and any unexpended income, and in case of his death before he shall have reached his thirtieth year of age then to pay the principal and any accumulation of income to the next of kin of said Ambrose Morrison McGregor; And unto Ed. L. Barber, I give the sum of Sixty-five hundred dollars as a further legacy, and if he shall have died leaving issue, then the same shall be paid to such issue; and unto Adelaide Louise Barber, I give a further legacy of sixty-five hundred dollars if then living, and if she shall have died leaving issue then the same to be paid to such issue then living if any;

And unto James McCrosky, if then living at the time of such division of such funds, then I give a further legacy of Twenty-five hundred dollars."

"Fourteenth :

If after paying the additional legacies, at the termination of the trusts, as provided and directed by me, in the Twelfth paragraph of my will, there remain any balance and funds, over and above the sums required to meet, pay and discharge the said legacies, and the bequests and the trust provided for Ambrose Morrison McGregor, then such balances and surplus of such funds shall be paid and belong to my residuary estate, and pass thereafter according to the provisions hereinafter in respect to the residue of my estate."

"Sixteenth:

"All the rest, residue and remainder (of) my property and estate, both real and personal, of every name and nature and wherever situated, I do hereby give, devise and bequeath unto my said wife Tootie B. McGregor, if living at the time of my decease; and in the event of the death of my wife prior to my decease, then I give, devise and bequeath said rest, residue and remainder of all my property and estate real and personal to my said son Bradford B. McGregor, and if he shall have died, also

prior to my decease, leaving issue living at the time of my decease, then I give, devise and bequeath the same to such issue of my said son then living if any, but if both he, my said son Bradford and my said wife Tootie B. McGregor, shall have died prior to my decease, and my said son Bradford shall leave no issue, living at the time of my decease, then I give, devise and bequeath all the said rest, residue and remainder of my property and estate, real and personal, aforesaid, unto my heirs at law and next of kin, living at the time of my decease." The 3d paragraph of the will, to which reference is made in the 12th, is reproduced:

"Third:

"To each of my three sisters and two brothers, who may be living at the time of my decease, I give and bequeath the sum of Two Thousand Five Hundred Dollars, the issue of any deceased brother or sister of mine to take the share to which such deceased brother or sister of mine would have been entitled under this provision of my will if living at the time of my decease, and unto each of my nieces and nephews, the children of my said brothers and sisters, I give and bequeath the sum of One Thousand Dollars, and in case either of them shall have died leaving issue, then the issue of any of them so dying to receive the share the parent would have received if living at the time of my decease."

The questions presented for solution are:

1. Should the surplus remaining after the payment of the particular legacies mentioned in the 12th paragraph be paid to the executors of Tootie B. Terry, or does such surplus pass to the living brothers and sisters and the issue of deceased brothers and sisters of testator? The trustees contend and the trial court held that the former alternative presents the proper construction.

2. Should each legacy be paid in full from each trust, or

should such legacies be paid in the amount of one-half from one trust and one-half from the other trust? The trustees contend and the trial court held that the latter alternative presents the proper construction.

3. Where legatees have died leaving issue, do such issue take per capita or per stirpes? The trustees contend and the trial court held that such issue take per capita.

We approve the decision of the learned trial court in the three instances. As to the second question we are content to say that in the words used by the testator there is no foundation for the claim that the demonstrative legacies should be duplicated. He made a precise fixation of the sum of his benefaction. To support our affirmance of the learned trial court's decision of the third question it is sufficient to cite Schmidt v. Jewett (195 N. Y. 486); Soper v. Brown (136 id. 244). In recording our affirmance of the learned trial court's decision on the first question a statement may be desirable. The construction of the trial court did not overstep the bounds of interpretation and invade the domain of will making. The construction. gave effect to the intent of the testator, plainly and unequivocally expressed; the intent not being in contravention of a statute or of public policy. It favored the vesting of the remainder. It avoided intestacy as to the surplus of the trust fund. The result has the approval of authority. (Cammann v. Bailey, 210 N. Y. 19, 30; Salter v. Drowne, 205 id. 204, 212; Herzog v. Title Guarantee & Trust Co., 177 id. 86, 92; Haug v. Schumacher, 166 id. 506, 513.) By the 14th clause it is definitely provided that the surplus of the trust fund created by the 12th clause, over and above the amounts of the legacies to collateral relatives, shall be paid and belong to my residuary estate, and pass thereafter according to the provisions hereinafter in respect to the residue of my estate." The meaning of these words is plain. The collateral relatives

do not assert that this surplus was not disposed of under the

residuary clause. Their contention is that they are the residuary legatees. By the 16th or residuary clause of his will the testator gives all of his residuary estate," of every name and nature," to his widow "if living at the time of my decease." The collateral relatives are not to participate in the residuary estate if the widow or his son or the issue of his son are living at the time of testator's death. The widow and the son lived after him. The provisions of the residuary clause are substitutional, one person or class being substituted for another. The determinative event in each case is the death of the testator, none other being expressed or implied. Each person or

class takes all or none of the residue. It is not convincing to suggest that the testator must have meant something other than his words plainly import upon the assumption that it is an incongruity intolerable in law for the life beneficiary of a trust, the funds of which by the terms of the will and codicil may be invested in securities of fluctuating value, to have a vested remainder in the surplus of the corpus of the trust fund after the payment of demonstrative legacies large in amount to legatees uncertain in number. (Doane v. Mercantile Trust Co., 160 N. Y. 494; Riker v. Cornwell, 113 id. 115, 127; Brown v. Richter, 25 App. Div. 239; Matter of Asch, 75 id. 486, 495; Connolly v. Connolly, 122 id. 492, 495.)

The cases upon which the collateral relatives rely are distinguishable because of the peculiar language of the wills involved, and the application of a rule inapplicable in the case at bar.

In Delaney v. McCormick (25 Hun, 574; affd., 88 N. Y. 174) the will contained no words of gift in relation to the property in question, and the court applied the rule that where there is no language importing a gift except in the direction to convert real estate into money and then make distribution, time is annexed to the substance of the gift and the vesting is postponed.

In Salter v. Drowne (supra, 215) the court's decision is

epitomized in this paragraph: "If, instead of holding as we do in this case that the intent of the testatrix as shown by her will was to postpone any possible vesting of the corpus of the trusts until the death of her daughter, we were in doubt about her intention, the rule to be applied in construing the will in . this State is that where a gift arises from a direction to divide or convey the trust property among a specified class of persons and such division or conveyance is contingent and dependent upon the happening of one or more uncertain events the gift does not vest until the time for distribution or conveyance arises."

In the 10th clause of the will before us, when the testator intended to attach a future condition or contingency to the substance of the gift, he was reasonably and substantially accurate in the expression of that intention. The clause reads:

"To the United States Trust Company of New York, I give the proceeds of One hundred and twenty-five shares of Standard Oil Certificates, to have and to hold, in trust, to invest and re-invest, to receive the interest, income and profits, and pay the same to my said son, Bradford B. McGregor, and to and for the use and benefit of my said son Bradford B. McGregor, for and during his natural life, and upon his decease, to pay over the principal and any unexpended income to the issue of my said son Bradford, and in the event of his death leaving no issue, then to pay the same to my next of kin then living." (Salter v. Drowne, supra, 210.)

The learned counsel for the collateral relatives suggests that "the Fourteenth paragraph was an afterthought, inserted after the Will had been drafted; and, because the person who drew this Will did not in the Twelfth paragraph, as in the Tenth and Eleventh paragraphs, go on and make a complete disposition of the corpus of the Trust fund, but attempted to dispose of it by making its ultimate disposition pass under the residuary clause following," etc.