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Second Nat. Bank v. Weston (N. Y.)... 949
Security Trust & Life Ins. Co., Cross V.
(N. Y.)..

Seidschlag v. Town of Antioch (Ill.).
Seiler v. State (Ind. App.).
Sherman, People v. (N. Y.).

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969 101 ..1124 Shields, Marlin Firearms Co. v. (N. Y.).. 163 Sigua Iron Co. v. Brown (N. Y.)... 194 Silberstein, Gallagher v. (Mass.). 402 Simon, Napieralski v. (Ill.)... 1042 Sinclair, Steeves v. (N. Y.). .1125 Sitar, Illinois Steel Co. v. (Ill.). Slingluff v. Weaver (Ohio). Smelser v. Pugh (Ind. App.). Smith v. Bowers (N. Y.).... Smith v. State (Ind. Sup.)... Smith, Burns v. (Ind. App.). Smith, Frost Mfg. Co. v. (Ill.). Smith, Hart v. (Ind. Sup.). Smith, Moore v. (Ind. App.). Smith, People v. (N. Y.)..... Smith, People v. (Ill.).

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636

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..1016 Suburban R. Co., Village of Harlem v. (III.) .1010 Sugden v. Magnolia Metal Co. (N. Y.)....1126 Sullivan v. George Ringler & Co. (N. Y.).1126 Summerfield v. City of Chicago (Ill.)..... 490 Supreme Lodge Mut. Protection v. Gelbke (III.)

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Spitzer v. Village of Fulton (N. Y.).... Springer v. Darlington (Ill.).

Thompson v. City of Chicago (Ill.).... 392 957 Tindle v. Birkett (N. Y.).

210

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Title Guarantee & Trust Co., Rubel

v.

Springer, Leonard v. (Ill.).

299

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Springfield St. R. Co., City of Springfield

Tobin v. Tobin (Ind. App.)....

624

v. (Mass.)...

577

Todd v. Oglebay (Ind. Sup.).

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302

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Standard Brick Co., Taylor v. (Ohio). Standard Oil Co. v. City of Danville (Ill.).1110

428

Town of Antioch, Seidschlag v. (Ill.). Town of Crothersville, Pittsburg, C. a & St. L. R. Co. v. (Ind. Sup.)..

969

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State v. Aldridge (Ohio).

562

Town of Flora, Terre Haute & L. R. Co. v. (Ind. App.)..

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State v. Bagby (Ind. App.).

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State v. Beacom (Ohio).

427

State v. Cincinnati Tin & Japan Co. (Ohio) State v. Commercial Ins. Co. of New Albany (Ind. Sup.)..

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State v. Cook (Ohio).

Town of Greenwood v. State (Ind. Sup.).. 849 Town of Redkey, Wilt v. (Ind. App.). 228 Town of Windfall City, Hildrup v. (Ind. App.) Townsend, Kervan v. (N. Y.).. 567 Trask v. Little (Mass.)..

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State, Clark v. (Ind. Sup.).
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State, Malott v. (Ind. Sup.).
State, Parks v. (Ind. Sup.).
State, Seiler v. (Ind. App.).
State, Smith v. (Ind. Sup.).
State, Town of Greenwood v. (Ind. Sup.).. 849
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THE

NORTHEASTERN REPORTER.

VOLUME 64.

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Testator devised a portion of his estate in trust to his executors to pay the income to his grandson during his life, and the principal at their discretion, and, in case that he should die without issue, then on his death "to pay" said principal to W. and S., it to be divided equally between them. Held, that a contingent remainder vested in the remainder-men at the death of testator, the intent being manifest to completely dispose of the estate in favor of the beneficiary and such remainder-men, and the words to pay" being used without special reference to any technical meaning and as ordinary words of gift, so that the fund passed to the legatees and next of kin of the remainder-men on the death, subsequent to their decease, of the beneficiary without issue, and without the principal having been paid to him.

Appeal from supreme court. appellate division, Third department.

Action by De Witt Roosa, trustee under the will of Latham Cornell, against Walter C. Harrington and others. From a judgment (68 N. Y. Supp. 1147) affirming an interlocutory judgment (65 N. Y. Supp. 601) construing the will of Latham Cornell, Louisa Cornell appeals. Affirmed.

Eugene E. Sheldon, for appellant. Howard Chipp, for plaintiff respondent. Samuel Foster, for respondent Walter C. Harrington and others. Bernard & Van Wagenen, for respondent Charles W. Crispell, as executor of Charles W. Cornell, deceased.

GRAY, J. This appeal involves the construction of the will of Latham Cornell, deceased, in so far as the ultimate disposition of a share of his residuary estate is concerned. The will is short. By its first clause he appoints his son and a grandson executors, with power of sale. By the second clause he gives his wife $20,000 in lieu of dower right in the estate. By the third clause he gives to his executors, in trust, the sum of $15,000, which they are to invest for his grandson Latham Cornell Strong until he shall arrive at the age of 35 years, paying to him meanwhile the income, and "then to pay said principal sum" 64 N.E.-1

to him. In the case of his death before attaining that age he gives the said sum of $15,000 to his son William W. Cornell, to his daughter Sarah E. Harrington, and to his grandson Charles W. Cornell, the survivors or survivor of them, their or his or her heirs and assigns, forever, to be divided equally between them. By the fourth clause the residue of his estate is given "to my said son William W. Cornell, to my said daughter Sarah E. Harrington, and to my said grandson Charles W. Cornell, and to their heirs and assigns, forever, to be divided equally, share and share alike, between the said William, Sarah, and Charles," subject to provisions not material to the absoluteness of the bequest. On the same day that this will was executed he executed a codicil, which in its first clause changed the previous trust provision for his grandson Latham Strong by making the principal payable to him upon his attaining the age of 30 years, or, in the discretion of the executors, upon his earlier marriage. By the second clause of the codicil the testator provided as follows: "Instead of the legacy given to my said grandson Charles W. Cornell in and by the fourth section of said will, I hereby give, devise, and bequeath the share of my estate thereby devised and bequeathed to the said Charles W. Cornell to my said executors or the survivor of them, in trust to invest the same as in said will mentioned, and to pay over the interest or income thereof semiannually to the said Charles W. Cor nell during his natural life, or, if in their discretion they should at any time think it wise and for the best interest of said Charles so to do, to pay to him such principal; and in case they should not pay to him said principal, and the said Charles should die with out leaving issue surviving him, then to pay said principal, on his death, to my said son William W. Cornell, and my said daughter Sarah E. Harrington, to be divided equally between them; but, in case the said Charles should die leaving issue surviving him, then said principal shall go and belong to such issue."

Upon this clause of the codicil the question has arisen as to whether the testator's son William and his daughter Sarah were vested,

upon the father's death, with any estates in the share so given in trust for Charles Cornell. There survived the testator his widow, Louisa Cornell, his son William, his daughter Sarah, and the grandson Charles. William Cornell died in 1894, intestate, and leaving neither widow nor issue. Sarah had died in 1882, leaving three children, to whom by her will she had given the whole of her estate. The grandson Charles died in 1896, leaving neither widow nor issue, and by will giving his entire estate to a friend, Charles W. Crispell.

It is claimed on behalf of the widow of the testator that his son William and his daughter Sarah had acquired no vested interests in the trust estate created for Charles, for the reason that the gift to them was one to take effect only in the future, and that upon their failure to survive Charles there resulted an intestacy with respect to the principal sum which made it distributable to the widow and the next of kin of the testator. The argument, on the other hand, is that William and Sarah, upon the testator's death, took contingent interests in remainder, and that upon Charles' death it passed to the three children as the legatees of Sarah, and who are also William's heirs and next of kin. They are respondents, upon this appeal, to the claim of the testator's widow.

In construing this will the importance of discovering the intention of the testator in making a final disposition of his property is in this consideration, that, if one is clearly or sufficiently manifest, it must control, without regard to general rules of construction. When the testamentary instrument is colorless as to intention or design, then it is that rules of judicial construction are properly resorted to as aids in giving to the instrument a meaning which renders it reasonable and capable of legal effectuation. Of course, the main question in this case is whether, by the terms of the codicil, futurity was annexed to, and was of the essence of, the gift over to the testator's son and daughter of the trust estate, which he had created for the benefit of his grandson, by reason of the absence of any words of present gift to them, in the language actually used. That is to say, is it true that because, upon the death of the grandson Charles without issue, the trustees are "then to pay said principal" to the testator's son and daughter, such language must be deemed to control, as an indication that the gift to them depended upon the contingency of their survival? I do not think so. The whole will bears internal evidences of the testamentary purpose to make an equal division among the testator's three lines of descent, and to confine the possession and enjoyment of his estate to representatives in those lines. If that be true, we are not warranted in applying general rules of construction which might thwart that purpose.

These things impress my mind about this

will. Looking at the will and codicfl as one instrument, it manifests an intention to completely dispose of his residuary estate in favor of the three persons named. When he creates the trust fund of $15,000 for the benefit of his grandson Latham Strong, he gives the fund, in the event of his grandson not having received it by the terms of the gift, to his son, daughter, and grandson Charles equally. When he disposes of his residuary estate in the will, he gives it to the same three persons, his son, daughter, and grandson, equally. The codicil simply changes the gift to the grandson into a trust for his benefit, and to that extent modifies the absolute character of the residuary clause in his case. Another feature may be adverted to, not that it is at all a controlling one within the decisions, but as bearing, with others, upon the question of intention. I allude to it as illustrative of a general design which appears to me from reading these instruments. The testator gives the trust fund to the executors for the purpose of keeping it invested and paying it over, in the event that they do not exercise their discretion to pay the principal to his grandson, and that he shall die without issue surviving, not to persons who are to be ascertained at the happening of the event, but to the persons he names, to wit, his son William and his daughter Sarah.

It would seem that the use by the testator of the words, in this clause of the codicil, "to pay said principal," which are relied upon as containing the only gift to the testator's son and daughter, was without especial reference to any technical meaning, and merely was a mode of expressing his intention that they should have it in the event mentioned. This appears from the fact that in the same sentence, in providing for the case that Charles shall die leaving issue surviving him, he says that "said principal shall go and belong to such issue." His use of the words "go and belong to," in connection with the right of Charles' issue to take, seems to show that the use of the words "to pay," in connection with the contingent right of the remaindermen to take, was equivalent to the direct bequest contained in the other language; that is, that the estate belonged to the persons named, subject only to the contingency that Charles might be given the fund or that he should leave issue him surviving. The word "pay" is also used with reference to the gift to the grandson Latham Strong in the third clause of the will, and yet, in referring to this third clause, the testator in the codicil speaks of its provision as a gift or bequest. He refers to the will "in and by which I gave and bequeathed to my grandsons Latham Cornell Strong and Charles W. Cornell certain legacies as therein mentioned and set forth," and again describes the legacy to Strong as "the legacy given to him in and by the third section of the will." There fore, as it seems to me, the words "to pay"

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