#### George W. Weeks, as Ex’r, etc., of Jacob Weeks, dec’d, *v.*Jacob Weeks Cornwell *et al.*
      *1*

*(Court of Appeals,*

*Filed February*1, 1887.)

1. Trust — What hot valid — R. S. 723 § 55 — When no estate vests in-trustee — §§ 56, 58, and 59.

After the disposition of part of his property a testator gave, devised and bequeathed all the rest of his estate, real and personal, that he might own at the time of his death and not by previous provisions of his will bequeathed in fee or upon trust, to his executors “to use the same as in their judgment” *633they might deem to be for the best interest of his whole estate; and in order to raise money for that purpose empowered them to mortgage the said land and after the performance of certain duties imposed to divide and pay the remainder at any time within ten years to parties then designated. *Held,*that this was an attempt to create two trusts, one to mortgage real estate, and that this not being for the benefit of legatees or to satisfy a charge upon the land was invalid by R. S. 723, § 55. That by §§ 56, 58 and 59 whether the trust was valid or invalid it did not suspend the power of alienation, nor prevent the vesting of the estate in devisees thereafter designated.

2. Devise — time op vesting op property under.

A clause in the will of the testator was in part as follows: *“*Upon the termination of the real estate trusts herein contained, where I have not hereinbefore disposed of the fee of my real estate I.do hereby give, devise and bequeath, etc. *Held,*that the “ trusts *”*referred to related to real estate of which the testator had not disposed of the fee. And that the trust attempted to be created as to that being invalid the devise took effect at once at the death of the testator.

3. Legatees — Whek term will not be taken in its strict legal MEANING.

A devise was made to each and every of the legatees of the testator an exception being made in regard to two. There was but one legatee strictly speaking, and the persons so excluded from the benefits of the devise were devisees under a previous provision. *Held,*that the word “legatees” was not intended to have its strict legal significance as one who takes personalty under a will, but that it comprised certain 17 persons, life beneficiaries under other clauses of the will, and the one remaining of the class from which the exception was made.

Appeal from an order of the general term, first department, denying a motion on behalf of plaintiffs and certain defendants for a new trial in an action for partition where interlocutory' judgment for partition was affirmed on a case and exceptions, pursuant to section 1001 Code of Civil Procedure.

Jacob Weeks died in the city of New York on the 9th day of September, 1881, leaving a widow, a will, a large amount of real and personal property, and no descendants. His widow died on the 7th day of April, 1882, and both he and she were, at death, upwards of eighty years old. In his will, which was dated May 9, 1881, he gave to his wife absolutely a large amount of real and personal property, and he devised to her. during her life four lots and the buildings erected thereon situated upon Fifth avenue in the city of New York, valued at $675,000. He devised several lots of land to his executors upon trust to collect the rents thereof during the life of his adopted son, Jacob Weeks Cornwell, and, after expending therefrom such amounts as they deemed necessary to keep the premises in good order and repair and properly insured against loss and damage by fire, to pay the remainder of such rents, when collected, to Cornwell during his life; and at his death he devised the same lots with the buildings thereon to his wife, Virginia, Cornwell, and to his children, Ida Van Cott, Clarissa Lyon and Millard Filmore Cornwell, share and share alike, the issue of such as may have died to take the share to which his, her or their parent would, if *634living, have been entitled. In sixteen other clauses of the will she devised particular parcels of land to his executors, upon similar trusts for other beneficiaries. After the death of each life beneficiary the land mentioned in each clause was devised to the wife and heirs of such beneficiary, share and share alike, or, where there was no wife, to the heirs or issue of such beneficiary ; and several of the clauses contain a provision that the issue of such life beneficiaries as shall have died shall take the parent’s share. He also devised in fee a lot of land to William Y. Parschall, and in the twenty-second and twenty-third clauses he devised in fee a lot of land to each, Ann Davey and Hugh Collins, two of his servants. By the twenty-seventh clause he authorized and directed his executors to repair or rebuild the buildings upon any of the lots of land devised to them in trust if the buildings should be partially injured or wholly destroyed by fire during the continuance of the trust, and in order to raise money for that purpose he' empowered them to mortgage the parcel or parcels of land upon which the buildings should be situated and charge the payment of such mortgage upon such parcels of land respectively. By the twenty-ninth clause he authorized and directed his executors, in case he should die leaving any building or buildings upon any of the lots of ground devised in an unfinished state, or having executed any contract or contracts for the erection of any building thereon, to finish and complete such building, and for that purpose he empowered them to mortgage the parcel of land upon which such unfinished building might be situated, or to which such contract might relate, and charge the payment of the mortgage upon such parcels of land respectively. By the thirtieth clause he authorized and directed his executors, immediately upon proving his will, or as soon thereafter as possible, to pay all taxes, assessments, mortgages or incumbrances whatsoever against his property at the time of his death, out of his personal estate, and if the personal estate should be insufficient for that purpose,, then he directed that any deficiency that might exist should be paid out of the income of Ms entire estate, except the income from the property devised for life to his wife.

By the thirty-first clause he authorized and . directed his executors to pay the annual taxes and all assessments upon the property devised to them in. trust out of the income thereof respectively, and directed his wife to pay the annual taxes and all assessments upon the property devised to her for life. He appointed his wife, Jacob Weeks Cornwell, Samuel Weeks, Jr., and George WasMngton Weeks, executors of his will. The twenty-fourth and twenty-fifth clauses of the will are as follows:

“ *-Twenty-fourth.*All the rest, residue and remainder of my estate, real and personal, that I may own at the time of my death, and not hereinbefore bequeathed in fee or upon trust, I *635give, devise, and bequeath to my said executors upon trust, to use the same as in their judgment they deem to be for the best interest of my whole estate; and, in order to raise money for that purpose, I empower them to mortgage the piece or parcel of land being the residue and remainder of my estate, and not hereinbefore disposed of in fee or upon trust, and, after paying and keeping paid all taxes and assessments upon said property, and expending such amounts as they may deem necessary to keep the said premises in good order and repair, and properly insured against loss and damage by fire, to divide and pay the remainder, at any time within ten years, to each and every of my legatees hereinbefore named, except Ann Davey and Hugh Collins, in the proportion in which his, her, or their specified legacies hereinbefore named and bequeathed bear to each other; the heirs of such legatee as may have died to take the share to which said legatee would, if living, had been entitled.

“ *Twenty-fifth.*Upon the termination of the real-estate trusts herein contained, where I have not hereinbefore disposed of the fee of my real estate, I do hereby give, devise, and bequeath the fee of said real-estate trust property to each and every of my legatees herein named, except Ann Davey and Hugh Collins, to be divided among such legatees in the proportion in which his, her, or their specific legacies hereinbefore named and bequeathed bear to each other. The heirs of such legatees as may have died to take the share to which said legatee would, if living, have heen entitled; meaning and intending by this to regard each of my legatees, except Ann Davey and Hugh Collins, a legal heir .to my estate, limited to the said trust property in the proportion named.”

The real estate put in trust for the 17 life beneficiaries was of the value of more than $1,300,000. The testator owned at his death the same real estate which he owned at the date of his will, and it is conceded that the real estate referred to and disposed of in the twenty-fourth and twenty-fifth clauses consisted of the four houses and lots in Fifth avenue which were devised to his wife for life.

This action was commenced by certain of the heirs against the legatees and devisees mentioned in the will, and other heirs of the testator, for the partition of the four houses and lots: the claim of the plaintiffs being that the disposition of them made by the will was illegal and void, and that they descended to the testator’s heirs, and were to be divided among them as if he had died intestate. The court at special term held that under the twenty-fifth clause the property was legally and effectually devised, and that the devisees in fee were the 17 persons mentioned as beneficiaries in the 17 trusts created by the will, together with Parsehall, who was a devisee of a parcel of land in fee; and by its judgment it ordered that the 4 houses and lots *636should be sold, and tbe proceeds thereof divided as to the 17 beneficiaries in proportion to the value of the specific ^real estate from which they were respectively entitled to the income, and as to Parschall in proportion to the value of the fee of the land given to him. From the judgment of the special term the plaintiffs, and some of the defendants, who were heirs of the testator,appealed to the general term, and from affirmance there to this court.

*E. Ellery Anderson, S. H. Thayer, A. H. Stoiber, F. E. Smith, William T. Gh-aff*and *B. W.*Putney, for applt. *Flamen B. Chandler, Abner C. Thomas, John C. Coffin, Martin J. Keogh*and *J. Montgomery Peters,*respt’s.

Affirming 39 Hun, 643.

Earl, J.

The appeal imposes upon us the difficult duty of construing the twenty-fourth and twenty-fifth clauses of this will. These clauses were drawn with great unskillfulness and carelessness and thus their meaning is very obscure and uncertain. As they concern and attempt to dispose of a very large amount of property, they must have been the subject of some deliberation, and the testator evidently had some meaning which is embodied, however inaptly, in the language used. What that meaning is, it is for us to ascertain if we can. If it is unascertainable, the case is the same as if no attempt had been made to express any, and the language used can have no effect. If Several meanings may be attributed to the language, each supported by equally strong reasons and probabilities, no one of them can be accepted as that which the testator meant to express. Important rights cannot be based upon mere conjecture.

But in the construction of wills as in the determination of questions of fact, and other questions of law, it is not to be expected that absolute certainty can always be attained. Upon questions of fact it is sufficient that there is a balance of evidence or probabilities in favor of one side or the other of the dispute, and upon such balance courts will rely in deciding the weightiest issues.

So in the construction of written instruments, courts will serutinize the language used, and however confused, uncertain and involved it may be, will give it that construction which has in its favor the balance of reasons and probabilities, and will act upon that. The intent of a testator may sometimes be missed but such is the infirmity of language and human judgment that such a result is sometimes unavoidable, as said in 1 Jarman, Wills, 643. “ In the construction of wills, the most unbounded indulgence has been shown to the ignorance, unskillfulness and negligence of testators. No degree of technical informality or grammatical or orthographical error, nor the most perplexing confusion in the collection of words, will deter the judicial expositor from diligently entering upon the task of eliciting from the contents *637of the instrument the intention of its author, the faintest trace of which will be sought out from every part of the will, and the whole carefully weighed together.”

The testator did not intend to die intestate as to any of his real estate, and it is, therefore, our duty, if we can, to so construe this will as to effectuate that intention. And we must also observe the rule which requires courts, if possible, so to construe any disputed provision in a will as to uphold it and make it valid, and, thus enforce the maxim *ut res magis valeat quam pereat.*

The testator made such provision for his heirs as he desired, and by upholding these clauses in his will as the courts below have construed them, we think his intention will be most nearly observed.

The only real estate trust the testator attempted to create in the twenty-fourth clause is one to mortgage the real estate therein mentioned. He devised and bequeathed all the residue of his real and personal estate to his executors upon trust, to use the same as in their judgment they deemed to be for the best interest of his whole estate. The word “ use ” is wholly inappropriate to real estate. This was the disposition to take effect at his death, and he had previously in his will given to his wife a life estate in these houses and lots, and hence, she, during her life, was entitled to the rents and profits, and for that reason the testator could not have intended that his executors were to use the houses and lots by receiving the rents and profits thereof. In writing that word the draftsman must have had in mind mainly and most prominently the personal property. That was to be used for the benefit of his whole estate, and thus it is specified how the real estate was to be used, to wit, by raising money upon it by mortgage, and that was the only use that could be made of it consistently with the prior disposition-’of it to his wife for life. What the testator intended was, to give to his executors the right to use his personal and real estate, the former in the way of the best interest of his whole estate, the latter to raise money by mortgage for the benefit of Ms whole estate; and it was the personal property and the money thus realized upon the real estate, which, after paying and keeping-paid all taxes and assessments upon the houses and lots, and expending such amounts as the executors might deem necessary to keep the houses in repair and properly insured, which, at any time within 10 years they were to divide and pay to each and every of his legatees mentioned. It is clear that the words, “ to divide and pay the remainder,” halve no reference to the real estate. The word “ pay ” is not properly used to denote the distribution or division of real estate. The testator could not have intended to give his executors the power to divide and deliver the real estate to the legatees at any time within 10 years, and thus put it in their power to interfere with his wife’s life *638estate. Then, too, if those words relate to real estate, the twenty-fifth clause providing for the final disposition of the real estate was unnecessary. The twenty-fourth clause mates a final ■disposition of the personal propert, including the balance of the *money*realized by mortgaging the real estate, and the twenty-fifth clause makes a final disposition of the real estate.

Hence there was an attempt to create two trusts by the twenty-fourth clause. One was a trust to mortgage the real estate, and that was invalid because the mortgage was- not for the benefit of legatees, or for the purpose of satisfying any charge upon the land. Rev. St., 723, § 55. But, even if valid, it would have vested no estate in the trustees, as it is provided in section 56 that “ a devise of land to executors or other trustees, to be sold or mortgaged, when the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees ; but the trust shall be valid as a power, and'the land shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power.” Section 58 provides that “where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees, but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power shall be valid as a power iii trust;” and section 59 provides that “ in every case where the trust shall be valid as a power, the lands to which the trust relates shall remain in or descend to the person otherwise entitled, subject to the execution of the trust as a power.” Hence, whether the trust attempted to be created in the twenty-fourth clause was valid or invalid, it did not suspend the power of alienation, nor prevent the vesting of the estate in the devisees mentioned in the twenty-fifth clause.

It is not important to determine whether the attempted trust can "have effect as a power, because, if it can, it still in no way interferes with or affects the disposition of the real estate made in the twenty-fifth clause. It may, however, be stated that the power has not been executed, and no party to this action claims that it ought to be, or that it is so definite in its objects that it can be. There was also an attempt to create a trust in the personal property, as above mentioned, which might last for 10 years, and which was probably expected to terminate at the death of the widow within that time. It is not important to determine whether that is a valid trust, as it in no way concerns the real estate, and all the parties to this action have assumed it to be invalid. There was nothing, therefore, in the twenty-fourth clause which could in any way interfere with or defeat the full and entire operation of the twenty-fifth clause. That provides that “ upon the termination of the real-estate trusts herein contained, where I have not hereinbefore disposed of the fee of my real estate, I do hereby give, devise, and be*639queath the fee of said real-estate trust property” to the legatees named.

It is claimed by the appellants that the words, “ real-estate trusts herein contained,” have reference to all the 18 real-estate trusts created or mentioned in the will, and hence that the real estate could not vest under that clause in the devisees mentioned until the termination of all those trusts, and so the clause is invalid for various reasons. But we think these words refer to the real-estate trusts mentioned in the preceding clause. It is true that the plural “ trusts” is used. That may have been from the inadvertence of the scrivener, or because he had in mind the four houses and lots, or the various matters to which the money realized by mortgage was to be devoted. But it is clear that the “ trusts” referred to related to real estate of which the testator had not disposed of the fee, and the real estate mentioned in the preceding clause was the only real estate of which he had not disposed of the fee. Therefore the words, “upon the termination of the real-estate trust,” can have no meaning or effect attributed to them, as the trust attempted to be created had no term, no beginning or end, and the devise of the real estate took effect at once, irpon the testator’s death, as a vested remainder, subject to the life-estate previously given to his wife.

The only remaining difficulty of a serious nature which we encounter in the construction of these clauses is to determine who were meant by the “legatees.” The devise was to “ each and every of my legatees herein named, except Ann Davey and Hugh Collins, to be divided between such legatees in the proportion in which his, her or their specific legacies hereinbefore named and bequeathed bear to each other.” Strictly speaking there were no legatees mentioned in the previous clauses of the will, except his wife. She was the only person to whom personal property was bequeathed. All the other beneficiaries were given either real estate or the income of real estate through the hands of trustees. The word “ legatees,” as used here, cannot, therefore, have its strict legal significance as one who takes personality under a will, and it was not intended that it should. It was clearly meant to include persons to whom real estate or the income of real estate had been given, and this is made evident from the fact that Ann Davey and Hugh Collins, who were devisees of real estate, were excluded from the persons Avho were called legatees. The inference is that, but for the exception, the testator supposed they would be included in the term “legatees.” It is not believed that he intended to embrace his wife among those whom he called “ legatees.” He was a very old man at fhe time of his death, past eighty years, and when he made his will could not have expected to live long, or that his aged wife, also past eighty, would long survive him. He had given to her real estate in fee valued at over $200,000, *640besides a large amount of personal property, and the income and profits of the four houses on Fifth avenue. He had made liberal provisions for several of her relatives, and it is not probable, if he intended to make further provision for her, that he would have included her with others under the general designation of “ legatees.” The legatees mentioned in the twenty-fifth clause are clearly the same persons intended to be described by the term “ legatees ” in the twenty-fourth clause, and there it is quite clear that the wife was not intended as one of the legatees, because the distribution and payment there directed to be made might be postponed ten years, and was probably intended to be postponed until after her death.

There is also a reasonable probability that he did not intend to embrace among the legatees the devisees who took the real estate in remainder after the termination of the seventeen trusts. In several of the clauses the wives of the beneficiaries are named as devisees in remainder ; in several the devisees are the issue of the heirs of the beneficiaries, and in several it is provided that the issue of any one of the deceased heirs of a remainderman shall take the share the parent would have taken if living.

It is not reasonable to suppose that the testator meant to include among the legatees only the wives and'issue of life beneficiaries specially named, and not all the remaindermen specially designated, although not specially named, including the unborn issue and heirs of life beneficiaries. If the word “ legatees ” is to have the broad signification claimed, then it would be impossible during the life of any beneficiary to ascertain who the legatees are, and, therefore, impossible to uphold the devise in the twenty-fifth clause. If such a presumption would not render the clause invalid for any other reason it would render it so impractical and indefinite that the land could not be divided and distributed undei it.

It is clear that the word “ legatees,” used in the twenty-fourth clause, was not intended to embrace the unborn issue or heirs of any life beneficiary, because the distribution and payment there directed was to be made at any time within ten years after the death of the testator, and as the same word in the twenty-fifth clause is to have the same meaning, it cannot be held to embrace the unborn heirs of a life beneficiary, and as before said, unless it can be held to embrace all of the remaindermen, it can embrace none of them. This scheme of division and distribution, attributed to the testator by the appellants, is so extraordinary, impractical and embarrassing that it should not be taken to embody the testator’s intention.

Who then was meant by the word “ legatees ? ” We think that it is reasonably probable that the testator meant the life beneficiaries and Parschall. The fact that he accepts Hugh *641Collins and Ann Davey, wlio are devisees in fee, shows that Parschall, who was a devisee in fee, was meant to be included among the legatees. The value of the real estate devised to him is but $1,800, and his proportion thereof will be quite small. The life beneficiaries were prominently in the testator’s mind, and from their relationship to him or to his wife were the conspicuous objects of his bounty. They were selected as heads of families for whom he meant to provide, giving them the income of the property during life, and then giving the property in which they had a life interest to their widows, issue and heirs. As the property was thus disposed of after their use for it would be terminated by death, he evidently regarded it as if they were the real and only objects of his benefaction, and the provision for the remaindermen was on their account. This conclusion is fortified by a consideration of the last two paragraphs of the twenty-fifth clause. Did he mean by *“*the heirs of such legatees as may have died ” the heirs of a remote remaindermen who might be wholly unknown to him ?

He clearly meant the heirs of a legatee known to him and then in his mind. When he said he meant to regard each of his legatees “ as a legal heir ” of the real estate mentioned, he probably had in mind some definite persons well known whom he meant to bring into the intimate relation with him and his estate of heirship.

We think these are reasonable views to take of the testator’s scheme, and they will render the twenty-fifth clause practical and valid, and we are, therefore, not without some hesitation and difficulty, brought to the conclusion that the court below was right in holding that the eighteen persons named, to-wit, the seventeen life beneficiaries and Parschall, were the sole devisees under the twenty-fifth clause of the will.

The next difficulty to be encountered pertains to the methods or basis for the division of the real estate between these devisees. It was to be divided in “ the proportion in which his, her or their specific legacies hereinbefore named or bequeathed bear to each other.” The words “specific legacies” have reference evidently to the specific real estate provided for each of the beneficiaries and their wives, heirs and issue. That is in each case specific. There is no difficulty in ascertaining what proportion each share of the real estate bears to all the real estate devised. The real estate provided for each beneficiary and after him for his family, is spoken of as his; and it is on the basis of the value of that real estate that his proportion of this real estate is to be ascertained, and that is the way in which it is directed to be divided by the judgment of the court below. And in that we concur. Any other basis for a division would be impractical, and should not, therefore, be adopted.

It must be conceded that much may be said against any con*642struction which the court could give to the twenty-fifth clause; but, on the whole, we think that the construction we have thus given has the most reasons to sustain it, and probably accords with the intention of the testator. We have therefore concluded that the order appealed from is right, and should be affirmed, without costs to any of the parties.

All concur, except ANDREWS, J., not voting