#### In the Matter of the Final Judicial Settlement of the Accounts of Lewis S. Wagman, as Executor, etc., of Rachel Wagman, Deceased, Respondent. John H. Raynor, as Executor, etc., of Sarah Wagman Raynor, Deceased, Appellant.

Third Department,

July 1, 1914.

Will construed — direction that residuary legatees see that annuity is paid — costs.

Where a testator directs that a beneficiary shall be paid a certain sum of money “ at the end of each year and during her natural life,” and then provides that a gift of the income of the residuary estate is made upon the express condition that the life tenants pay the “ foregoing legacies,” the same obligation being imposed upon the remaindermen, the testator did not intend the residuary legatees to pay said annuity personally, but merely intended to admonish them to see that it was paid. Hence, no forfeiture of the rights of the remaindermen can be based upon the ground that they, personally, did not pay the annuity, if in fact it has been paid from the proceeds of the estate.

Costs of an action to construe said will imposed upon the executor personally.

Appeal by John H. Raynor, as executor, etc., from a decree of the Surrogate’s Court of the county of Saratoga, entered in the office of said surrogate on the 15th day of July, 1913, judicially settling the accounts of Lewis S. Wagman, as executor, etc., of Rachel Wagman, deceased, and construing her will, and also an appeal from an order of said Surrogate’s Court, entered therein on the same day, denying appellant’s *128motion to compel the accounting executor to file a formal inventory.

*Jesse Stiles,*for the appellant.

*Corliss Sheldon,*for the respondent.

Woodward, J.:

The question of importance in this appeal is the proper construction to be placed upon the last will and testament of Eachel Wagman, deceased, it being the contention of the appellant, as the executor of his wife’s last will and testament, that there has been a forfeiture on the part of the residuary legatees under the will of Eachel Wagman which would operate to increase the estate in his control. The learned surrogate (81 Misc. Rep. 469) has reached a conclusion contrary to this contention, and appeal comes to this court.

The will in question provides that a cousin of the decedent, Laura A. Losee, shall be paid the sum of $20 at the end of each year and during her natural life; that a sister-in-law, Mora Wagman, shall have $200, “to be paid at the end of two years after my decease, and out of the principal sum of my estate.” This latter bequest has been paid, and no question arises in respect thereto. The will then provides: “I will and bequeath unto my sister, Sarah Wagman, one-half the use and income of all my real estate, and lands wherever situated at the time of my decease, also one-half the use of all my personal property including notes, bonds, mortgages, &c., during her natural life.” A like provision is made for her brother, Lewis S. Wagman, and then in a separate clause it is provided: “ But this devise and legacy to my sister, Sarah Wagman, and to my brother, Lewis S. Wagman, is made upon the express condition that they pay each of the foregoing legacies.” Obviously, as it is provided that the legacy of $200 to the sister-in-law is to be “paid at the end of two years after my decease, *and out of the principal sum of my*estate,” it was not the intention of the testatrix that the bequests of the life use to her sister and brother should be conditioned upon their personally paying the $20 annually to the cousin, or the $200 to the sister-in-law. It was rather an admonition to the bene*129ficiaries for life that they should see to it that these small bequests were paid. Being merely life tenants, neither of these persons had any power to pay the §200 “ out of the principal sum of my estate,” and the language is to be understood not as limiting the gift but as imposing a duty upon them to see that the sums were paid, and this has been the practical construction placed upon the will by all the parties in interest, until after the death of Sarah Wagman, who subsequently married and whose husband is the appellant here.

Then follows the 6th clause of the will, and it is upon this that the appellant relies. This provision is as follows: “ I will and request that after the death of my sister, Sarah Wagman, and my brother, Lewis S. Wagman, that my property of whatever nature be divided, share and share alike, between my two brothers, Nicholas Wagman and John Wagman. But this devise and legacy to my two brothers, Nicholas and John Wagman, is made upon the express conditions that they pay each of the foregoing legacies.” It is conceded that neither John nor Nicholas Wagman has personally paid any of the foregoing legacies, and the appellant urges that they have thereby forfeited the bequest made to them.

There is no question that the legacies have in fact been paid to the parties mentioned; that Sarah Wagman Raynor duly received and acknowledged having received one-half of the income up to a short time before her death, and that the executors are now ready, willing and able to pay over to her estate the amount due down to her death, but the appellant insists that these legacies not having been personally paid by the residuary legatees there has been a forfeiture, a contention which is only consistent with the theory that the greater is contained within the lesser. The will is not drawn with great accuracy of expression, but it is clear from what preceded the 6th clause that the testatrix did not use the language <c But this devise and legacy * * * is made upon the express conditions that they pay each of the foregoing legacies” with any intention of making it a condition precedent that the legacies should be paid by the parties personally. The one of twenty dollars, u to be paid at the end of each and every *130year after my decease and during her natural life,” could only be paid as the years came around, and it might extend for years after the vesting of the beneficial interest in the remaindermen, and it is inconsistent with the general policy of the law to make the title to property rest upon such a condition. There was a clear intent to give the estate to .Nicholas and John Wagman, subject to the legacies and the life estate in the income, and it is not to be doubted that Laura A. Losee could enforce the collection of the twenty dollars per year as against the remaindermen taking the estate, but to suggest that the appellant, the husband of Sarah Wagman, can invoke a forfeiture because the remaindermen have not personally paid this twenty dollars, is absurd. Sarah Wagman accepted the provisions of the will and took the benefits during her lifetime, and after her death she cannot come back in the form of her husband and question the title to the property from which this income was paid to her because some one else has not received her legacy from the remaindermen personally. “Whenever the will begins with an absolute gift, in order to cut it down, the latter part of the will must show as clear an intention in that direction as the prior part does ^o make it. * * * An estate once devised, or an interest intended to be given, will not be sacrificed on the ground of repugnancy, when it is possible to reconcile the provisions supposed to be in conflict.” *(Goodwin*v. *Coddington,*154 N. Y. 283, 286, and authorities there cited; *Trask*v. *Sturges,*170 id. 482, 492.) Here the fair construction of the language, read in connection with the entire will, is that the gifts are made upon the condition that the legacies shall be paid; that is, that the beneficiaries shall accept the terms of the will, without contest, and permit the payments to be made. It is impossible to intelligently read this will and to read into it an intention on the part of the testatrix that there shall be a forfeiture of the gifts made to the remaindermen for the benefit of the estate of Sarah Wagman. The intent was to give her a life use of one-half of the income, and upon her death her rights in the estate ended absolutely. She was not charged with any duty to Laura A. Losee after her death, or at any time; she was merely required, as a condition of receiving her life *131income, to permit the payment of twenty dollars per year out of the estate. To give the will the construction contended for by the appellant it was necessary not only that the remainder-men should personally pay this twenty dollars but that the beneficiaries of the life estates should also pay the twenty dollars — a manifest- absurdity under the scheme of the will.

The learned surrogate has, we believe, properly imposed the costs upon the appellant personally, and the decree should be affirmed, with costs.

Decree unanimously affirmed, with costs.