rily pass an absolute interest, should never be cut down into a gift for life, except where such qualifications are necessary to make the whole will consistent.

1 Redf. Wills, 3d ed. 433, 434; Briggs v. Shaw, 9 Allen, 516; 1 Jarm. Wills. 474.

It requires very strong words to defeat a prior vested gift.

2 Jarm. Wills, last ed. 824. Where a will in terms grants a fee, and a later clause qualifies it by some limitation, it is a settled and invariable rule not to disturb the prior devise, further than is absolutely necessary for the purpose of giving effect to the posterior qualifying clause.

1 Jarm. Wills, last ed. 474: 3 Barb. 64. A clause of substitution is generally referable to the death of testator.

Maberly v. Strode, 3 Ves. 450; 1 Jarm. Wills, 478: 2 Jarm. Wills. 785.

The following are some of the cases in which wills containing terms similar to this were before the courts for construction:

Livingston v. Greene, 53 N. Y. 124; Kelly v. Kelly, 61 N. Y. 47; Embury v. Sheldon, 68 Ñ. Y. 233, McLoughlin v. Maher, 17 Hun, 215; Briggs v. Shaw, 9 Allen, 517; Clayton v. Lorce, 7 E. C. L. 218; Schenk v. Agnew, 4 Kay & J. 405; Miller v. Mc Blain, 98 N. Y.517; Leonard v. Kingsland, 67 How. Pr. 431; Re Tallmoge, 20 N. Y. Week. Dig. 69; Waugh's App. 78 Pa. 436; Mickley's App. 92 Pa. 514.

Mr. Charles J. Bissell, for certain persons named in the will of Ellen M. Wisner, respondents:

It is submitted that the devise over to the husband, brothers and sister of the testatrix, is a valid devise as a contingent limitation, and will take effect upon the death of Minnie Van Zandt without issue.

At common law the devise over would probably have been held to be void, as importing an indefinite failure of issue; but by the Revised Statutes the language used is held to mean issue living at the death of the first taker, and hence a valid executory devise.

1 R. S. part 2, chap. 1, title 2, art. 1, § 19. The absolute power of alienation is only suspended during the life of Minnie Van Zandt; upon her death without issue the estate absolutely vests in the persons named in the will, subject to the life estate in Reuben P. Wisner and Delia Fisk. The remaindermen and the life tenants could by joining in a conveyance at any time, convey the fee.

1 R. S. P. 2, chap. 1, title 2, art. 1, § 14; 5 R. S. Edmonds' ed. p. 307, Reviser's notes.

Possibly by the terms of section 19 of the same title and chapter, one of the life estates would be rejected and the remainder vest in possession on the death of Minnie Van Zandt, and the first named life tenant. This would not avoid the remainder.

Woodruff v. Cook, 47 Barb, 305; S. C. affirmed 61 N. Y. 638.

140; Heard v. Horton,* 1 Denio, 165; Anderson v. Jackson, 16 Johns. 382; Dumond v. Stringham, 26 Barb. 104; Norris v. Beyea, 13 N. Y. 273.

In none of these cases does the question appear to have been raised whether the death without issue meant a death during the lifetime of the testator; but it is assumed by counsel and the court that it meant in each case a death without issue at any time.

In 2 Jarman on Wills, 5th Am. ed. chap. 48, the various cases arising under wills where there is a limitation over, in case of the death of the first taker, are fully discussed. The general rule appears to be that when the only contingency is the death of the first taker, the will is construed to mean a death occurring in the lifetime of the testator; for the reasons that death is a certain event, and that the testator must have intended the limitation over to take effect only in the event of the death of the first taker, prior to that of the testator, else he would have provided for a life estate in the usual way.

Kelly v. Kelly, 61 N. Y. 47.

But when some other contingency is annexed to the death of the first taker, not certain in itself, such as "dying without issue," the general rule appears to be (unless controlled by the context of the will) that the limitation over will take effect upon the happening of the event at any time.

2 Jarm. Wills, chap. 49, p. 783, et seq. and cases cited; Nellis v. Nellis, 1 Cent. Rep. 296, 99 N. Y. 505; Buel v. Southwick, 70 N. Y. 581.

Rapallo, J., delivered the opinion of the court:

It may be regarded as a settled rule of construction that where there is a devise to one person in fee, and in case of his death to another, the contingency referred to is the death of the first named devisee during the lifetime of the testator, and that if such devisee survives the testator he takes an absolute fee; that the words of contingency do not create a remainder over to take effect upon the death, at any time, of the first taker, or an executory devise, but are merely substitutionary and used for the purpose of preventing a lapse in case the devisee first named should not be living at the time of the death of the testator.

This construction is uniformly adopted, unless there is some language in the will indicative of a different intention on the part of the testator. The reason assigned for this construction has been that as death is a certain event, and the time only is contingent, the words of contingency in a devise of this description can only be satisfied by referring them to a death before some particular period; and no other being mentioned, the time referred to must be presumed to have been the testator's own death. It is also founded upon the principle that, in construing wills, effect should be

Emmons v. Cairns, 3 Barb. 243; Hill v. Hill, 4 Barb. 419; Pond v. Bergh, 10 Paige,

testator, and that any other construction than the one which has been adopted would in every case reduce the estate of the first named devisee to an estate for life; for his death at some time is certain; and the words of inheritance at *See note to this case, Lawyers' Edition. [Ed.]

Nevertheless, it has been held that the same rule of construction is to be applied where the alternative devise is made to depend upon the death of the first named devisee "without is sue or "without children," etc. This question is thoroughly discussed in the opinion of Andrews, J., in the case of Vanderzee v. Slingerland, 103 N. Y. 47, Sub nom. Vanderzee v. Haswell, 4 Cent. Rep. 176, and the learned judge comes to the conclusion that although the reason upon which the rule adopted in the first mentioned class of cases was founded, does not exist in the second, yet that it is established by precedent.

It would be useless now to go through the cases. They are very numerous, and not all reconcilable, and many of them contain special features. It is sufficient for present purposes to refer to a few of the cases.

In Gee v. Mayor etc. of Manchester, 17 Adol. & Ell. 737, the testator devised and bequeathed his real and personal estate to be divided equal ly among his children as follows, viz.: "I will and bequeath to my eldest son A. one seventh share of my property, to his heirs, executors and administrators.' Then followed similar devises and bequests to each of the testator's six other children, and afterward a general provision in these words: "And in case any of my sons and daughters die without issue that their share returns to my sons and daughters equally among them; and in case any of my sons and daughters die and leaving issue, that they take their deceased parent's share."

It was held that the death referred to was a death in the lifetime of the testator, and that all his children having survived him, they each took a fee simple in one seventh of his realty.

It must be observed that unless that construction was adopted, the words of inheritance attached to the devise to each of the testator's children must in every event be rejected.

the share of the one so dying was was to be divided among the survivors, but if either should die leaving lawful child or children, such child or children should take the share of the parent. It is obvious that unless the death referred to was a death in the lifetime of the testator, the first named devisees could in no event take a fee.

Doe v. Sparrow, 13 East, 359, was a case of the same description with additional significant words, expressly referring to the testator's own death.

Woodburne v. Woodburne, 23 L. J. Eq. 336, was the same as Gee v. Mayor of Manchester, and was decided the same way.

The cases I have referred to rest on principles, and are founded on reasons, which are easily comprehended; but there are other cases in which the words "die without issue" are construed as referring to a death in the lifetime of the testator, where those principles are inapplicable, and the reasons do not exist; and of such cases Andrews, J., in the case of Vanderzee v. Slingerland, says that they stand more upon authority than upon reason.

It is stated in Jarman on Wills (5th Am. ed. p. 783) that the general rule is that where the context is silent, the words referring to the death of the prior legatee, in connection with some collateral event, apply to the contingency happening as well after as before the death of the testator.

In O'Mahoney v. Burdett, L. R. 7 H. L. Eng. & Irish App. 388, 393, it was held that a bequest to A., and if she should die unmarried or without children, to B., was an absolute gift to A., defeasible by an executory gift over in the event of A., dying at any time, unmarried or without children, and that this construction could only be effected by a context which rendered a different meaning necessary.

And in Britton v. Thornton, 112 U. S. 536 [Bk. 28, L. ed. 820], it was held that under a devise to one person in fee and in case he should die under age and without children, to another in fee, the devise over would take effect upon the death, at any time, of the first devisee under age and without children.

To the same effect is Edwards v. Edwards, 15 Beav. 357; and see Doe v. Webber, 1 Barn. & Ald. 713, and Anderson v. Jackson, 16 Johns. 382.

It was on these grounds that Lord Campbell, in delivering the judgment of the court, held that the only mode of giving effect to all the words of the testator was by treating the words in the last clause of the will as words of substitution only, in case of a lapse, and referring the death there contemplated to a death in the lifetime of the testator.

In Clayton v. Lowe, 5 Barn. & Ald. 636, the devise was in the same form as in the case last cited. The estate was given to the testator's three grandchildren, forever. If either of them

ing without issue, then to B., the death referred to is a death in the lifetime of the testator; and if A. survives him, he takes an absolute and indefeasable estate in fee.

See Home v. Pillans, 2 Myl. & K. 15, 19, and cases cited; Ware v. Watson 7 D. E. G. M. & G. 248.

Such appears to be the rule in Pennsylvania; Mickley's App. 92 Pa. 514; and the same rule has been adopted in this court; Quackenbos v. Kingsland, 2 Cent. Rep. 918, 102 N. Y. 128, and was recognized in Vanderzee v. Slingerland, 103 N. Y. 47, 4 Cent. Rep. 176, before referred to. But in that case the learned judge writing the opinion (Andrews, J.) says that the rule established by the court, applies only when the context of the will is silent and af

fords no indication of intention other than that disclosed by word of absolute gift, followed by a gift over in case of death, or of death without issue; and that indeed the tendency is to lay hold of slight circumstances in the will, to vary the construction and give effect to the language according to its natural import; and in the will which the learned judge was then constru ing, he found such indications.

I think that similar indications exist in the will now before us. The testatrix does not charge the legacies upon her daughter Minnie personally, but upon the real estate devised, so they would be borne by whomsoever should become entitled to that real estate. She devises the real estate to her, without words of inherit

ance. She then directs that in case she should die without issue, her estate, real and personal, should be possessed and enjoyed by the others named in the will. Her death without issue is a contingent event; but by adopting the construction contended for, and claimed to be established by the authorities, the court would add another contingency not specified by the testatrix, that is that she died without issue during the lifetime of the testatrix.

As if to make her intentions clearer, and to indicate that no other contingency was contemplated than the one which she had expressed, the testatrix adds, at the end of the clause: "The devise over to my husband, sister and brothers to depend upon the contingency of my daughter Minnie dying without issue,"-this repetition, clearly defining the testatrix's intention that in the event of her daughter's dying without issue, her husband, sister and brothers should enjoy the property, without reference to any other contingency.

The daughter was an infant of about six years of age at the time of the testatrix; and it would be a very forced construction of the language of the will to hold that the testatrix had an unexpressed intention that if the child should die the next year, or at any other time, after the death of the testatrix, the devise over to her husband, sister and brothers should not take effect.

Our conclusion is that Minnie VanZandt took, under her mother's will, a base or conditional fee, defeasible by her dying without leaving issue living at the time of her death; 1 R. S. 724, § 22; that her issue, should she leave any, would take by inheritance from her, but a conveyance

insurance company and a policy holder, where it is capable of two constructions, one involving a forfeiture, and the other supporting the obligation of the policy against the insurer, that construction, if fair and reasonable, which does not involve the forfeiture, is preferred by the court.

2. This rule is applicable only where the words used in a policy leave the meaning in doubt; where there is no doubt as to the meaning of the language used, such meaning must prevail in the absence of fraud or mistake.

3.

4.

Where, after the premium was due upon a policy, the company, at the request of the policy holder, postponed its payment, upon the giving of his note by the latter, for the same, containing the condition that if he failed to pay the note at maturity he should thereby immediately forfeit all claims to further insurance, and the company gave its receipt with similar condition, held, that by failing to pay such note when due the forfeiture attached and the policy holder thereby lost the right to all further insurance under his policy.

Held further, that although the policy contained a promise by the company, that upon its surrender within thirty days after the unpaid premium should be due the company would in exchange issue a paid up policy for the amount of premium received upon it, and although the policy holder offered to pay the note twelve days after it became due, he could not compel the company to give a paid up policy for the amount of premiums paid by him previous to the time when the one fell due for which he gave the note.*

5. Punctuality in the payment of premiums in the case of a life insurance policy is the very essence of the contract; and when payment is not made at the time, the company has the right to forfeit if such was the contract.

(Decided April 19, 1887.)

All concur.

The facts and questions raised appear from the opinion.

Mr. William H. Arnoux, for appellant: Cited Howell v. Knickerbocker Life Ins. Co. 44 N. Y. 276; Wheeler v. Conn. Mut. Life Ins. Co. 82 N. Y. 543; Douglas v. Knickerbocker L. Ins. Co. 83 N. Y. 504; Blacksmith v. Fellows, 7 N. Y. 401; Oakley v. Morton, 11 N. Y. 25;

*Premium notes. As to the effect upon paid up policies, of nonpayment of interest on premium notes, see Cowles v. Continental Life Ins. Co. (N. H.) 1 New Eng. Rep. 247; Bruce v. Same (Vt.) Id. 635 Holman v. Same (Conn.) 2 New Eng. Rep. 833; People v. Knickerbocker Life Ins. Co. (N. Y.)

The plaintiff has succeeded thus far. In the argument of the case here for the plaintiff, much stress was laid upon the rules governing the court in construing contracts between insurance companies and policy holders, especially when any forfeiture is to be insisted upon by the former. A strict construction it is said must be insisted upon; and the contract resulting in a forfeiture cannot be extended beyond the strict and literal meaning of the words used.

This is undoubtedly true. In cases where the meaning is not entirely plain, and where it is capable of two constructions, one involving a forfeiture and the other being fair and reasonable and supporting the obligation of the policy against the insurer, that construction is preferred by the courts which does not involve the forfeiture; not only because it is not so harsh but also because if the language be doubtful, it is that employed by the insurer, and should be taken most strongly against him. As it is said by Finch, J., in delivering the opinion of this

court:

When the first note became due it was renewed by the execution of another upon the same terms and conditions, due August 14, and the first note was then surrendered. By failing to pay this last note when due, the forfeiture provided for therein immediately attached, and the plaintiff thereby lost the right which he would otherwise have had to further insurance according to the tenor of his policy, but which he had agreed to give up on condition of obtaining an extension of the time in which to pay his premium, and by failing to pay it at the end of that time.

It is argued that taking the first note had the effect of designating a new period from which the default in payment of the premium should afterwards be measured, and that as the premium only became due under the final arrangement on the 16th of August, 1877, the plaintiff, by the policy, had the right to a paid up policy within thirty days after that time. This reasoning wholly ignores the condition contained in the note, and renders the language thereof meaningless. The note not only extended the time of payment of the premium, but it distinctly stated, not that failure to pay

But all the cases which use language of this nature as to the construction to be given words in a policy are cases where the words used leave the meaning in doubt. Where there is no doubt as to the meaning of the language used, such meaning must prevail with courts, for the simple reason that the parties have so contracted; and in the absence of fraud or mistake both must live up to their contracts or take the consequences. We entertain no doubt as to the meaning of this contract. On the 16th of February, 1877, a semi-annual payment of a premium became due from the plaintiff, which he was obliged to pay in order to keep his policy alive, or he could have made default in payment and demanded his paid up policy for the proper amount. He had thirty days from the 16th of February in which to pay the premium due that day or to make his demand for a paid up policy. He waited until the 14th of March before doing anything, and he went to the office of the defendant in New York to ask a favor, ..: the postponement of the cash payment for a short time.

This favor the Company granted, but only upon one condition which was put in writing and assented to and signed by the plaintiff. He thereby consented and agreed that if he failed to pay this note at maturity he should thereby among other things immediately forfeit all claims to further insurance.

which perhaps might give the thirty days thereafter in which to surrender the policy and demand a paid up one, but the language used was entirely explicit and free from doubt, making an unambiguous agreement to absolutely and immediately forfeit all right to further insurance if the note were not paid at maturity.

To that extent it was an alteration of the terms of the policy giving thirty days after a default in which to surrender and make a demand; and instead thereof it plainly provided for a total and immediate forfeiture, if at maturity the note were not paid, If language as plain and unambiguous as this is not only to be twisted out of its natural meaning but is to be wholly ignored by courts of justice, it will be useless in the future for companies to make any effort to bind policy holders to perform their contracts. The use of language is to express ideas; and writing is resorted to in order to furnish conclusive proof of what language was used. Being certain of the language used, and the case being free from fraud or mistake, if such language is plain and susceptible of but one meaning, that meaning, even in cases of contracts regarding life insurance, must control, although a forfeiture should be the result.