In re the Accounting of the Farmers' Loan & Trust Co.

These, proceedings were instituted by the Farmers’ Loan and Trust Company, as trustee under the last will and testament of Israel Corse, deceased, for a judicial settlement of its accounts and for a construction of the third clause of the testator’s will. The only question brought up for review pertains to the construction to be given to the clause of the will in question. It is as follows:

“ Third. I do give and bequeath to The Farmers’ Loan and Trust Company of FTew York City, in trust nevertheless, Ten first mortgage bonds of one thousand dollars each, and which are a lien on any division or branch road of the Chicago, Milwaukee and St. Paul Railway Company, bearing six per cent interest, for the following named persons, uses

The will was executed on January 8, 1885. The testator died on the 13th day of July, 1885, and his last will and testament was duly admitted to probate by the Surrogate’s Court of Suffolk county. The bonds specified in the third clause of the will were thereupon turned over to The Farmers’ Loan and Trust Company, which received the same as such trustee, and ever since has discharged its duties as such, and which still holds the bonds on which interest becomes due and payable on the first day of January and July in each year. Eliza L. Saunders, the life beneficiary mentioned in the clause, died November 11th, 1905, leaving a last will and testament, which has been duly admitted to q>robate in Queens county, in which letters testamentary were issued to Edwin Thorne, who is now the executor thereof. Israel Corse, Jr., is still living, but has never married or had issue. Katharine Corse ■ Saunders is also living, lias married and is now Katharine Corse Jngersoll. The surrogate held that upon the death of Israel Corse, the testator, Israel Corse, Jr., took a vested remainder in fee in the estate created by the third clause of the will, limited upon the life estate of Eliza L. Saunders, subject, however, to be defeated by a condition subsequent, viz., the death of Israel Corse, Jr., without issue at any time after the death of Eliza L. Saunders, in which event the substituted remainder given in that contingency to Katharine Corse Ingersoll will vest in possession, and that the interest accruing upon the bonds between July 1st, 1905, the date of the last payment to Eliza L. Saunders, and November 11th,

With reference to the question of the interest accruing after July 1st, 1905, up to the date of the death of the life tenant, we think it was correctly disposed of hy the learned surrogate in his decree. But with reference to the principal of the trust fund we differ with the conclusion reached by him. It may be conceded that the question presented is one of intent which must be drawn from the provisions of the will and the surrounding circumstances. But in determining the testator’s intent we must assume that he contemplated the reasonable and natural construction of the language used, rather than that which would produce an absurd and illogical result. If the surrogate is correct in his conclusion, then the testator created a trust during the lives of two persons, Eliza L. Saunders and Israel Corse, Jr., and prohibited Israel from ever taking the remainder of the estate- npon the death of Eliza or at any other time. He could not take, even upon the death of Katharine, for upon his death without issue then the grandniece Katharine, if living, or in case of her death her personal representatives would take. We find nothing in the provisions of the will that indicates an intent on the part of the testator to create a trust to continue for more than one life, that of Eliza L. Saunders. Upon her death the testator gives the principal of the fund to his namesake, Israel Corse,

The rule with reference to the construction of wills is so familiar as to require no citation of authorities. The courts may supply words, phrases, punctuation, and even transpose sentences in order to ascertain and determine the intent of the testator. Ordinarily, in providing a gift over, in case of the death without issue of a legatee, the time of death, unless a different intent appears, will be held to refer to a death occurring during the lifetime of the testator. But where the disposition of the property which is devised over in case of death •is preceded by a prior estate for life or years, then the general rule is, that the time of death refers to that which occurs during the period of the intervening estate. (Fowler v. Ingersoll, 127 N. Y. 472 ; Lyons v. Ostrander, 167 N. Y. 135 -140.) So that, unless it be held that the time of the death of Israel is intended as occurring after the demise of Eliza, it must be held that the testator intended to refer to his death as occurring within the lifetime of the life tenant. This rule suggests still another construction of the provision which maybe adopted, which reaches the same conclusion and avoids the unreasonable results which might have eventuated from the construction that prevailed below. The words “ after the demise of Eliza L. Saunders ” are found, not after the words “in the event of the death of said Israel Corse, Jr.,” but after the words “ without leaving issue,” and may well be considered to qualify and to refer to the issue of Israel. The will reads, “ without leaving issue after the demise of said Eliza L. Saunders,” and should be construed as meaning, without leaving issue, living or surviving, after Eliza’s death. In other words, it created a double contingency, in either of which the gift over, to the respondent, was to take effect. First. The death of Israel Corse without leaving issue, which, under the authorities referred to, means a death during the

The decree of the surrogate and order of the Appellate Division should be modified so as to provide that Israel Corse, Jr., on the death of Eliza L. Saunders, the life beneficiary, became the absolute owner of the trust estate, subject only to the charges of the trustee, and was entitled to the possession thereof, and as so modified affirmed, with costs of this appeal to Edwin Thorne only, as executor of Eliza L. Saunders, deceased, payable out of the principal of the trust fund.

Cullen, Ch. J., O’Brien, Edward T. Bartlett, Yarn, Hiscock, and Chase, JJ., concur.

Ordered accordingly.