#### George Tyndall and Others, by Georgianna A. Tyndall, Their Guardian ad Litem, Appellants, v. Minnie Fleming and Harry S. Fleming, Respondents, Impleaded with The American Agricultural Chemical Company, Defendant.

Second Department,

January 24, 1908.

Will construed — conditional fee — construction of qualifying words — ejectment — burden of proof.

Under a will devising lands to the testator’s daughter, her heirs, executors, administrators and assigns forever, providing, however, that- should the daughter die without lawful issue her surviving, the lands were to go to the testator’s nephews and such children of his sister as might be living at the time of the death of said daughter, the daughter took a fee vesting upon, the testator’s death, subject to being divested if she died without lawful issue ■ her surviving.

Although in general an absolute devise or bequest with other disposition in the event of the beneficiary’s death refers to death in the lifetime of the testator, the will aforesaid is not within the rule, in that the intention of the testator is made clear by the fact that if the daughter died the lands were to go to the children of a sister living at the time of the daughter’s death.

In construing a will effect should be given, if possible, to qualifying words as well as words of devise — the former are to be harmonized with the words they qualify if possible.

The burden is upon a plaintiff in ejectment to prove Ms title.

Appeal by the plaintiffs, George Tyndall and others, by their guardian ad litem, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 1st day of November, 1906, upon the decision of the court, rendered after a trial before the court without a jury at'the Kings County Trial Term, dismissing the complaint.

*John M. O'Neill,*for the appellants.

*George C.*Case, for the respondents.

Miller, J.:

This is an action in ejectment. The appeal is from a judgment • dismissing the complaint entered on the decision of the Trial Term. It involves the construction of the following clause of the will of Albert .Emmaus, who died December 4, 1858, viz.: *838
      *“Fifth.*I give, devise and bequeath all the rest, residue and remainder of my estate, hotli real and personal of what nature, kind or description soever the same may be and wheresoever the same may be situated unto Margaret Van Dyke who now resides with me and who is my daughter by Buth Van Dyke. To have and to hold the same to her and to her heirs, executors, administrators and assigns forever. But in case my said daughter Margaret should die without lawful issue her surviving, then, and in that case, I give, devise and bequeath all said rest, residue and remainder of my estate hereinabove given to said Margaret unto my nephews Stephen Wih liamson, John Emmans, Nicholas Emmans and David Emmans, my niece Margaret, wife of John I. Snedeker, my niece Sarah Fleming, wife of Joseph Fleming, and to such children of my sister Maria Napier as may be living at the time of the decease of my said daughter Margaret, to be equally divided between them share and ■ share alike, to have and to hold the same to them severally and respectively and to their several and respective heirs, executors, administrators and assigns forever.”

The plaintiffs claim under said Margaret Van Dyke, the defendants under Harry Fleming, the son of said Sarah Fleming. Margaret Van Dyke died January 13,1875, intestate and without issue. The premises in question are salt meadow lands, and were a part of and contiguous to farm lands owned and occupied in his lifetime by said Albert Emmans. In 1876 the entire premises were partitioned among the nephews and nieces of said Albert Emmans, living at the time of the decease of the said Margaret Van Dyke, each tenant in common being allotted a portion of the upland and a portion of the salt meadow. The grass has been cut on said meadow each year since 1875, and rent therefor paid to the Fleming family. Said Margaret Van Dyke was the illegitimate daughter of said Albert Emmans. She was survived by her mother, Buth Van Dyke, and the plaintiffs are the children of one of the mother’s heirs, and as such claim to own one-twenty-eiglith part of the premises in question. '

The appellants contend that upon the death of Albert Emmans, • an absolute unconditional fee vested in Margaret Van Dyke by virtue of the provisions of his will quoted *supra.*They rely upon two well-settled rules of construction, *i. e.*(a).That an estate *839given in one part of the will in clear and decisive terms "will not be taken away or cut down by any subsequent words not equally clear and decisive; ” and (b) *“*That where there is a bequest or devise to a person absolutely, and in the event of his death to another person, the contingency refers to a death during the life of the testator.”

Rules of construction' are intended to aid in determining the intention of the testator, not to defeat such intention when clearly manifested. Effect should be given, if possible, to all the language used, the qualifying words as well as the words of devise; qualifying words do not create repugnance, but are to be harmonized with the words which they qualify, and if when thus harmonized the intention is manifest, there should be' no difficulty in giving it effect. The qualifying words of the clause under consideration, if they are such, are as clear and decisive as the words of devise, hence the first rule quoted *supra*does not apply, and the question remains whether, under the second rule quoted supra, those words are words of limitation or of substitutionary devise. It may be conceded that the contingency referred to, *i. e.,*the death of Margaret, though coupled with another contingency, *i. e.,*death “ without lawful, issue her surviving,” if there were nothing else in the will to' disclose the intention of the testator, would refer to a death in the lifetime of the testator, because so the cases uniformly hold. But I think that the testator used other language clearly indicating that the contingency he had in mind was the death of Margaret at any time, for he said, “ then, and in that case, I give, devise and bequeath all said rest,, residue and remainder of my estate herein-above given to said Margaret unto my nephews * '* * , and to such children of my sister Maria Napier *as may le living at the time■ of the decease of my said daughter*Margaret.” Thus, I think, he clearly evidenced an intention to provide not for substitutionary devises but for conditional limitations to take effect upon the death of Margaret without issue her surviving. The devisees named are to take, not upon the death of the testator, but upon the death of Margaret. I think, when the entire clause is read, the testator’s intention is not in doubt, and that he intended Margaret should have a fee vesting upon his death, subject to being divested upon her death without lawful issue her surviving. While no case precisely like this lias been called to onr attention, exceptions to the *840general rule have frequently been iterated, *i. e.,*cases where a point of time is mentioned other than the death of the testator, where a life estate intervenes, or where the context of the will cléarly evidences the intent of the testator. The exceptions are not limited to the single case, stated by the appellants, where a life estate intervenes. *(Vanderzee*v. *Slingerland,*103 N. Y. 47; *Mead*v. *Maben,*131 id. 255; *Matter of Denton,*137 id. 428; *Matter of Baer,*147 id. 348.)

As the plaintiffs cannot maintain their action without proving' title, it is unnecessary to consider the' other, points urged, by them.

The judgment should be affirmed. '

■ Woodward, Jenks, Gaynor and Rich, JJ., concurred.' . - '

Judgment affirmed, with costs: