#### Julia K. Simpson, Respondent, Appellant, *v.*The Trust Company of America, as Executor of and Trustee under the Last Will and Testament of Simon M. Simpson, Deceased, Defendant, Impleaded with Isaac Simpson and Others, Appellants, Respondents.

First Department,

December 11, 1908.

Will construed — illegal suspension of absolute ownership — rules of construction — when whole will void.

A will speaks as of the time of the testator’s death and the question as to whether there is an illegal suspension of the absolute ownership of personal property must be determined as of that date, not by events which happened afterwards.

Where a testator placed one-third of his estate in trust for the benpfit of his wife for life, at her death the portion so set apart to be added in equal proportions “ to the parts or shares of my brothers and my sister me surviving ” and directed that the remaining two-thirds of the estate should be divided into as many parts as there were brothers or sisters surviving or dead leaving issue, the portions of the surviving brothers and sisters to be held in trust to pay the income to them for life and at the death of either brother or sister his or her part to be added to the share of the survivor, and on the death of the last survivor, the whole principal to be paid to a nephew and niece named, he made an "unlawful suspension of the absolute ownership of one-sixth of the estate, for, as to such one-sixth, three lives, to wit, that of the widow, the brother and the sister, must intervene before the principal can be paid to the remaindermen.

*201Such construction will be given, as, otherwise, there would be no one to take the one-sixth part upon the death of the brother or sister, and a will will not be so construed as to result even in partial intestacy if a different construction be permissible.

The invalidity of the provision as to the disposition of the wife’s share at her death destroys and invalidates the whole will.

Cross-appeals by the plaintiff, Julia K. Simpson, and by the defendants, Isaac Simpson and others, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 18th day of June, 1908, upon the decision of the court rendered after a trial at the New York Special Term.

*S. Livingston Samuels,*for the plaintiff.

*Henry Wollman,*for the defendants Isaac Simpson and others.

Scott, J.:

This appeal presents for consideration the attempted testamentary disposition of his property by Simon M. Simpson. The testator at the time he made his will held an endowment life insurance policy, and as he could not then foretell whether it would fall due and be collected during his lifetime so that the proceeds thereof would constitute a part of his estate, or would become due upon his death and be paid to his wife as the beneficiary named therein, he made alternative dispositions of his property. We have to consider only the attempted disposition made on the contingency that the wife would collect as beneficiary the proceeds of the policy. In that event the testator directed by the 4th clause of his will that one-third of his entire estate should be set apart and held by his executors in trust to receive the income thereof and pay it over to his wife during her life, and he directed that on her death the part so set apart for her benefit should be added in equal proportions “ to the parts or shares of my brothers and my sister me surviving.” He gave no part of the principal of his estate to his brothers and sister, but as to them provided as follows: “ I divide the remaining two-thirds part of my entire estate into a number of parts "equal to the number of my brothers and my sister living at my decease, and my brothers and my sister then dead leaving lawful issue. One of said equal parts I give to the lawful issue of each of my brothers *202and my sister then deceased *per stirpes.*I give each of the other of said equal parts to my executor in trust only and upon- the trusts to pay the net income of one of said equal parts to each of my brothers and my sister me surviving during his or her life, and on the death of any or either of my said surviving brothers or my sister to add the part or share of such deceased brothers or my sister to the shares or share of the survivors or survivor of them in equal portions, and on the death of the last survivor of my said brothers and my sister to pay over the whole of the principal thereof to my nephew Joseph S. Lichtenberg and my niece Allie Lichtenberg.”

The will, of course, speaks as of the time of the testator’s death, and whether or not it provides for an illegal suspension of the absolute ownership of the principal of the estate must be determined as of tliat date, for the rule is inflexible that the validity' of such an attempted disposition must be determined by the possibilities as they appear at that time, and not by the event as it may afterwards happen. *(Morton Trust Co.*v. *Sands,*322 App. Div. 691, 693.) The testator left him surviving his widow, the plaintiff herein, one brother, Isaac Simpson, and one sister, Isabella Lichtenberg, the mother of the nephew and niece named in the will. He left no children of his own, and was survived by no children of any deceased brother or sister. The serious question presented by this appeal is as to the attempted disposition of the one-third of the estate given to the executors for the benefit of the widow during her life. The direction of the will is that upon her death the amount set apart for her share be “ added in equal portions to the parts or shares of my brothers and my sister me surviving.” The use of the word *“*added ” suggests something to which an addition can be made,. Ho part or share of the estate was given to the surviving brothers or sister, but only the income from certain parts or shares. There were certain parts or shares set apart for their benefit and directed to be held by the executors, and these could properly be denominated the parts or shares “ of ” the brothers and sister. These constituted funds or portions of the estate to which additions could be made, and we think that the very obvious meaning of the testator was that upon the death of his widow that part of the estate then held by the executors for her benefit should be added in equal proportions to the parts or shares held by the executors for *203the benefit of the surviving brothers and sister. Precisely similar language is used by the testator in a later part of the same clause where he provides that upon the death of a surviving brother sister the part or share “ of ” such deceased brother or sister shall be “ added ” to the shares or share of the survivor. In this case is plain that in speaking of the part or share “ of ” a deceased brother or sister the testator referred to the fund held by the executors for such brother or sister, and that he used the same language with the same intention when describing that to which the share of the deceased brother or sister was to be added. It is suggested that in order to save the will we may so construe it as to add the share set apart for the widow, upon her death, to the income given to the surviving brothers and sister, so that they will take outright on the death of the widow the one-third of the principal in equal proportions. It is not our duty to strive by a strained construction to uphold a will, but to seek to ascertain the disposition which the testator undertook and intended to make, and having ascertained that to determine whether or not it is valid. The duty of the court is to interpret, not to construct; to construe the will, not to make a new one. *(Herzog*v. *Title Guarantee & Trust Co.,*177 N. *Y.*86; *Tilden*v. *Green, 130*id. 29, 51.) We can find nothing in this will to justify a construction which will indicate that the testator intended to make a gift absolute to any one of the one-third part of his estate upon the death of his wife. On the contrary, both his language and the general scheme of his will indicate that he intended that his widow and his surviving brothers and sister should receive only income, and that the estate should be kept intact (if he were survived by no child of a deceased brother or sister) until his widow and his surviving brothers and sister had all died, and that then the “ whole of the principal thereof ” should be paid over to his nephew and niece. We think, therefore, that the undoubted intention of the testator was that upon the death of his wife the share set apart for her benefit was to be divided between and added to the shares then held by the executor for the benefit of the surviving brothers and sister, and, thereafter, to be held as a part of their shares. Thus at least two lives may intervene before the principal of the widow’s third will become the subject of absolute disposition. As to one-half of the share set apart for the widow. *204or one-sixth of the whole estate, a third life must intervene before the principal can be paid over to the nephew and niece, and it is impossible now to say which one-sixth of the principal this will be. If upon the death of the widow one-half of the share set apart for her benefit be added to the share set apart for the benefit of each of the surviving brothers and sister, each of these shares will become augmented and the share of each of them will then consist of the amount originally set apart for his or her benefit, plus one-half of the share originally set apart for the widow, and the augmented share will become subject to the provision that “on the death of any or either of my said surviving brothers or my sister ” it shall be the duty of the executor “ to add the part or share of such deceased brothers or my sister to the shares or share of the survivors or survivor of them in equal portions” to the end that on the death of the last survivor of said brothers or sister the whole principal shall be paid over to the nephew and niece. If the true construction of the will be, as we consider that it is, that as to the share of the estate set apart for the widow, it is to be held by the executor in trust during her lifetime, and after her death it is to be held as to one-half thereof during the lifetime of the surviving brother, and as to one-half during the lifetime of the surviving sister, and that one of said halves is further to be held, upon the death of either the brother or the sister, during the lifetime of the survivor of them, there is a manifestly illegal suspension of the absolute ownership of one-sixth of the estate. It is urgently argued on behalf of the appellants that it is unnecessary and improper to apply the cross remainders provided by the will as between the surviving brother and sister, to Che share originally set apart for the wife, and directed at her death to be added to the shares set apart for the brother and sister, and it is insisted that the language of the will will be satisfied if the provision for cross remainders be limited to the shares originally set aside for the surviving brothers and sister. A number of well-known cases are cited in support of this contention. *(Beatty*v. *Godwin,*127 App. Div. 98 ; *Corse*v. *Chapman,*153 N. Y. 466; *Everitt*v. Everitt, 29 id. 39; *Vanderpoel*v. *Loew,*112 id. 167.) All of these cases however, are to be distinguished from the present because there was in each a provision whereby the accrued share would vest abso*205lutely in some one upon the death of the first or second life tenant. In the present case no such provision is to be found. If the one-sixth to be added to the respective shares of the surviving brother and sister are not to be subjected'to the provision for cross remainders applicable to the shares originally set apart for them, there will result intestacy on the death of whoever first dies, of the brother and sister, as to the one-sixtli added to his or her share on the death of the widow, for the will contains no provision for the vesting of that one-sixth share in any one upon the death of the brother or sister who first dies. There is always a presumption that the testator did not contemplate intestacy, and .a construction that will result in even partial intestacy is not to be adopted, if a different construction is permissible. *(Matter of*Miner, 146 N. Y. 121, 131; *Johnson*v. *Brasington,*156 id. 181, 187; *Matter of Hammond, 74*App. Div. 547, 551; *Ward*v. *Stanard,*82 id. 386, 389.) To avoid such a result, and for the purpose of carrying out the obvious will of the testator, the courts do not hesitate to imply cross remainders, even of accretions to funds set apart for life tenants, and notwithstanding that such implication will result in destroying the trusts attempted to be created. *(Purdy*v. Hayt, 92 N. Y. 446; *Dana*v. *Murray,*122 id. 604.)

We entertain no doubt that it was the intention of the testator that his whole estate, including the share set apart for his wife» should be retained by the executor until the death of the last sur. vivor of his surviving brother and sister, and then and only then be paid over to the nephew and niece. As to one-sixth of the estate, this created an illegal suspension of the absolute ownership. It is further argued by the appellants that even if, as to a portion of the estate, its disposition is found to be illegal and void, still that the remainder may be preserved. This assumes that the 5th clause, whereby, in case of the death of all of the testator’s brothers and sister in the lifetime of the wife, the whole estate is given to the executor for the life of the wife, applies only to the case of the death of all the brothers and the sister during the lifetime of the testator, and does not apply to the case of their death after that of the testator, but before that of his widow. We do not consider it necessary to consider that question, because we are of the opinion that the invalidity of the provision as to the disposition of the share *206set apart for the wife so far disturbs and destroys the whole scheme of the will as to affect all its provisions and render it wholly invalid. It is evident that the purpose of making due provision for his widow was uppermost in the mind of the testator. If his intestacy be found to relate only to the provision attempted to be made for her, an important object which he sought to attain will be defeated. To permit the other provisions of the will to stand would result in a disposition of the estate quite different from that which the testator intended.

It follows that the judgment appealed from must be affirmed, but, since there are cross-appeals, without costs in this court to either party.

Patterson, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.

Judgment affirmed, without costs. Settle order on notice.