Humphrey v. Winship

Hardin, J.: Full effect should be given to all the language used by the testator, and that construction is preferred, and more reasonable, which gives significance to all the language used. Respondent’s construction renders useless the words “ in the event of the death of the husband of either of the said two daughters * * he shall pay over * * or transfer * * to her personally.” Whereas the construction contended for by the appellant impregnates those words with the intent on the part of the testator, that in the event of the death of the husband living at the time the [35] will was made, the daughter should receive the body of the bequest, instead of merely the income thereof. . Such construction is favored by the authorities. (Lovett v. Gillender, 35 N. Y., 619; Carter v. Hunt, 40 Barb., 89; Arcularius v. Geisenhainer, 3 Bradford, 64.) Testator referred to the marriage existing between the daughter and.her husband living at the time the will was drawn, and in the use of the words “ death of the husband of either,” etc., to the then husband. This language referred to an actually existing state of facts, known to him when the will was prepared. (Gold v.Judson, 21 Conn., 616; Morse v. Mason, 11 Allen, 36; Quinn v. Hardenbrook, 54 N. Y., 83; Wetmore v. Parker, 52 id., 450.) Appellant was entitled to have paid or transferred to her the .body of her share, and not simply the income thereof; it vested on the death of her husband. • (Robert v. Corning, 15 Weekly Digest, 79.) Judgment should he reversed, and judgment ordered in accordance with this opinion for the appellant, with costs of the appeal payable out of the fund. Smith, P. J., and Haight, J., concurred. Judgment reversed and judgment ordered in accordance with the opinion, with' costs of the action and of this appeal, payable out of the estate.