| NY | Jan 19, 1915
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *572 The judgment of the Special Term so far as it relates to the account of the executrix is affirmed by the Appellate Division. We have examined the record relating to the account and find no reason for changing the judgments entered so far as they adjudge, determine and settle the account of the executrix.
The fact of making a will raises a very strong presumption *573
against an expectation or desire on the part of the testator of leaving a portion of his estate undisposed of by his will. (Schult v. Moll,
We do not agree with the Special Term and the Appellate Division in construing the life estates of the daughters in the balance of the testator's property as terminable at the death of the daughters severally. The gift is "during their [the daughters] natural lives and then to my [his] legal descendants." We think from the language used by the testator in his will that he intended to divide the balance of his property equally between his daughters for life with cross-remainders and upon the death of the survivor of the daughters to the testator's legaldescendants as a class at the death of such survivor "if any there shall be, but if there should be none, then to Theodore De Land or his children." If the testator intended a vesting of his estate in his legal descendants at his death subject to the life estates, he must have known that in reasonable probability his daughters to whom the life estates were given would outlive him and become vested with his estate, for if both were living at his death they would be his legal descendants. In such case the daughters by the will would be given both the life estates and the remainder. This was clearly not the intention of the testator. When the intention of *574
testator is ascertained it will control the construction to be given to his will. (Cammann v. Bailey,
The testator refers in his will to his legal descendants "if any there should be" and not to the legal descendants of hisdaughters or either of them. If the principal of the estate did not vest in the testator's descendants at his death then, unless it was the intention of the testator to give to each of his daughters a life estate in an equal part of his residuary estate with cross-remainders, upon the death of one of the daughters the property theretofore held in trust for her would necessarily pass absolutely to the other daughter in whole or in part as the sole or as one of the legal descendants of the testator. If the testator intended a vesting and distribution of the part of his estate held for the benefit of such daughter in severalty he must have known that one daughter in all reasonable probability would survive the other and that the share held in trust for the one first dying would, as we have said, pass absolutely to the survivor or to the surviving daughter and the descendants of the deceased daughter. (Decedent Estate Law, Cons. Laws, ch. 13, sections 82, 83.)
A careful study of the intention of the testator, as shown by his will, leads us to the conclusion that he intended to dispose of all of his property by his will; that all of his property should be held until the death of his daughters and the survivor of them, and that at such time it should become the absolute property of the legal descendants of the testator, "if any there shall be, but if there should be none then to Theodore De Land or his children." (Purdy v. Hayt,
The judgment of the Appellate Division should be modified, as provided by this opinion, and as so modified affirmed, without costs to either party.
WILLARD BARTLETT, Ch. J., COLLIN, CUDDEBACK, MILLER and CARDOZO, JJ., concur; HISCOCK, J., absent.
Judgment accordingly. *575