legacies for small amounts from this consideration. To his wife he gave absolutely his house and its effects and $5,000. To the six others who were the object of his special care he gave various sums outright. To these six he also gave annuities for ten years after his decease. He then provided that in case of the death of any of the beneficiaries to whom he had bequeathed any sum in his will before they had become entitled to the whole or any part of the said bequests, such part of the legacy bequeathed should be paid to their next of kin or legal representaAPP. DIV.- VOL. CXI. 38 First Department, March, 1906. [Vol. 111. tives as soon after their respective deaths as may be convenient. Having by codicil expressly revoked the 25th clause of the will which had attempted to continue the annuities of the next of kin or legal representatives of the annuitants in case of their death before the expiration of the term limited by the provision last cited, making the principal vest in the next of kin immediately on the death of the annuitant, he specifically in said codicil ratified and confirmed his said will in each and every particular, except as modified by the codicil. He, therefore, clearly had in mind, so far as the specific bequests and the annuities were concerned, the possibility of the death of said beneficiaries, both before his own decease and also thereafter and before enjoyment, and as to such specific legacies and annuities provided that they should not lapse but should pass to the next of kin. But when it came to the disposition of the bulk of his estate, the residuum, "all the rest, residue and remainder of my property and the interest which may be received from the sums set apart to pay the legacies," his purpose was quite different and was expressed in language so clear and apt as to leave, as it seems to me, no room for argument as to its intent. This estate he intended his wife and the six relatives named to share and enjoy. He knew them. He was concerned about them. These were the chosen objects of his bounty. For their children, born or unborn, or more remote kin, he had no care. And in express terms he provided that if any of them should die before distribution, then the residuary should be divided among the survivors only, share and share alike. It is quite true that if the residuary clause had stopped in the middie there would have been a complete and absolute gift, title to the appropriate share in the residue would have vested at the time of the death of the testator, no matter how much time might have elapsed before distribution, and would have been transmitted to the next of kin of any residuary legatee dying before such distribution. But the said clause did not stop in the middle, but, following a comma, it went on, "and in case of the death of either my beloved wife, my sisters, my nieces or nephews before the whole of my estate shall be divided, then I direct the said residuary to be divided among the survivors only share and share alike." We are to interpret the will of the testator, not to make a will for him. We are to find his intent from the language he used. The last expression App. Div.] First Department, March, 1906. of his desire as to the distribution of the greater part of his estate was that it should go to the survivors only of the carefully enumer ated objects of his special care when the time for distribution came. We have no right to erase those words from his will. * * There is no legal objection to this scheme of the testator. There was by the will an absolute conversion of the real estate into personalty as of the time of the testator's death, and the several distributees took their interests as money and not as land. The title to the shares vested upon the death of the testator in the residuary legatees, subject to a limitation over to the survivors in case of death before the period of distribution. In Robert v. Corning (89 N. Y. 225) the court said: "The postponement of the distribution, which was contemplated, was for the convenience of the estate to enable the executors advantageously to convert the property. The limitation over to the issue of any child dying before the distribution, was the limitation of a future contingent estate to such issue." In the will at bar a conversion of the real estate into cash and mortgages was required. The executors were given full discretion "to determine whether the said property shall be sold at public or private sale for all cash cr part cash or part mortgage." The several bequests of specific amounts were all made payable at the convenience of the executors. These provisions indicate a knowledge on the part of the testator that the settlement of this estate would require time and that he intended such a deliberate settlement as should secure the best returns from the property sold. These provisions strengthen the conclusion I have reached and lend great force to the words "in case of the death * before the whole of my estate shall be divided." It is settled beyond question that where there is a devise or bequest to one person in terms which would pass the fee or an absolute estate, if there were no words of limitation, and there is a subsequent provision giving the same estate to another upon the happening of a contingency, the devise or bequest over will take effect. In Norris v. Beyea (13 N. Y. 273) it was held that "There is in truth no repugnancy in a general bequest or devise to one person, in language which would ordinarily convey the whole estate and a subsequent provision that upon a contingent event the estate thus given should be diverted and go over to another person. * * First Department, March, 1906. * * * [Vol. 111. The latter clause in such cases limits and controls the former, and when they are read together, it is apparent that the general terms which ordinarily convey the whole property are to be understood in a qualified and not an absolute sense. So familiar is the doctrine that a limitation may be engrafted upon a devise in fee, that it is that circumstance which forms the distinction between remainders and executory devisees." In Tyson v. Blake (22 N. Y. 558) it was said: "A general bequest of personal estate like a fee in lands, can be subjected to a limitation over on a condition which is not too remote. If the direction is that it shall go to another beneficiary on a contingency which must happen at the death of the first taker, the limitation is within the rules of law and will be sustained." In Oxley v. Lane (35 N. Y. 340) the will read: "I will, order, devise and bequeath that if either of my said sons or daughters, or if both of my said grandchildren shall die without issue before the final distribution of my estate at the end of twenty-five years after my decease as aforesaid, that the share of the party or parties so deceased shall be shared equally among all my other children, share and share alike." The court said: "It qualifies the absolute title and estate previously given to such deceased child or grandchildren by a conditional limitation in favor of all the children of the testator then surviving. This subsequent limitation over is not repugnant to the prior devises and bequests, although they are in language denoting an absolute gift of the whole estate in fee, and it will be sustained as a valid executory gift * * "It is hardly neces sary to cite the numerous cases supporting executory devises and conditional limitations. The rule has not been changed by later cases. "The appellant's counsel invokes the rule of construction that when there is a bequest to one person absolutely, and, in case of his death without issue to another, the contingency referred to is a death in the lifetime of the testator. But this rule has only a limited operation and cannot be extended to a case where a point of time is mentioned other than the death of the testator to which the contingency can be referred, or to a case where a life estate intervenes, or where the context of the will contains language evincing a contrary intent. (Vanderzee v. Slingerland, 103 N. Y. 47; Matter of N. Y., L. & W. R. Co., * * * App. Div.] First Department, March, 1906. Mead v. Maben, 131 105 id. 89; Fowler v. Ingersoll, 127 id. 472; id. 255; Mullarky v. Sullivan, 136 id. 227.)" (Matter of Denton, 137 N. Y. 428.) "Where after a devise and bequest in language denoting an absolute gift of the whole estate in fee, there is a subsequent limitation over in the event of the first devisee dying under and without issue, the gifts are not repugnant to each other and the latter is a valid executory gift." (Williams v. Jones, 166 N. Y. 522.) age Mr. Roxbury having died before the period of distribution arrived, the conditional limitation over took effect and his administratrix acquired no right to the share of the residuary estate bequeathed to him. The right to one-seventh of the residuary estate which had vested upon the death of the testator was divested by the happening of the contingency provided for. So much of the decree of the surrogate as is appealed from must be reversed, with costs to the appellants payable out of the estate, and the proceeding remitted to the surrogate for action in accordance with the views herein expressed. O'BRIEN, P. J., INGRAHAM and MCLAUGHLIN, JJ., concurred; HOUGHTON, J., dissented. HOUGHTON, J. (dissenting): Charles W. Roxbury having survived the testator, I think he had a vested interest in such of the residuary estate as existed at the time of his own death, and that the decree of the surrogate was right and should be affirmed. The intention of the testator seems quite plain. After the payment from his estate of the specific legacies which he had given, and taking out the provision for his monument, he must be presumed to have realized that a large residuum, consisting of more than half of his estate, would be left. The annuities or annual payments provided were not to be made from income for they were expressly stated by the testator in his codicil to be legacies payable in ten annual installments. It was, therefore, incumbent upon the execu tors to set apart $43,500 to meet these annual payments of $4,350 as they fell due each year for a period of ten years. This sum could not be permanently invested, because it was necessary to pay out one-tenth part of it annually. The testator undoubtedly assumed |