Spring, J.
On the 25th day of September, 1897, Gennet T. Gurnsey, a widow lady eighty-five years of age, made her last will and testament. She gave to her two great-grandchildren, Grade and Myrtie Cramer, all of her personal property, and then addéd this clause' to the bequest: But in the case of the death of either of. said greats ■ grandchildren, Grade' or Myrtie, without heir Or heirs, I direct that such share of personal property shall go to the survivor of them'.”". She likewise, .by a separate item, devised her real estate to these two beneficiaries, supplementing the devise by a clause similar to the One quoted. • .
At the time of the; execution of the will Grade was eleven years of age and Myrtie nine.. Grade died after the testatrix, leaving her mother and sister as her only heirs at law. The mother was the .general guardian of this daughter now deceased, and- had received money from the executrix of the will of Mrs. Gurnsey, and the surrogate construed the will of the testatrix in order to determine to whom this money belonged. Aside from the sum ■directly involved there are funds in the custody of the executrix. awaiting distribution until the determination of this- appeal. ■ The question is: Did the testatrix intend that in case one sister died the right of the other to take her share depended upon the latter dying without any heirs at law, or was that term restricted to descendants ?. - The mother contends that, inasmuch as the daughter died-leaving heirs, the contingency which was to forestall .the transfer of the share to the surviving sister has not happened.
It is well ■ settled that in construing Wills the words “ heirs,-” “heirs at law” or “issue” will .-be given .either their enlarged or restricted sense as best exemplifies the wishes of the testator. (Johnson v. Brasington, 156 N. Y. 181; New York Life Ins. & [543]*543Trust Co. v. Viele, 161 id. 11, 21 Armstrong v. Galusha, 43 App. Div. 248.)
If the right of Myrtie to receive this share depended upon her sister Gracie dying without any heirs at all, then we have an absurdity, for both Myrtie and her mother were her heirs: It would be rare indeed for one to be utterly without heirs. The clause is in the will for some purpose. Without it the mother and daughter would receive this share as next of kin. Either it was the design of the testatrix to make effective the transfer to the sister who survived, in case the one who died was childless, or else the clause is surplusage. We must give it some force unless in so doing we impair the general plan of the will, and the only interpretation which tallies at all with the obvious intention of the testatrix is that the surviving sister is entitled to this property.
The more troublesome question is, however, whether Gracie, having survived the testatrix, did not become vested with the bequest so that "it must now be apportioned according to the Statute of Distribution. Is the word “survivor” restricted to death-before that of the testatrix ? While the general use of the term is limited to that sense, the rule is not a hard and fast one and yields like all arbitrary tests to ■ the intention of the testator. ( Vanderzee v. Slingerland, 103 N. Y. 47, 55; Mead v. Maben, 131 id. 255; Nellis v. Nellis, 99 id. 505; Becker v. Becker, 22 App. Div. 234.)
In Benson v. Corbim, (145 N. Y. 351), Judge Finch, in construing-for the court the expression “ without issue ” in a will, and commenting upon this canon of interpretation, observes (at p. 359): “ While such is the general rule, it is said to maintain its hold somewhat weakly and with a doubtful grasp, and to yield easily to any fact or circumstance indicating a different intention.” In Mead v. Maben (supra) the testator divided his estate, after a few unimportant legacies, into seven parts, giving one to each of his children, and until the land was disposed of its income was to be paid to them. One clause of the will provided: “ If any of my children, except Diademia, shall die without leaving surviving child or children or heirs of the body, then the share or portion of my estate so given to such deceased child shall go equally to my other children * * *.” All of the children survived their father, but one subsequently [544]*544married and died without children, but leaving a husband who claimed that the interest of his wife became absolute upon the death of her father. The court, after referring to the general rule indicated, and declaring that it is subordinate to the intention of the testator’s scheme for the distribution of his property by his will, adds: “ In all the authorities which are referred to upon the subject of the application of the general rule above referred to, the courts, as indeed, does Mr. Jarman, upon the authority of whom the courts have more or less relied, assume that the context of the will is silent, and that the instrument contains nothing indicating an intention which interferes with the application of this rule.. * * * TPe rn]e must yield if, upon consulting the other provisions of a will, we can find a warrant for importing into the language used by the testator, the natural and an ordinary significancé. It cannot be denied that the .ordinary import of the words ‘ if any of my children shall die ’ is that of a death of any of them at any' time, and there are evidences in this will that not only such was the probable intention of the testator, but that to give a different construction to the language would be to thwart an apparent and a natural purpose of keeping his estate from the possession of strangers in blood.”
In the present case the testatrix, with her eighty-five years and with these little girls, only nine and eleven respectively, could not have intended to restrict the survivorship without heirs to a death, prior to her own. In the natural course of events, if one of these heirs died before the testatrix, she would leave no children. In arriving at her purpose we cannot ignore this obvious fact and the further fact that they would probably outlive her. The testatrix had one object in view and that was to insure the transmission of her estate-to these two children or the survivor of them unless one died leaving issue. In further confirmation of this is the fact that no-specific provision is made for their mother to take in any event. While she would be the beneficiary if both the children died childless, yet the testatrix apparently was not contemplating. this contingency, but was animated by the desire to aid the children. If they had not been uppermost in her purpose she would - have been apt to provide for the mother when the death of either child occurred; Her omission to do this is a circumstance indicating [545]*545that she expected the grandchild surviving to receive the entire property, unless as time ran along children were bom before death intervened. FTor is the clause under consideration wholly free from ambiguity. The expression “ without heir or heirs,” as has been stated, may be varying in its compass, in the one case restricted to descendants, and in another including collateral relatives, the meaning depending upon other provisions of the will or upon other facts •essential to ascertain the intention of the testatrix.
Washbon v. Cope (144 N. Y. 287) is not decisive of this case. The testator in.that case was an.
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Spring, J.
On the 25th day of September, 1897, Gennet T. Gurnsey, a widow lady eighty-five years of age, made her last will and testament. She gave to her two great-grandchildren, Grade and Myrtie Cramer, all of her personal property, and then addéd this clause' to the bequest: But in the case of the death of either of. said greats ■ grandchildren, Grade' or Myrtie, without heir Or heirs, I direct that such share of personal property shall go to the survivor of them'.”". She likewise, .by a separate item, devised her real estate to these two beneficiaries, supplementing the devise by a clause similar to the One quoted. • .
At the time of the; execution of the will Grade was eleven years of age and Myrtie nine.. Grade died after the testatrix, leaving her mother and sister as her only heirs at law. The mother was the .general guardian of this daughter now deceased, and- had received money from the executrix of the will of Mrs. Gurnsey, and the surrogate construed the will of the testatrix in order to determine to whom this money belonged. Aside from the sum ■directly involved there are funds in the custody of the executrix. awaiting distribution until the determination of this- appeal. ■ The question is: Did the testatrix intend that in case one sister died the right of the other to take her share depended upon the latter dying without any heirs at law, or was that term restricted to descendants ?. - The mother contends that, inasmuch as the daughter died-leaving heirs, the contingency which was to forestall .the transfer of the share to the surviving sister has not happened.
It is well ■ settled that in construing Wills the words “ heirs,-” “heirs at law” or “issue” will .-be given .either their enlarged or restricted sense as best exemplifies the wishes of the testator. (Johnson v. Brasington, 156 N. Y. 181; New York Life Ins. & [543]*543Trust Co. v. Viele, 161 id. 11, 21 Armstrong v. Galusha, 43 App. Div. 248.)
If the right of Myrtie to receive this share depended upon her sister Gracie dying without any heirs at all, then we have an absurdity, for both Myrtie and her mother were her heirs: It would be rare indeed for one to be utterly without heirs. The clause is in the will for some purpose. Without it the mother and daughter would receive this share as next of kin. Either it was the design of the testatrix to make effective the transfer to the sister who survived, in case the one who died was childless, or else the clause is surplusage. We must give it some force unless in so doing we impair the general plan of the will, and the only interpretation which tallies at all with the obvious intention of the testatrix is that the surviving sister is entitled to this property.
The more troublesome question is, however, whether Gracie, having survived the testatrix, did not become vested with the bequest so that "it must now be apportioned according to the Statute of Distribution. Is the word “survivor” restricted to death-before that of the testatrix ? While the general use of the term is limited to that sense, the rule is not a hard and fast one and yields like all arbitrary tests to ■ the intention of the testator. ( Vanderzee v. Slingerland, 103 N. Y. 47, 55; Mead v. Maben, 131 id. 255; Nellis v. Nellis, 99 id. 505; Becker v. Becker, 22 App. Div. 234.)
In Benson v. Corbim, (145 N. Y. 351), Judge Finch, in construing-for the court the expression “ without issue ” in a will, and commenting upon this canon of interpretation, observes (at p. 359): “ While such is the general rule, it is said to maintain its hold somewhat weakly and with a doubtful grasp, and to yield easily to any fact or circumstance indicating a different intention.” In Mead v. Maben (supra) the testator divided his estate, after a few unimportant legacies, into seven parts, giving one to each of his children, and until the land was disposed of its income was to be paid to them. One clause of the will provided: “ If any of my children, except Diademia, shall die without leaving surviving child or children or heirs of the body, then the share or portion of my estate so given to such deceased child shall go equally to my other children * * *.” All of the children survived their father, but one subsequently [544]*544married and died without children, but leaving a husband who claimed that the interest of his wife became absolute upon the death of her father. The court, after referring to the general rule indicated, and declaring that it is subordinate to the intention of the testator’s scheme for the distribution of his property by his will, adds: “ In all the authorities which are referred to upon the subject of the application of the general rule above referred to, the courts, as indeed, does Mr. Jarman, upon the authority of whom the courts have more or less relied, assume that the context of the will is silent, and that the instrument contains nothing indicating an intention which interferes with the application of this rule.. * * * TPe rn]e must yield if, upon consulting the other provisions of a will, we can find a warrant for importing into the language used by the testator, the natural and an ordinary significancé. It cannot be denied that the .ordinary import of the words ‘ if any of my children shall die ’ is that of a death of any of them at any' time, and there are evidences in this will that not only such was the probable intention of the testator, but that to give a different construction to the language would be to thwart an apparent and a natural purpose of keeping his estate from the possession of strangers in blood.”
In the present case the testatrix, with her eighty-five years and with these little girls, only nine and eleven respectively, could not have intended to restrict the survivorship without heirs to a death, prior to her own. In the natural course of events, if one of these heirs died before the testatrix, she would leave no children. In arriving at her purpose we cannot ignore this obvious fact and the further fact that they would probably outlive her. The testatrix had one object in view and that was to insure the transmission of her estate-to these two children or the survivor of them unless one died leaving issue. In further confirmation of this is the fact that no-specific provision is made for their mother to take in any event. While she would be the beneficiary if both the children died childless, yet the testatrix apparently was not contemplating. this contingency, but was animated by the desire to aid the children. If they had not been uppermost in her purpose she would - have been apt to provide for the mother when the death of either child occurred; Her omission to do this is a circumstance indicating [545]*545that she expected the grandchild surviving to receive the entire property, unless as time ran along children were bom before death intervened. FTor is the clause under consideration wholly free from ambiguity. The expression “ without heir or heirs,” as has been stated, may be varying in its compass, in the one case restricted to descendants, and in another including collateral relatives, the meaning depending upon other provisions of the will or upon other facts •essential to ascertain the intention of the testatrix.
Washbon v. Cope (144 N. Y. 287) is not decisive of this case. The testator in.that case was an. old man, but his daughter; the beneficiary, was a married woman and the birth of a child during "the lifetime of the testator was not at all improbable; in the case at bar it could hardly be expected. In that case there was a bequest in unmistakable terms to the daughter, and it was by a subsequent ■and independent clause that any paring down of the legacy was made, if at all. The court invoked the rule that an estate, once granted will not be lessened by succeeding portions of the will unless the intention to cut down is clear and definite. Again, the general plan of the will in that case involved an equal distribution among the children of the testator. There was nothing in the context of the will and no circumstance which called for a departure from the general rule as to the vesting of estates. In the present case there seems to have been an intention to exclude the mother of the infant ■children from participating in the estate of the testatrix. In the WasKbon case the legacy to the daughter and her aliquot portion as residuary legatee were paid over to her as absolute owner. After the lapse of twenty years, and as she was then sixty-seven years of ■age and had never given birth to a child, the action was. commenced to compel her to give security for the return to the estate, upon her •death, of the moneys paid to her. The scheme of the will, the ■recognition and long acquiescence of. the parties interested in her unqualified ownership, were potent circumstances in favor of adher ing to the general rule of construction referred to.
In the construction of wills containing clauses of this kind, each must depend upon its own peculiar facts, and it seems clear to my mind that the testatrix in this case intended that, if either of her beneficiaries died childless, the surviving legatee should take.
[546]*546The decree of the Surrogate’s Court should be affirmed, with costs of the general guardian payable out of the fund.
Adams, P. J., and Williams, J., concurred; McLennan, J., dissented in opinion, and Langhlin, J., in memorandum.