he gives them only the use and income, permitting the principal to be drawn upon to supply any lack for ample support, and attempts to give the remainder, upon the termination of their respective lives, to other persons, either for life or in fee. There is an implied estate for life in the two sons, because the testator assumes to dispose of all the property, after their death. It is clear that the clause "and their heirs, if they have any," must mean the children of the testator's two sons. (Norris v. Beyea, 13 N. Y. 283; Sweet v. Chase, 2 N. Y. 73; Harrison v. Harrison, 36 N. Y. 543; Purdy v. Hayt, 92 N. Y. 446; Manice v. Manice, 1 Lans. 364; Everitt v. Everitt, 29 N. Y. 39.) There was no suspension of the power of alienation beyond the statutory limit, whatever construction be given to the clause in question. (1 R. S. 723, §§ 14, 15; Purdy v. Hayt, 92 N. Y. 449.) If it could be maintained that the future estates alleged to be given by implication to Alonzo's children, were contingent, and, therefore, that there was an illegal suspension of the power of alienation, this would effect only one-half of the estate, real and personal, and the other half devised and bequeathed for life to Richard, must be held, under the undisputed terms of the clause, to have passed upon the death of Richard, without heirs or children, to the remaindermen named, the appellants here. (1 R. S. 727, § 44; Campbell v. Radon, 18 N. Y. 412; Everitt v. Eceritt, 29 N. Y. 39; Purdy v. Hayt, 92 N. Y. 446; 1 R. S. 723, §§ 13, 17; Moore v. Littel, 41 N. Y. 76; Kilpatrick v. Johnson, 15 N. Y. 324; Cook v. Lowry, 95 N. Y. 103.) The claim that the will gives the grandchildren a fee by implication is without support either in law or reason, and is in fact expressly overruled by repeated decisions of the Court of Appeals. (In re Fowers, 113 N. Y. 569; Masterson v. Townshend, 123 N. Y. 461; Bradhurst v. Field, 135 N. Y. 564; Norris v. Beyea, 13 N. Y. 283; Street v. Chase, 2 N. Y. 73; Harrison v. Harrison, 36 N. Y. 543.)

Lucien L. Shedden for respondents. The surrogate has power to construe the will when necessary to determine ques

tions arising on the accounting of the executors. (Purdy v. Hayt, 92 N. Y. 446.) The intent of the testator should first be ascertained. (1 R. S. 828, § 36; 4 Kent's Comm. 535; Scott v. Guernsey, 48 N. Y. 120; Ritch v. Hawehurst, 114 N. Y. 515; In re James, 146 N. Y. 78; Schouler on Wills, $466; Redfield's Surr. Prac. 231; 4 Johns. 61; Shulters v. Johnson, 38 Barb. 80; Terpening v. Skinner, 30 Barb. 373; White v. Hicks, 33 N. Y. 383; Kalbfleisch v. Kalbfleisch, 67 N. Y. 354; Terpening v. Skinner, 29 N. Y. 508.) The law favors a construction that will not tend to disinherit an heir. (Scott v. Guernsey, 48 N. Y. 121; Vanderzee v. Slingerland, 103 N. Y. 54; Quinn v. Hardenbrook, 54 N. Y. 83; Lynes v. Townsend, 33 N. Y. 558; Greyston v. Clark, 41 Hun, 125; Cromwell v. Kirk, 1 Dem. 383; Nellis v. Nellis, 99 N. Y. 505; 46 Hun, 261; N. Y., L. & W. R. Co. v. Van Zandt, 105 N. Y. 89; Palmer v. Dunham, 52 Hun, 468.) An estate to the heirs of Richard and Alonzo is implied. (Lytle v. Bereridge, 7 Lans. 225; 58 N. Y. 592; Perrin v. Blake, 4 Burr. 2579; In re Vowers, 113 N. Y. 569; Mary v. Sawyer, 66 How. Pr. 381; Masterson v. Townshend, 123 N. Y. 462; Whitney v. Whitney, 63 Hun, 69; Bentley v. Kaufman, 12 Phila. 435; Still v. Spear, 3 Grant's Cas. 435; 1 Jarman on Wills [6th ed.], 556.) The estate given by implication to the heirs of the testator's sons is a fee and not a life estate merely. (Campbell v. Rawdon, 18 N. Y. 419; 2 R. S. 2528, § 89; 2 Washb. on Real Prop. chap. 4, § 3; Norris v. Beyea, 13 N. Y. 273; Low v. Harmony, 72 N. Y. 414; Lynes v. Townsend, 33 N. Y. 561; Newconch v. Lush, 84 Hun, 259; Taggart v. Murray, 53 N. Y. 238; Lytle v. Beveridge, 58 N. Y. 605; Peckham v. Lego, 57 Conn. 553; Cossell v. Cook, 3 S. & R. 290; Du Bois v. Ray, 35 N. Y. 162.) The heirs of the bodies of the testator's two sons (provided they were all in the first degree of descent) were to take as a class, per capita, and not per stirpes, and as the two children of Alonzo composed such class at the time. for distribution under the will they take the whole property. (In re Kimberly, 150 N. Y. 93; Manier v. Philips, 15 Abb.

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[N. C.] 123; Barber v. Cary, 11 N. Y. 401; Moore v. Littel, 41 N. Y. 66; In re Verplanck, 91 N. Y. 445; Vanderzee v. Slingerland, 103 N. Y. 47; Fowler v. Ingersoll, 127 N. Y. 472; Mead v. Maben, 131 N. Y. 255; Mullarky v. Sullivan, 136 N. Y. 227; In re Denton, 137 N. Y. 428.) Assuming that the appellants are correct in their claim that the issue of Richard and Alonzo were by the will to take per stirpes and not per capita, nevertheless, the share intended for the heirs of the body of Richard passed by inheritance to the children of Alonzo. (Smith v. Scholtz, 68 N. Y. 41; Bundy v. Bundy, 38 N. Y. 410; Taggart v. Murray, 53 N. Y. 233; Wilkes v. Lion, 2 Cow. 333; Grout v. Townsend, 2 Den. 336; Lott v. Wykoff, 2 N. Y. 355; Jackson v. Van Zandt, 12 Johns. 168; Delaney v. McCormack, SS N. Y. 174; Kelso v. Lorillard, 85 N. Y. 177; Hennessy v. Patterson, 85 N. Y. 91.) Assuming that no gift is implied to the heirs of Richard and Alonzo, then the children of Alonzo take the entire estate by inheritance. (2 Black. Comm. 175; Schettler v. Smith, 41 N. Y. 328.) Where the scheme of the will fails then the property on the death of the testator vests in his heirs, as in case of intestacy. (Rice v. Barrett, 102 N. Y. 161; Post v. Hover, 33 N. Y. 598; Savage v. Burnham, 17 N. Y. 574.) The surrogate was right in holding that the legacy to Maria Roberts had lapsed. She was a sister of the testator and died before he did. (3 R. S. 3345, § 20; Van Beuren v. Dash, 30 N. Y. 393; Vernon v. Vernon, 53 N. Y. 351; In re Wells, 113 N. Y. 396.)

W. C. Watson for respondents. The opinion of the surrogate that the $200 legacy to Maria Roberts, a sister of the decedent, who died before him, lapsed, and her heirs are not entitled to it, is right and should be affirmed by this court. (2 R. S. 66, § 52; Van Beuren v. Dash, 30 N. Y. 393; Vernon v. Vernon, 53 N. Y. 351; In re Wells, 113 N. Y. 396; Redf. Surr. Prac. 627.)

HAIGHT, J. The chief question brought up for review involves the construction of a will.

Opinion of the Court, per HAIGHT, J.

[Vol. 152.

William Moore, a widower, and resident of Clinton county, died on the 4th day of November, 1885, leaving him surviving Richard R. Moore and Alonzo S. Moore, both of whom were unmarried, his only children and heirs at law. Richard R. Moore died on the 17th day of August, 1889, unmarried and leaving no descendants. Alonzo S. Moore, the other son, married after the death of his father, and died on the 13th day of September, 1894, leaving him surviving a widow and twochildren, William L. Moore and Phebe R. Moore. William Moore left a last will and testament, which was admitted to probate on the 20th day of November, 1885, in which by the seventh clause thereof he gave to his two sons, Richard R. Moore and Alonzo S. Moore, the use and occupancy, during their lives, of all of his real and personal estate, to be equally divided between them after the payment of certain specified bequests ; and in case of the death of one of the sons, he gave to the survivor, during life, the use and occupancy of the whole of his real and personal property. He then provided as follows: "After the death of my two sons and their heirs, if they have any, I give my real and personal estate to my sister Susan Bullis, wife of Lewis Bullis; my sister Maria Roberts, wife of John Roberts; to my sister Phebe Oliver, wife of Henry Oliver, and to my brother, Amos Moore, of Plattsburg, their heirs, intending the children of my sisters and my brother to have the said real and personal property. If either of my sisters or brother should die, I give the same to their children, share and share alike."

It will be observed that he does not in direct terms give any estate to the children of his son Alonzo. At the time of his decease, Alonzo had not married. The two children that were subsequently born to him were consequently not in being at the time of the testator's death. He, however, gives his estate to his brother and sisters only after the death of his two sons and their heirs, if they have any, clearly indicating an intention that his brother and sisters should not take under the will until the death of the heirs of the sons. Had the sons died without children, the brother and sisters of the testator would

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have been their heirs. It consequently is apparent that the heirs of the sons here referred to were intended to be the heirs of their body, their lineal descendants, including the descendants of the children. If it was not the intention of the testator that his brother and sisters should take until after the death of the heirs of the sons, it would seem to follow that he intended the estate to vest in such heirs, otherwise it would remain suspended during such period. They must, therefore, be deemed to take an estate by implication. It is contended, however, that the estate created for the children is a life estate only, and that the appellants, upon the death of the testator, became vested with the estate in remainder; that, under the statute, the testator could only limit the vesting of the remainder in possession during the lives of two persons in being, and that, on the death of the two sons, the third life estate attempted to be created in their children was unlawful and void, and that the estate of the remaindermen was accelerated and took effect in possession upon the death of the longest liver of the sons. There is, however, an obstacle in the way which prevents our approving of this contention. The statute provides that "where a remainder shall be limited to take effect on the death of any person without heirs or heirs of his body, or without issue, the word heirs' or 'issue' shall be construed to mean heirs or issue living at the death of the person named as ancestor." (1 R. S. 724, § 22.) The remainder provided for in the will to the brother and sisters of the testator, as we have seen, was only to take effect after the death of his two sons and their heirs, if they have any; in other words, it was to take effect after the death of the two sons without heirs or issue, or if they have heirs or issue, it should take effect only in case such heirs or issue were not living at the death of the two sons. This appears to us to have been the intention of the testator. It gives force to each provision of the will. He intended to create a remainder in his brother and sisters after the death of his two sons in case they left no heirs, or in case their heirs had died during the life of the sons; but in case the sons left heirs of their body them sur