Opinion
May, 1934.
Decree modified in accordance with the memorandum and as modified affirmed, with separate bills of costs to parties appearing by separate attorneys and filing briefs upon this appeal, payable out of the estate. Memorandum: We construe this will, applied to the circumstances, as giving a devise and bequest of a fee simple absolute in equal shares to George and Mary Hoeschele. We construe the words "or the survivor" in the fourth paragraph as relating solely to a survivorship occurring during the life of the testatrix. ( Matter of Evans, 234 N.Y. 42. ) Considering the intention expressed in the third paragraph, we find the fifth paragraph of too uncertain meaning to have the effect of cutting down the devise and bequest in fee simple expressed in the fourth paragraph to life estates. ( Trask v. Sturges, 170 N.Y. 482; Banzer v. Banzer, 156 id. 429; Tillman v. Ogren, 227 id. 495, 505; Goodwin v. Coddington, 154 id. 283.) The fifth paragraph would have had importance if both George and Mary had died during the life of the testatrix. All concur.