In re the Judicial Settlement of the Account of Proceedings of Farmers' Loan & Trust Co.

Slater, S.

James H. Banker died February 10, 1885, leaving a will probated in Westchester county. The first and second clauses of said will, which give rise to the construction of the will upon this accounting, are as follows:

“ First. I give to the executors of this my will twenty-five thousand dollars upon trust to safely invest and keep invested the same and to receive and collect the interest and income thereof and to apply the net income realized therefrom to the use of my wife Ellen Josephine Banker during her natural life and from and after her decease to apply such net income to the use of her niece Marie Gottsberger during her remaining natural life and upon the decease of the said Marie (or of my wife if she survive the said Marie) to pay over and transfer the principal to the then living lawful issue of the said Marie (the issue of a deceased child taking per stirpes the share which such child would take if living) and if no issue of the said Marie survive her (and also my wife) to pay over and transfer such principal to my brother Edward Banker.

“ Second. All the residue of my estate and property of every kind soever and wheresoever situate of or to which I may die seized, possessed or entitled I devise and bequeath absolutely and in fee to my wife Ellen Josephine Bankér.”

The widow, Ellen Josephine Banker, and Edward Banker died in February, 1903, and Marie C. Gottsberger died in 1926, without leaving lawful issue her surviving.

There are three constructions which are contended for: First, that the remainder to Edward Banker was vested and the principal of the trust fund was, therefore, payable to his estate;

Second, that the remainder to Edward Banker was not vested, and the principal of the trust fund passes under the residuary clause to the estate of the widow, Ellen Josephine Banker;

Third, that the testator died intestate as to the principal, and it is distributable to his next of kin.

The court concludes that the second contention is the correct one, and that the trust fund passes under the residuary clause to the estate of the widow, Ellen Josephine Banker,

The primary trust was for the wife, Ellen Josephine Banker, and her niece, Marie Gottsberger. Upon their death, and not before, either the issue of Marie Gottsberger or Edward Banker were to succeed to the enjoyment of the estate. The words of gift to Edward Banker were words of substitution. (Matter of Evans, 234 N. Y. 42.) The contingent estate of Edward Banker was subject to be defeated by his death before the death of the surviving beneficiary of the trust. He took on the condition of survivorship. The substitutional gift to Edward Banker indicates an intent to make survivorship at the time set for distribution of the fund a test of right to participate therein. (Matter of Evans, supra,; Matter of Bostwick, 236 N. Y. 242; Matter of Leverich, 125 Misc. 130; Matter of Wronkow, 127 id. 679; Matter of Burdsall, 128 id. 582; affd., 221 App. Div. 756.)

In the Burdsall case the court decided that the testatrix died intestate of the estate involved for the reason that the will failed to contain a general residuary clause. However, in the instant case, the will contains a residuary clause.

It is a familiar principle that partial intestacy is to be avoided when possible, and that a residuary clause of general terms ordinarily will be construed as covering lapsed or invalid legacies and devises, and is not to be restricted to property not covered by. specific provisions unless such intent on the part of the testator is clearly to be drawn from the remainder of the will. There is nothing in the will to indicate an intent on the part of the testator in the instant case that any but the general rule should apply to his residuary clause. (Albany Hospital v. Albany Guardian Society, 214 N. Y. 435, 445; Matter of Goldmark, 186 App. Div. 447, 451; West v. West, 215 id. 285, 287.)

Under a general residuary clause, should any part of the will be declared illegal, such void bequests will fall into the residuum, and only a void bequest of the residuum passes to the next of kin. (Matter of Allen, 111 Misc. 93; affd., 202 App. Div. 810; mod. and affd., 236 N. Y. 503.)

Consequently, the corpus of the trust created by the first paragraph of the will passes to the estate of the widow, Ellen Josephine Banker, as residuary legatee and devisee under her husband’s will.

Decree may be submitted and decree of distribution in the accounting proceedings to be in accordance with this opinion.