In Re the Judicial Settlement of the Accounts of Allen

Andrews, Ch. J. The devise of the residuary estate to the sisters and to the children of the brother of the testator, in the seventh provision of the will, was contingent upon the death of the father and mother of the testator before the death of his widow. It was only upon the happening of both of these events before her death that the devise to them was to take effect. The father’and mother both died after the testator’s death and before the death of his widow, and she having subsequently died the main question is whether Henry Milks, the son of the testator’s deceased sister Amanda, who died before the will was made, is entitled to share in the residue. The material words of the seventh provision are, “ shall descend to my sisters, and their heirs and assigns, and to the children of my deceased brother, and their heirs and assigns. The children of any of my sisters or of my brother are only to receive the same share that my brother or sisters would receive if they were living at the decease of my said wife.” This is the case of a devise to a class of persons consisting of the sisters of the testator.and the children of his deceased brother, and it is the general rule of construction that a future and contingent devise or bequest to a class takes effect on the happening of the contingency on which the limitation depends only in favor of those objects Avho at that time come within the description. (Doe, L. of Stewart, v. Sheffield, 13 East, 526; 1 Jarman on Wills [5th ed.], 341; Goebel v. Wolf, 113 N. Y. 411.) The only words of direct devise in the clause quoted are contained in the first paragraph, and if that stood alone, there could be no reasonable doubt that the son of the testator’s deceased sister Amanda was not included. The words “ to my sisters and their heirs and assigns and to the children of my deceased *248 brother and their heirs and assigns,” by natural construction embraced only the testator’s living sisters and the children of his deceased brother. The words “ and their heirs ” are words of inheritance inserted for greater precaution to define the extent of the estate devised, and not to qualify the interest of the devisees. In other words, they are terms of limitation and not of purchase. (Thurber v. Chambers, 66 N. Y. 42.) The second paragraph above quoted is relied upon as extending the classes described in the first paragraph, so as to embrace the son of the testator’s deceased sister Amanda. It is to be observed that if the testator had intended that the son of Amanda should share in the residue, it was a very simple matter to have so declared, as he had done in respect to the children of his deceased brother. He had not overlooked the fact that his deceased sister Amanda had a son living. He gave a legacy to his grandnephew, the son of Henry Milks, and direct legacies to his other nephews and nieces. The apparent purpose of the second paragraph of the seventh provision of the will above quoted was to provide for the case of the death of any of his sisters, devisees under the first paragraph, intermediate his death and the vesting of the devise, by substituting their children in place of the deceased parent, and to declare that children entitled to take should take per stirpes. It may be possible that the testator’s nephew, Henry Milks, is, by this construction of the will, excluded contrary to the testator’s intention. But the language of the will does not include him among the objects of the testator’s bounty, and no intention to include him can be inferred from any circumstances in the case. All the persons in interest are collateral relatives, and a choice by a testator between collateral relatives is not repugnant to natural instincts to any such extent as in the case of immediate lineal descendants.' We concur in the view of the General Term as to the true construction of the seventh provision of the will. Nor was there any error in the decree of the surrogate adjudging that the income of one-half of the estate accru *249 ing between the remarriage of testator’s widow and her death, fell into the residue. This part of the income was undisposed of and the rule is now the same as respects devises and bequests, that any part of the estate not legally disposed of becomes a part of the residuary estate and passes under a residuary clause embracing both real and personal property, in the absence of a contrary intention found in the will. ( Young's v. Young’s, 45 N. Y. 254; Cruikshank v. Home for the Friendless, 113 id. 337.) These views lead to an affirmance of the judgment. All concur, except Haight, J., not sitting. Judgment affirmed.