it is that is to be equally divided, whether the principal of the fund or the principal and the interest.

If the testator intended the interest to be accumulated and divided with the principal at the death of his daughter Hattie, then it is a direction to accumulate not permitted by the statute, since it might cover a period beyond the minority of some or all of his grandchildren or be for persons not in being at the creation of the estate, the time of the testator's death.

From a careful reading of the whole will, I am convinced that the testator never contemplated a separate gift of the income to be derived from the investment of the proceeds of the sale of this farm from the gift of the principal itself, and only had in view the making of a gift of a lump sum which should exist at the death of Hattie, made up of the principal and the accumulations of interest. For reasons of his own he evidently intended to give the net income derived from the house and lot to his daughter Hattie during her life and to accumulate the income from the farm, or from the proceeds of the sale of it, during that period, and at her death to divide the proceeds of both places, with the accumulated income from the farm, between the children of both his daughters, who should survive Hattie, intending that his daughter Annie herself should receive nothing from his estate. Must the testator's purpose necessarily fail because he combined these two elements in one gift, or are they separable?

If so, then the gift of the income may be rejected, and it will then pass under the statute, as it accrues, to the grandchildren in existence, they being the persons presumptively entitled to the next eventual estate. The limitation of the expectant estate in the principal, if uninvolved by the direction as to the income, would be valid. And if it can be sustained, then the disposition of the income made by the statute will so nearly accomplish the intention of the testator in regard to both principal and income that practically his will is sustained; otherwise, he died intestate as to the proceeds of the sale of the farm, and the same should now be paid over to his two daughters, which he did not at all intend.

The cases of Kilpatrick v.Johnson, 15 N. Y., 322, and Barbour v. De Forest, 95 id., 13, are cases in which a void disposition of an income was rejected without disturbing the disposition made of the principal. And although there are in each of these cases separate provisions in regard to the income, there is also a gift of a fund made up of principal and income to be accumulated.

In the first case, the fund, the income of which was the subject of the controversy, was given to the executors in trust to be invested for the testator's daughter during the term of her natural life, and to pay out of interest or principal to the daughter during her life such sums as the executors might consider necessary for her support, in case of the death of her husband or his inability to support her, and at her death to divide all the principal and interest not received by the daughter among her children. The limitation of the principal after the death of the daughter to her children was held to be good, but that the direction to accumulate was bad.

In the latter case the fund was to be invested, and as much of the income as might be needed for the support of the testator's great granddaughter during her minority was to be used for that purpose. The balance of the income was to be accumulated during that period and added to the principal of the fund, the income from the aggregated fund applied to her support during her life, and at her death the fund was to be divided among her children. In this case it was held that the direction to accumulate the surplus income was void, and that the whole income belonged to the great granddaughter, but that the gift of the principal was valid.

It may be that these cases do not squarely decide the question in this case, but I think they may be regarded as controlling authority for deciding that a legacy made up in part of principal and in part of income is separable, and may be maintained as to the principal although void as to the income.

The decree in this case will therefore provide that the executors retain the fund now held by them and invest the same during the life of the testator's daughter Hattie, and pay the income, as it shall accrue, to the testator's grandchildren, then living, and at her death divide the principal among the grandchildren who shall survive her.

In the Matter of the judicial settlement of the accounts of the executors of BUEL MABEN, deceased.

(Surrogate's Court, Greene County, Filed June 10, 1889.)

"

1. WILLS-CONSTRUCTION OF-PROVISION AS TO DEATH WITHOUT ISSUE. Where there are indications in a will which tend to show a different intention on the part of the testator, the phrase "dying without issue will not be construed as meaning a death in the lifetime of testator. 2. SAME.

The will provided that if any of testator's children, except one daughter, should die without leaving child or children or heirs of the body, the share of the one so dying should go equally to the other children, "but in the manner and subject to the like limitations as the specific bequests to each of them as has been herein before provided and given.” As to the share of the excepted daughter it had been provided that on her death without leaving a will her share was to be divided among the other children. Held, that this restriction applied to a death after that of testator and the bequest to the other children being subject to like limitation the share of a child dying without issue after the death of testator went to his other children.

PROCEEDINGS for accounting involving construction of will. Hallock, Jennings & Chase and J. R. Allaben, for the executors; Manly B. Mattice, for administrator of daughter, Abigail.

SANDERSON, S.-I am asked on this accounting to make a construction of certain portions of the will of Buel Maben, deceased. The question submitted is, whether the legacy given to his daughter Abigail, now deceased, goes to her administrator or to the other children of the testator.

The first clause of the will of Buel Maben gives his household furniture to his two daughters, Diadamia and Abigail.

The second clause gives $1,000, with the musical instrument, to Diadamia

The third clause gives to one of his grandchildren $100.

The fourth clause gives all the rest of his property in trust to his executors under his will.

The fifth clause empowers his executors to sell his real estate, and to divide his estate into seven equal parts, each child, mentioned by name, to have one share.

The sixth clause provides that if his daughter Diadamia dies without leaving a will her share and interest remaining is to be divided among his other children.

The seventh clause provides that if his son Jonathan dies without leaving a will, it is discretionary with the executors whether they shall pay his share remaining to the children of Jonathan or divide it among the other children of the testator.

The eighth clause raises the question in dispute, and is here given in full: "Eighth. If any of my children, except Diadamia, shall die without leaving child or children or heirs of the body, then the share or portion of my estate so given to such deceased child shall go equally to my other children but in the manner and subject to the like limitations as the specific bequests to each of them as has been hereinbefore provided and given."

Four of testator's children were appointed executors, of whom three, viz.: Wilbur B., Alanson J. and Diadamia, qualified. The will bears date January 25, 1886.

Buel Maben died February 13, 1886, leaving him surviving seven children, none having died before he did. His will was ad mitted to probate by the surrogate of Greene county in March, 1886. At the time of testator's death three of his sons were or had been married and had children, two of his daughters were married and had children, and two of them, viz.: Diadamia and Abigail, were single. Diadamia was forty years of age and upwards, and had always lived with her parents until their respective deaths. Jonathan died in September, 1886, leaving children. His will has been proved and the executor has become a party to these proceedings. Antoinette died in July, 1888, leaving children. Abigail died in November, 1889, leaving a husband but no children or descendants. Her husband was made administrator of her estate and has become a party to these proceedings.

It is claimed by the executors of Buel Maben that Abigail having died without leaving children or heirs of her body, the share which was given her in the will goes to the other children. On the other hand, it is claimed by her administrator that the death without children referred to in the eighth clause of the will relates only to a death in the lifetime of the testator.

The court of appeals in Vanderzee v. Slingerland, 103 N. Y., 47; 2 N. Y. State Rep., 732, has stated the rule to be that where there is a devise or bequest simpliciter to one person absolutely, and in case of his death to another, the words of contingency refer to a death in the lifetime of the testator. From the time of Moore v. Lyons, 25 Wend., 119, this rule has never been questioned. But the case becomes greatly complicated when the de

vise or bequest is to one or more persons, and in case of the death of either of them without children, the devise or bequest is made to a survivor or third person. An examination of some of the leading cases in this state may lead to a better understanding of the rule which has finally been adopted by the court of appeals in devises of the character last above mentioned.

The first case of considerable importance is Anderson v. Jackson, 16 Johns., 382, decided by the court of errors. In this case the devise was to the two sons of the testator, and "if either of my said sors should depart this life without lawful issue his share or part shall go to the survivor." This was held to be a good executory devise to the survivor, on failure of issue living at the death of either of the sons.

The question debated was whether the failure of issue was an indefinite failure, or was it a failure on the death of the first son who should die.

No suggestion was made that the death referred to must occur during the lifetime of the testator. Later cases state that the

strength of this case rests on the word "survivor."

In Black v. Williams, 51 Hun, 280; 21 N. Y. State Rep., 263, where the devise was to a son to dispose of as he wishes, and if he dies without a legitimate family, then over, it was held that the death must occur during the lifetime of the testator, distinguishing this case from Anderson v. Jackson, supra, by reason of the power of absolute disposition given the son. Van Horne v. Campbell, 100 N. Y., 287, is distinguished in the same way.

In Norris v. Beyea, 13 N. Y., 275, where the language of the will is, "in case either of my four daughters shall die before having attained to the age of twenty-one years, and without lawful heirs, then I give, devise and bequeath all the estate, real and personal, of said daughter, or daughters, so dying, as aforesaid, to their surviving sisters;" the court, without remarking upon the subject of dying during minority, say, "the executory limitation is to the surviving sisters of the first named legatees; and that language has been repeatedly held in our courts to be a decisive indication that the want of issue referred to was issue living at the time of the death of the tenant of the precedent estate. Executors of Moffat v. Strong, 10 Johns., 12, 16; Anderson v. Jackson, 16 id., 382. * * By 1 R. S., 724, 22, it is enacted that where a remainder is limited to take effect on the death of any person without heir or heirs of his body, or without issue the words "heirs" or "issue" shall be construed to mean heirs or issue living at the death of the person named as ancestor; and by 1 R. S., 773, § 2, it is declared that limitations of future or contingent interests in personal property, except in one particular not material to the present question, shall be subject to the rules prescribed in reference to future estates in land."

*

In Tyson v. Blake. 22 N. Y., 558, where the testator's property was to be divided among his four daughters, "but in case one of them, Mary, should die without lawful issue, then her share was to be divided among the other three," it was held that the

legacy was good for Mary's life, and if she died without issue, the gift over was held good. Comstock, Ch. J.: "I think this would mean a definite failure of issue; that is, a failure at the time of her death, even according to common law construction of the language. But this is not important. The statute now imperatively requires that construction to be given. 1 R. S., 724, § 22; 773, si.

Except in the particulars to be hereinafter mentioned, it would be difficult to distinguish the above case in principle from the one in hand.

In Livingston v. Greene, 52 N. Y., 118, where the devise was to his children, and should any of them die and leave lawful heirs, such heirs to receive the portion their parent would have been entitled to, it was held that the substitutionary clause as to children dying and leaving issue must, in the absence of controlling circumstances, be restricted to death before testator's death.

In Nellis v. Nellis, 99 N. Y., 505, the devise was to two grandsons, and in case either of them "die without lawful issue, the survivor shall take the share and portion of the one dying." Held, that the death referred to might occur before or after the death of the testator.

In Quackenbos v. Kingsland, 102 N. Y., 128; 1 N. Y. State Rep., 175, the court construed words similar to those last above mentioned to refer to a death during the lifetime of the testator, but a part of the reasoning of the court is based upon the use of a different class of words in the residuary clause from those used in clauses giving general legacies, indicating a different intention in the former from what it is in the latter case.

It would be difficult in the form of the words used for gifts ever to reconcile the various decisions upon this subject. There is one test, however, that courts almost invariably apply in ascertaining the meaning of a will, and that is the intention of the testator. This is said to be the "polar star" to guide the judges in the determination of the construction of a will. If the intention of the testator can be gathered from the instrument itself and from surrounding circumstances the rule is unhesitatingly applied. So in this class of cases the question is did the testator intend, in whatever way he expressed in words the gift over on the death of the first taker without children or issue, to provide for lapsed leg. acies, or did he intend to give a new direction to his legacies if the contingency referred to should happen? This is the very seat and centre of the difficulty.

In Ware v. Watson, 7 DeG., M. & G., 248, 258, Turner, L. J., uses these words: "We then come to the proviso with respect to the shares of sons dying without issue. This is a proviso which in different wills has different meanings according to the intention of the testator. It may be intended to take effect by substitution or by limitation, and if by limitation it may be intended to operate generally or may be confined to the period of testator's life." In the same case Lord Justice Knight Bruce says: N. Y. STATE REP., VOL. XXXII. 100