#### Wynn A. Hulburt, as Executor, etc., of Ella V. Hulburt, Deceased, and also as Ancillary Executor with the Will Annexed, etc., of the Said Ella V. Hulburt, Deceased, Appellant, *v.*Minnie B. Southerland and Others, Respondents.

Second Department,

June 26, 1914.

Will construed — gift to wife with, contingent remainders to children or collateral relatives — failure of testator to provide for contingency ' which actually happened—when estate passes under statutes of descent and distribution.

A testator gave the use and benefit of his estate to his wife for life with power to expend the principal if necessary for her maintenance. Upon the death of the wife he gave the residue of his estate to his “ children, if any, then surviving, absolutely and in fee.” He further provided that if he died without issue, then upon the death of the wife his estate should go to collateral relatives, the defendants in this action. He also *242provided that if the collateral relatives should die before the wife and he himself die without issue, then the estate should go to the wife absolutely.

At the time of the execution of the will the testator had no children; but two children were born before his death, but they died, unmarried, intestate and without issue, during the lifetime of the wife. In an action to construe the will,

*Held,*that the contingency upon which the estate was to go to the defendants, his collateral relatives, did not happen, as the testator died leaving issue;

That, as he made no provision as to the devolution of the estate in case the children died before the widow, on her death it passed under the statutes of descent and distribution, through the deceased children, to the estate of their deceased mother as sole heir at law and next of kin, and that the defendants were not entitled to take.

Appeal by the plaintiff, Wynn A. Hulburt, as executor, etc., from a judgment of the Supreme Court’ in favor of the defendants, entered in the office of the clerk of the county of Rock-land on the 24th day of March, 1914, after a trial at the Rockland Special Term.

*Harvey De Baun,*for the appellant.

*Frank Comesky,*for the respondents.

Burr, J.:

William D. M. Smith died upon March 21, 1897, leaving a last will and testament dated April 19, 1892, duly executed and subsequently proved, by which he gave to his wife, Ella V. Smith, the “ use and benefit ” of all his estate, real and personal, during her fife, “for her maintenance and livelihood,” with the right “in the event of the income thereof being insufficient for such purposes, then to use and apply so much of the principal thereof as may be essential for such purposes in her judgment.” Thereafter the testator provided:

> “ *Third.*Upon the death of my said wife, I give, bequeath, and devise all the rest, residue and remainder of my estate' to my child or children, if any, then surviving, absolutely and in fee.

> “ *Fourth.*In the event of my dying without issue then, and upon the death of my said wife, I give, bequeath and devise all that shall then remain of my estate of whatsoever kind, as follows: The one equal half part thereof to my niece Minnie B. Southerland; one equal fourth part thereof to my sister, *243Angeline Southerland; and the one equal fourth part thereof to my sister Martha A. Smith absolutely and forever.

> *“*In the event, however of my said sisters or both of them dying before my said wife, then I give, and bequeath and devise the share or shares above given them or either of them to my said niece, Minnie B. Southerland, absolutely and should my said niece die before my said sisters or either of them then I give, bequeath and devise her share to my said sister or sisters then surviving.

> *“Fourth (sic).*In the event that my said sisters and niece shall all die before my said wife and I shall die without issue, then I bequeath and devise my estate to my said wife absolutely.”

At the time of the execution of said will testator had no children. Subsequently two children were born both of whom were living at the time of his death. Both of these children died in infancy, unmarried, intestate and without issue, and during the lifetime of his wife, one on December 14, 1897, and one on April 24, 1911. She died November 12, 1912, leaving a will by which, after making certain small bequests, she gave to Wynn A. Hulburt, whom she had married subsequently to the death of William D. M. Smith, “ the use of the remainder of my money during his life,” with remainder to Minnie B. Southerland, Lizzie Sparks and Marie Wiley.

This action is brought to obtain a construction of the will of William D. M. Smith and a determination that *“*the said defendants, Minnie B. Southerland, Angeline Southerland, Martha A. Smith and said Martha A. Smith and George B. Southerland, as such administrators with the will annexed, as aforesaid, are not entitled under said will, to any part or portion of testator’s estate.” From a judgment determining that said defendants are entitled to the estate in remainder under the will now being considered, and among other things requiring plaintiff, as executor of the last will and testament of Ella V. Hulburt, formerly Ella V. Smith, to account for the same, plaintiff appeals.

The contingency provided for in the opening sentence of the 4th paragraph of the will of William D. M. Smith did not arise. He did not die without issue. The contingency provided for in the 3d paragraph of his will did not arise. There was neither child nor children of his surviving at the date of *244Ms wife’s death. We think that counsel for respondents correctly states that “the contingencies the testator provided for didn’t happen and the contingency that happened was not provided for.” When he executed his will he had no children. When he died he had two. At the time of his death apparently he contemplated that one or both of these children might survive his wife, and he made provision therefor. He apparently did not contemplate that both might predecease her, and he made no provision therefor. In this contingency the estate in remainder was given to no one. It descended to his children as his heirs at law, and upon the death of the survivor the statute of descent and distribution then in force cast it upon the mother as the sole heir at law and next of kin. (Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], §§ 81, 85, 98, subd. 8.) “When the language used is as clear and unambiguous as it is in this case, it does not appear to me that we should evade its meaning by an endeavor to spell out a different intent on the part of the testator by resorting to the rule, to the effect that the testator did not intend to die intestate, especially when that rule has many exceptions and is only occasionally followed.” *(Matter of Disney,*190 N. Y. 128; *Eidt*v. *Eidt,*142 App. Div. 733.) If we should allow ourselves in tMs case to grope after testator’s intent it is by no means certain that it was as stated by the learned court at Special Term that “ in the event of his death, without issue surviving Ms widow (the contingency which happened), the remainder should go to the defendants ” in this case. If he died without issue that was his intent.. If he left issue who died before his wife it is clear that he intended that any estate in remainder devised to them should be defeated by such death. But where is there any indication of his intent that if he died .leaving issue and this issue died during her lifetime that should not follow which has followed, namely, that through this issue, under the laws of intestacy, his wife should become seized of his whole estate. His eldest daughter Shirley was nearly seventeen years of age when she died. There is at least a suggestion in the will of Ella V. (Smith) Hulburt that the disposition which the law now makes of his estate in remainder would have *245met Ms unqualified approval could he have looked into the future. “While courts have great latitude in giving effect to imperfectly expressed testamentary intentions, they have no right to make wills for testators.” They are without power “ to construct a will where none has in fact been made,” or “to import into a will new provisions which are designed to create a testamentary disposition wMch is neither expressed nor necessarily to be implied.” *(Dreyer*v. *Reisman,*202 N. Y. 476.)

The judgment appealed from must be reversed, upon questions of fact as well as law, and judgment directed in favor of plaintiff to the effect that the defendants named therein.are not entitled under the will of William D. M. Smith to any part or portion of his estate, with costs of the action and of this appeal. The 12th, 13th and 14th findings of fact are reversed. If plaintiff deems any additional findings of fact necessary, the order may be settled on notice.

Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred.

Judgment reversed, upon questions of fact as well as law, and judgment directed in favor of plaintiff to the effect that the defendants named therein are not entitled under the will of William D. M. Smith to any part or portion of his estate, with costs of the action and of tMs appeal. The 12th, 13th and 14th findings of fact are reversed. If plamtiff deems any additional findings of fact necessary, the order may be settled on notice.