PITNEY, Advisory Master.

Suit by William M. Walton and others, as surviving executors of the will of Mary L. Walton, deceased, against Samuel T. Walton and others, for a construction of the will of Elisha L. Walton, deceased. Will construed, and decree advised.

E. W. Demarest and P. F. Botzong, for William M. Walton et al. E. M. Colie, for Samuel T. Walton et al. C. A. Reed, for Robert E. Pendleton, administrator.

PITNEY, Advisory Master. This is a triangular contest between the next of kin of Elisha L. Walton, late of the county of Hudson, deceased, and the beneficiaries under the will of Mary L. Walton, who was the widow of the said Elisha L. Walton, and Robert E. Pendleton, who was the surviving husband and administrator of Caroline M. Pendleton, who was one of the children of the said Elisha L. and Mary L. Walton. Elisha L. Walton died in 1873, testate of a will. His widow, Mary L. Walton, died in 1894, testate of a will, and Caroline M. Pendleton died intestate and without issue in 1902. The contest in the cause is over a sum of $8,000 which remains after certain losses out of a sum of $10,000 in the hands of the executors of Mary L. Walton, who file this bill. The contest arises out of the two clauses in the will of Elisha L. Walton, namely, item 8 and item 15.

Item 8 is as follows: "Item 8. I give and bequeath unto my executors and the survivors and survivor of them the sum of ten thousand dollars, in trust to invest the same and keep the same invested and to pay the interest and income thereof semiannually to the sole and separate use of my daughter Caroline Matilda Walton during her natural life, and upon and immediately after her decease the said sum of ten thousand dollars shall be equally divided between her children, share and share alike; but if at the time of her decease she shall have no children her surviving, then and in such case she shall be at liberty to dispose of the said sum of ten thousand dollars by her last will and testament." The fund therein provided for was set aside and kept in the hands of the executors of Elisha L. Walton, one of whom was his widow, Mary L. Walton, andafter her death was retained by her co-executor, William M. Walton, who was also one of the executors of the will of Mary L. Walton. The fifteenth clause of the will of Elisha L. Walton is as follows: "Item 15. I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, of every name and nature whatsoever, to my beloved wife, Mary Louisa, to have and to hold the same to her and her heirs, forever."

The said Caroline M. (Walton) Pendleton not only died without issue, but she did not at any time exercise the power of appointment by will given to her by the eighth item of her father's will. The result is that the sum of money here in question did not pass to her, and her administrator took no interest therein. The cases of Downey v. Borden, 36 N. J. Law, 460, and Pratt v. Douglas, 38 N. J. Eq. 516, are conclusive on that subject, and this result was not disputed by counsel for her administrator. The sole question in the cause is whether, under the circumstances of this case, the fund passed under the residuary clause to the original testator's widow. If so, it passes under the terms of her will to the beneficiaries thereunder. If it did not pass under the residuary clause, then the first testator died intestate as to that sum of money, and it goes to his next of kin. The question, then, is this: What did the testator mean by the words in the fifteenth item of his will, "all the rest, residue and remainder of my estate, both real and personal, of every name and nature whatsoever"?

In ascertaining the intention of the testator here, as in all other cases, we must examine the admitted circumstances and consider each and every part of the will. He left four children, and he made separate provision for each one, and also for several relatives, by giving specific sums of money. He gives nothing in shares. It follows that he naturally felt that there might and probably would be a residue after making provision for the several legacies given to his children and relatives. The testator's daughter Caroline M. Walton was the youngest of the family, and was, at his death, a young lady about 30 years old. She was unmarried. He gave her a life estate in $10,000, with remainder to her children, if she had any, and with power of disposition by will over the fund if she left no children. Now, in ascertaining the condition of the testator's mind, it seems to me extremely difficult to suppose that he at that time anticipated that his widow would survive his daughter, and that his daughter would die in his wife's lifetime without exercising her power of disposition. Putting one's self in the place of the testator, is it possible to believe that he supposed that under any contingency the provision for his daughter would pass under the words "rest and residue"? Are we not, then, compelled to believe that when he came to the fifteenth clause of his will, to dispose of the rest and residue, he excluded from that rest and residue the previous legacies which he had given to a considerable amount, and that he included in that exclusion the provision for his daughter Caroline?

In answering this question we must not forget that we are to inquire not what the testator meant to say, but what he meant by what he did say. The will is drawn by a draftsman who was familiar with all the verbiage in ordinary use by such artists. There is no ambiguity or lack of clearness in any of the language, nor is there any evidence of haste or lack of deliberation, or any failure on the part of the draftsman to express all that was given him to be expressed. It is quite impossible to believe that the testator's attention was called to the possibility that the gift to his daughter might fail by reason of her neither having children nor using the power of disposition plainly given. The precision with which all the provisions are expressed and the completeness of the expression indicates that the failure to provide for the contingency which has happened was due to an absence of any will or intention on the part of the testator to make such provision. In item 11 of the will we find that the testator makes a provision for a life interest in a fund for his sister Rebecca for her life, and then provides that at her death that legacy should be divided between his four children, with a full provision that, in case of the death of either of those four children, the issue of each of them should take the share of their parents. Then by the sixth item of his will he made a provision for a legacy for his granddaughter Elizabeth, for her benefit during her life, and at her death the sum to be divided between her children; but, if she died without children, "then the said sum of two thousand dollars shall be equally divided among such of my children as shall then be living," etc. By the seventh item he gives the sum of $10,000 to be invested for the benefit of his daughter Mrs. Brown during her life, and at her death the same to be equally divided among her children; but, if she left no children surviving her, then that daughter should be at liberty to dispose of said sum by her last will and testament. Then follows the provision for his daughter Caroline here in question.

It thus appears that the attention of the testator was in several instances called to the contingency of the legatee for life dying without children, and in one case he provides that the money shall go over to his children, and in two cases he provides that for want of children the legatee for life shall have the power of disposition by will. Now it seems to me that these circumstances show that the testator supposed that the power of disposition by will resulted practically in an absolute final disposition of the fund, and that he did not suppose that there was anyoccasion for any farther disposition of either of those legacies for life, and that in fact he entertained no will or wish as to the disposition of his property in the contingency which has arisen in the present case. The conclusion to which I am compelled is that the testator did not intend to include, and that we are not driven by any hard and fast rule of construction to the conclusion that he did intend to include, in his gift of the residue the legacy here in question.

I have examined a great many authorities found in the books on this subject and I find none that govern the present case, and I merely repeat what has been said frequently of late years by judges, that the construction of a will should he governed by the language itself, with the circumstances, and not by precedents, unless they be precisely the same. One class of cases may be mentioned, and that is those of lapsed legacies, such as Tindall's Ex'rs v. Tindall, 24 N. J. Eq. 512. They constitute a class by themselves. The present case is not in that class. The legacy here took effect. The intention of the testator as to it has been entirely carried out. I can find nothing in the will that shows that he had any further intention in regard to it.

I will advise a decree that the testator died intestate as to this fund, and it will be disposed of accordingly. As before remarked, the testator's will is clear that his daughter Caroline took no more than a life estate in the fund. Hence her personal representative is not entitled to any share of it.