Chahplin, C. J.
The bill is filed to remove a cloud upon title, and to obtain a construction of a will, which is quite fully set out in the opinion of my Brother Morse.
But two questions are involved, and they relate to the construction to be given to the third and eighth clauses of the will:
[432]*432First. Does the fee of the real estate devised by the third clause vest in the devisees therein named, upon the death of the testator?
Second. If it did vest under the third clause, was it subject to be divested under the eighth clause, in case of the death of either of the devisees before the termination of the precedent estate devised to the widow?
The answer to these questions must depend upon the intention of the testator, either as expressed or inferred or assumed, in accordance with the well-established canons of construction. The fundamental rule of construction is that the intention of the testator must be gathered from a consideration of the whole instrument together, giving to each part or clause due weight, as expressing some idea of the testator in the disposition of his property. The first and dominant idea of the testator, as manifested in this will, is that his wife, Clotilde, shall have a life-estate in possession of all of his property, real and personal, with remainder over to his children, as therein set forth. The time of enjoyment of the remainder was postponed until the death of his wife. Section 5523 of Howell’s Statutes enacts that—
“Estates, as respects the time of their enjoyment, are divided into estates in possession and estates in expectancy.”
Section 5525 enacts that—
“Estates in expectancy are divided into—
“1. Estates commencing at a future day, denominated ‘future estates;’ and
“2. Keversions.”
Section 5526 defines a “future estate” as—
“An estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate created at the same time.”
[433]*433Section 5527 provides that — -
“When a future estate is dependent upon a precedent estate, it may be termed a ‘remainder,’ and may be created and transferred by that name.”
We have here, then, under the third clause of this will, a vested future estate, within the very terms of the statute, devised to Sarah, Emily, and Eleanor.
The question now arises,'was it the intention of the testator to make this vested future estate subject to be defeated by the contingency- mentioned' in the eighth clause? In the first place, it will be noticed that the habendum clause does 'not devise the estate absolutely to Sarah, Emily, and Eleanor, and their heirs and assigns forever, unqualifiedly, but adds this significant qualification: “After the determination of the life-estate aforesaid.” He made no such qualification in the habendum to his devise to Josephine, nor in the habendum to his two sons, in the fifth clause. After disposing of the remainder to certain of his children named, excluding Margaret, the daughter of' his deceased son, Charles, he then makes such remainder subject to the following contingency:
“And whereas, one or more of my said children may not survive me or my said wife, I hereby order, direct, and devise the share of such devisee or devisees in such case to be equally divided amongst the remaining children herein named, and to their • heirs, share and share alike.”
It is claimed that this clause is obscure, and open to two constructions. I do not so regard it. The testator was looking to the future. The question with him was, what provisions should be made with reference to these remainders in case either of his children named to whom he had devised the lands in remainder should die before he did, or before his wife, to whom he had granted the life-estate in possession? If such con[434]*434tingency should happen, he devises the share of such devisee or devisees to the surviving children named, to whom the share or shares had been given, and to their heirs, share and share alike, The obvious sense and meaning is that “ one or more of my children may die before my will can take effect by my death,” and he provided for that contingency should it happen; and it also occurred to him that one or more might die before they could come into possession by the death of his wife; and in either case he provided what should be done with the share of such children named, — it should go to the heirs of any such deceased child, share and share alike. He disinherited no child of his children named as devisees. He did not inteñd that Margaret should, in any event, share in the “ worldly effects ” left by him. He gave explicit reasons for that, and provided that, if she should survive him, she should be paid $10 by his executors out.of his personal estate. Can it be supposed that, after making this declaration of his intent not to have Margaret share in his estate, he, by the next clause, admitted her to a share in the devises he had given to his children in case one or more died before he or his wife died? It seems to me that such a construction would be a forced one, and quite contrary to the intention expressed.
Neither can I construe the language to mean that “ my said wife may not survive me.” This construction destroys the whole scheme of the will. The will can have no force unless there be an intermediate estate in his widow, and the legacies would all lapse. He did not intend that any of his property should be administered as intestate property. He disposed of the whole, and yet, to give this clause the construction contended for by the counsel for defendants, causes these shares [435]*435to be administered the same, as intestate- estates, and admits Margaret to share in the real estate, contrary to the will of the testator.
The remainder to his children was 'subject to the limitation of the eighth- clause. The devise to his children created a vested estate, subject to be defeated by the subsequent contingency stated in the eighth clause. As to the shares of any child or children dying before the death of Clotilde, they became a contingent remainder to the surviving children, and the heirs of any deceased child, at the termination of the precedent estate of Clotilde. ' As to such the precedent estates in remainder terminated on the 'death of such child, and a contingent remainder was created in the surviving children and the heirs of any deceased child. Such contingent remainder could not vest until the death of Clotilde, for u,ntil then it could not be known who would be entitled to it as heirs or survivors. In the language of the statute, it was contingent while the person to whom it was limited to take effect remained uncertain.
By the statute, contingent estates are made to depend upon two conditions, — one is while the person to whom the estate is given remains uncertain, and the other when the event upon which such estates are limited to take effect remains uncertain.
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Chahplin, C. J.
The bill is filed to remove a cloud upon title, and to obtain a construction of a will, which is quite fully set out in the opinion of my Brother Morse.
But two questions are involved, and they relate to the construction to be given to the third and eighth clauses of the will:
[432]*432First. Does the fee of the real estate devised by the third clause vest in the devisees therein named, upon the death of the testator?
Second. If it did vest under the third clause, was it subject to be divested under the eighth clause, in case of the death of either of the devisees before the termination of the precedent estate devised to the widow?
The answer to these questions must depend upon the intention of the testator, either as expressed or inferred or assumed, in accordance with the well-established canons of construction. The fundamental rule of construction is that the intention of the testator must be gathered from a consideration of the whole instrument together, giving to each part or clause due weight, as expressing some idea of the testator in the disposition of his property. The first and dominant idea of the testator, as manifested in this will, is that his wife, Clotilde, shall have a life-estate in possession of all of his property, real and personal, with remainder over to his children, as therein set forth. The time of enjoyment of the remainder was postponed until the death of his wife. Section 5523 of Howell’s Statutes enacts that—
“Estates, as respects the time of their enjoyment, are divided into estates in possession and estates in expectancy.”
Section 5525 enacts that—
“Estates in expectancy are divided into—
“1. Estates commencing at a future day, denominated ‘future estates;’ and
“2. Keversions.”
Section 5526 defines a “future estate” as—
“An estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate created at the same time.”
[433]*433Section 5527 provides that — -
“When a future estate is dependent upon a precedent estate, it may be termed a ‘remainder,’ and may be created and transferred by that name.”
We have here, then, under the third clause of this will, a vested future estate, within the very terms of the statute, devised to Sarah, Emily, and Eleanor.
The question now arises,'was it the intention of the testator to make this vested future estate subject to be defeated by the contingency- mentioned' in the eighth clause? In the first place, it will be noticed that the habendum clause does 'not devise the estate absolutely to Sarah, Emily, and Eleanor, and their heirs and assigns forever, unqualifiedly, but adds this significant qualification: “After the determination of the life-estate aforesaid.” He made no such qualification in the habendum to his devise to Josephine, nor in the habendum to his two sons, in the fifth clause. After disposing of the remainder to certain of his children named, excluding Margaret, the daughter of' his deceased son, Charles, he then makes such remainder subject to the following contingency:
“And whereas, one or more of my said children may not survive me or my said wife, I hereby order, direct, and devise the share of such devisee or devisees in such case to be equally divided amongst the remaining children herein named, and to their • heirs, share and share alike.”
It is claimed that this clause is obscure, and open to two constructions. I do not so regard it. The testator was looking to the future. The question with him was, what provisions should be made with reference to these remainders in case either of his children named to whom he had devised the lands in remainder should die before he did, or before his wife, to whom he had granted the life-estate in possession? If such con[434]*434tingency should happen, he devises the share of such devisee or devisees to the surviving children named, to whom the share or shares had been given, and to their heirs, share and share alike, The obvious sense and meaning is that “ one or more of my children may die before my will can take effect by my death,” and he provided for that contingency should it happen; and it also occurred to him that one or more might die before they could come into possession by the death of his wife; and in either case he provided what should be done with the share of such children named, — it should go to the heirs of any such deceased child, share and share alike. He disinherited no child of his children named as devisees. He did not inteñd that Margaret should, in any event, share in the “ worldly effects ” left by him. He gave explicit reasons for that, and provided that, if she should survive him, she should be paid $10 by his executors out.of his personal estate. Can it be supposed that, after making this declaration of his intent not to have Margaret share in his estate, he, by the next clause, admitted her to a share in the devises he had given to his children in case one or more died before he or his wife died? It seems to me that such a construction would be a forced one, and quite contrary to the intention expressed.
Neither can I construe the language to mean that “ my said wife may not survive me.” This construction destroys the whole scheme of the will. The will can have no force unless there be an intermediate estate in his widow, and the legacies would all lapse. He did not intend that any of his property should be administered as intestate property. He disposed of the whole, and yet, to give this clause the construction contended for by the counsel for defendants, causes these shares [435]*435to be administered the same, as intestate- estates, and admits Margaret to share in the real estate, contrary to the will of the testator.
The remainder to his children was 'subject to the limitation of the eighth- clause. The devise to his children created a vested estate, subject to be defeated by the subsequent contingency stated in the eighth clause. As to the shares of any child or children dying before the death of Clotilde, they became a contingent remainder to the surviving children, and the heirs of any deceased child, at the termination of the precedent estate of Clotilde. ' As to such the precedent estates in remainder terminated on the 'death of such child, and a contingent remainder was created in the surviving children and the heirs of any deceased child. Such contingent remainder could not vest until the death of Clotilde, for u,ntil then it could not be known who would be entitled to it as heirs or survivors. In the language of the statute, it was contingent while the person to whom it was limited to take effect remained uncertain.
By the statute, contingent estates are made to depend upon two conditions, — one is while the person to whom the estate is given remains uncertain, and the other when the event upon which such estates are limited to take effect remains uncertain. In this case the event upon which they are limited to take effect must be uncertain, for the reason that one or more of the children, if the contingency happened, must die before his wife, Clotilde, - — events which must happen, if at all, within a certain time; and it is the event, and not the time, that controls in determining the question as to whether the remainder is contingent or vested. But they are contingent also while the person to whom they are limited to take effect remains uncertain, and that is the contin[436]*436gency in this case; for it. was not known, at the time the testator made his will, or at the time when he died, that Timothy and Eleanor and Emily would each die before his wife, Clotilde, should die. And by the eighth clause he made the contingency to happen, not upon the time of distribution, but the contingency was annexed to the gift itself, and in such cases they have been regarded as contingent, and not vested, remainders.
A vested estate, whether present or future, may be absolutely or defeasibly vested. In the latter case, it is said to be vested, subject to being divested on the happening of a contingency subsequent. Chapl. Suspen. § 57; Manice v. Manice, 43 N. Y. 303; Howell v. Mills, 7 Lans. 193; Kelso v. Lorillard, 85 N. Y. 177; Baker v. McLeod’s Estate, 79 Wis. 534 (48 N. W. Rep. 657); Burnham v. Burnham, Id. 557 (48 N. W. Rep. 661), And where there is a substituted [devise, to take effect in case any of the class die during the precedent estate, the remainder is then vested in the .existing members, subject to open to let in new members, and to be wholly divested in favor of the substituted devisee as.to the share of the member dying. Chapl. Suspen. § 59; Smith v. Scholtz, 68 N. Y. 41; Baker v. Lorillard, 4 Id. 257; Du Bois v. Ray, 35 Id. 162. In Carmichael v. Carmichael, 1 Abb. N. Y. App. 309, there was a devise to the testator’s wife for life, and from and after her decease to the testator’s children who might then be living. The court held that “the estate does not vest in remainder until her [the widow’s] death, and then it vests only in those children who shall be living at the time of her death.” See, also, Hennessy v. Patterson, 85 N. Y. 91.
It remains to be considered what effect shall be given to the mortgages executed by Emily upon the property described in the third clause of the will. These were executed after Eleanor’s death, and purported to be upon the [437]*437undivided five-twelfths of the real estate described in the third clause of the will. Emily was at that time vested with the undivided third interest in remainder in the land. Timothy had died in 1861, leaving four of the six ■children at the time the mortgages were executed. Both Eleanor and Timothy died childless, without heirs. Emily evidently supposed that the one-third interest in the remainder of Eleanor was to be divided among the four surviving children, and she would on that basis be ■entitled to the undivided one-third of one-fourth, as she ■considered, equal to one-twelfth, which, together with her four-twelfths, would equal five-twelfths; and upon this share she executed the two mortgages set out in the '.bill. The property is said to be worth $25,000.
Section 5551, How. Stat., provides that “expectant ■estates are descendible, devisable, and alienable in the same manner as estates in possession.” Contingent estates, although not vested, are within the provisions -of the section; but when alienated, if they are defeasible, they are subject to the contingency by which they may be'defeated. Emily’s estate was subject to be defeated by her death before that of her mother, by which the1 ■estate then vested in her was cast upon her surviving brother and sisters, share and share alike; and of this .the purchaser or mortgagee must take notice. She could not defeat the remainder-from vesting in her brother and sisters upon the contingency of her death before she was ■entitled to come into the possession, for the statute, (How. Stat. § 5548) declares that—
“No expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate by disseisin, forfeiture, surrender, merger, or otherwise.”
Neither can these expectant estates of her brother and [438]*438sisters be defeated by the manner of dealing with the estate by the devisees of the testator. I find no evidence in the record that the devisees ever dealt upon the basis now contended for by defendants, who divide the estate jnto 54 shares, giving Emily 21 and Margaret 3 fifty-fourths; nor, in my opinion, does the will executed by Timothy lend any aid to defendant's counsel. That will was dated the 4th day of February, 1861. He died on the next day. His father was already dead. The will shows that- he did not at that time suppose that he had any vested estate in the remainder left to him and his brother, Louis. This is the language he makes use of in disposing of his estate:
“Second. I give, grant, and devise all and every my interest, right, and estate, after the payment of said debts and expenses aforesaid, whether real or personal, and whether present or in remainder (being chiefly my interest and estate in the personal property and real estate left by my deceased father, Francis TEtourneau, by his last will), to my sisters, Emily, Sarah, and Eleanor TEtourneau, and to my sister, Josephine Paquette, and my brother, the Rev. Louis J. TEtourneau, equally, to be divided between them, share and share alike; subject, nevertheless, to and under the limitation hereinafter mentioned:
“1. In case of the death of my said sister, Mrs. Josephine Paquette, and of the heirs of her body, before said estate so left by my father in remainder shall become vested, I direct that her share shall descend, and hereby devise her share of said estate, to my surviving brother and sisters equally, to be divided amongst such survivors, share and share alike.
“ 2. In case of the death of either of my said sisters or brother before said estate so as aforesaid devised by me shall become vested in them, I direct and devise that the share of said deceased sister or brother go to the survivor or survivors equally, to be divided share and share alike.”
It is apparent that he did not regard the remainder left by his father as yet having vested in him, and it [439]*439will be further noted that he giv.es the property in the same manner and to the same persons mentioned in the eighth clause of his father’s will. He provides for the contingency of either of his sisters or brother dying before the estate given by himself becomes vested in them, and directs that such share shall be equally divided between the survivors, share and share alike; thus treating his estate as a contingent remainder, and not to vest in his devisees until the death of his mother. Emily made her will May 2, 1868, she only assuming to devise “such property, either real or personal, as I have or may hereafter during my. life inherit at any time.” This will throws no light upon the construction to he placed upon that executed by her father. Moreover, I consider it would be an unsafe doctrine, to hold that the intention of a testator should be ascertained from the claims made by devisees who are anxious to obtain the property which they think they are entitled to under their construction of the will.
In my opinion, the mortgagees have no claim upon Emily’s share, which by the eighth clause passed to 'the surviving brother and sisters. Whether the eighth clause constituted a contingent remainder or not. in such as should take under it, it can make no difference in the result in this case, because Emily having died without, heirs, before the death of her mother, her interests and. estate, whether vested or contingent, were defeated, and', passed to the surviving children, and the heirs of any-deceased children, who upon Clotilde’s death becameseised in fee of the remainder, and entitled to the immediate possession of the lands devised.
It is my opinion that the decree of the circuit court is erroneous, and should be reversed, and a decree entered herein in accordance with these views.
[440]*440McGrath and Long, JJ., concurred with Champlin, 0. J.