In Re the Accounting of Buechner , 226 N.Y. 440 ( 1919 )

The will of Charles F. Griffith has been construed upon the settlement of the accounts of his trustee; and by this appeal the construction becomes subject to revision here.

The testator gave to a trustee one-half of his residuary estate in trust for the use of a brother, William H. Griffith, during life, with remainder as follows: "Upon the death of my said brother, William H. Griffith, I direct my trustee to divide the said estate so held in trust into as many shares as there shall be children of my said brother William H. Griffith living, and I give, devise, and bequeath one of each of the said shares unto each of the children of my said brother William H. Griffith, absolutely and forever."

Two children of William H. Griffith were living at his death. A third child died before him. The question is whether the administratrix of the deceased child is entitled to a share of the estate. The surrogate has held that there must be a division into thirds. The Appellate Division affirmed by a divided court.

We reach a different conclusion. The will directs the trustee to divide the estate upon the death of the brother into as many shares as there shall be children of that brother "living." The decree directs him to divide it into as many shares as there are children living and dead. The two directions cannot stand together (Marsh v. Consumers' Park Brewing Co., 220 N.Y. 205,212; Mullarky v. Sullivan, 136 N.Y. 227; Low v. Harmony,72 N.Y. 408). The mandate of the will is nullified by the mandate of the decree. We are told that this result is justified by the words of gift that follow the direction to divide. At the beginning of a sentence, the testator restricts the shares to the number of living children. The argument is that at the end of the same sentence, he abandons the restriction. Nothing in the will suggests so volatile a purpose. The principle of division is not changed by the words of gift which supplement the direction to divide. They have no effect except to confirm the title of a class already unmistakably described. "One of each of the said shares," i.e., the shares apportioned to living children, is bequeathed to each child. There cannot be one share for each, unless allotment and bequest are to follow the same lines. "Futurity is annexed to the substance of the gift" (Smith v. Edwards, 88 N.Y. 92), for the only shares bequeathed are the shares produced by the allotment. This is no case for the application of the rule that between two inconsistent clauses, the later will be preferred as the expression of the final purpose. Words are never to be rejected as meaningless or repugnant if by any reasonable construction they may be made consistent and significant. Excision is a "desperate remedy" (Adams v. Massey, 184 N.Y. 62, 69). It is "only a last resort, to be availed of when all efforts to reconcile the inconsistency by construction have failed" (VanNostrand v. Moore, 52 N.Y. 12, 20). Here we perceive no conflict, and surely none that is inevitable. This is no case again for subtle distinctions between directions to pay or distribute, and words of present gift (Fulton Trust Co. v.Phillips, 218 N.Y. 573, 583; Matter of Baer, 147 N.Y. 348). Such tests may help to ascertain the membership of a class not otherwise defined. There is no need to resort to them when the testator has defined the membership himself. We think he has done so here, and limited his gift to the children living at the division. A single sentence includes the direction to divide and the gift of the thing divided. The class that is to share in the division is ascertained. The same class must share in the gift to which division is to lead. We need no canon of construction to justify that holding except, indeed, the primary one, to which all others are subordinate, that the intention of the testator is to be sought in all his words, and, when ascertained, is to prevail (Robinson v.Martin, 200 N.Y. 159, 164; Mullarky v. Sullivan, supra, pp. 230, 232).

The order of the Appellate Division and the decree of the Surrogate's Court should be reversed, with costs in all courts, and the proceeding remitted to the Surrogate's Court for the entry of a decree in accordance with this opinion.

HISCOCK, Ch. J., COLLIN, CUDDEBACK, POUND, CRANE and ANDREWS, JJ., concur.

Order reversed, etc.