Mayham, J.
Buel Maben by his will bequeathed certain specific legacies, therein specified, to two of his children and one of his grandchildren; and by the fourth clause of that instrument gave, devised, and bequeathed all the rest, residue, and remainder of his estate, real and personal, to his executors therein named, to be disposed of by them as thereafter provided in said will. By the fifth clause of his will the testator authorized, empowered, and directed his executors to sell his real estate, or any portion of the same, when they, or a majority of them, should deem it for the best interest of the estate, and execute deeds therefor, and in the same clause provided as follows: “I direct my said executors to divide my estate (not before devised or bequeathed) into seven equal parts. Each of my children is to have one of said parts; my son Wilber B., one-seventh; Jonathan A., one-seventh; Alanson J., one-seventh; mydaughther Antoinette, one-seventli, except that she (Antoinette) shall be charged with six hundred dollars heretofore advanced to her; Dia•demia, one-seventh; Eesie S., one-seventh; Abigail D., one seventh; and until my real estate shall be sold, the income arising from the said estate shall be paid to the several legatees and devisees hereinbefore named, according to their respective or apportionate interests thereof as herein provided.” The sixth clause provides that if Diademia shall die without a will her interest remaining shall be equally divided among his other children. The eighth clause •of the will is the one under which this controversy chiefly arises, and is as follows: “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 such deceased child shall-go equally to my other children, but in the manner and subject to the like limitation as the specific bequests *o each of them as have been hereinbefore provided and given.” After the [733]*733death of the testator, his daughter Abigail married Fred H. Mead, and soon thereafter died, intestate, and without issue; and Fred H. Mead was duly appointed and qualified as administrator of her estate. Jonathan A. Maben died after the testator, having made a will, which has been admitted to probate, also leaving children him surviving; Antoinette Feft died after the testator, leaving children her surviving. On the hearing before the surrogate Fred H. Mead, in person and as administrator of his deceased wife, appeared before the surrogate, and claimed the one-seventh of the residuum of the estate as devised and bequeathed by the testator to his wife, now deceased, under the provisions of the will. This claim was resisted by the executors and other parties9interested in the estate, and the surrogate thereupon adjudged and determined and ordered as follows: “And it is further ordered, adjudged, and decreed that by virtue of the provisions of said will the said Fred H. Mead, as administrator of the goods, chattels, and credits of Abigail D. Mead* (formerly Maben,) deceased, takes no interest whatever in said estate, as the-said Abigail D. Mead (formerly Maben) died without leaving surviving child or children or heirs of the body.” To this finding and determination Fred EL Mead duly excepted. This ruling, decree, and determination, and the exception thereto, bring up the only controverted question in this case.
The question for determination on this appeal is sharply presented, and is: Did the contingency of the death of a legatee or devisee without issue refer to-death before or after the death of the testator ? The answer to this question is decisive of the point raised on this appeal. If before, then the contention of the appellant is correct, and the decree should be reversed; if after the-death of the testator, then, on the death of the appellant’s intestate without issue, the devise and bequest to her failed, and the seventh devised and bequeathed to her fell back into the bulk of the estate, to be distributed to the surviving legatees and devisees of the testator, and the appellant, as personal representative or next of kin of his deceased wife, took no interest in' the estate. The rule seems well settled that when a testator provides in his will that if one of his legatees or devisees die without children, the share devised to him shall go to the survivors, without anything in the will to qualify the-effect of that language, the death must occur prior to that of the testator before the limitation over can attach; and, on the death of the testator, the title vests absolutely in the legatee or devisee. In Vanderzee v. Slingerland, 103 N. Y. 53, 8 N. E. Rep. 247, Andrews, J.,says: “This rule applies to both real and personal estate, and, as far as I know, the authorities in this country uniformly sustain the construction that, where there is a devise or bequest simplioiter to one person, and in case of his death to another, the words refer to a death in the life-time of the testator.” In Quackenbos v. Kingsland, 102 N. Y. 128, 6 N. E. Rep. 121, the testator, after certain specific devises- and bequests, gave the residue of his estate to his son Daniel and his heirs. Then follow these words: “But in case my son Daniel shall die without lawful issue, I give and bequeath it to my remaining children, share and share-alike. ” Daniel survived the testator, and it was held that, in the absence of other words showing a contrary intent, the death referred to was the death of the beneficiary during the life of the testator; and that, upon his death* Daniel took an absolute estate; and Danborth, J., in delivering the opinion of the court, says: “It [the will] gives the remainder of his estate to his son Daniel and to his heirs. So far' absolutely; but, as this interest could not. vest until his death, the testator, to provide against the consequence of a lapse* says: * In case my son Daniel shall die without lawful issue, I give the estate to my.remaining children.’ These words, we must hold upon principle and authority, relate to the death of the testator, and upon that event during the life-time of Daniel Kingsland, Jr., the latter became vested with the residuary estate, and was entitled to its possession. This conclusion is required by the decision of this court in many similar cases.” And the court cites in, [734]*734support of this conclusion, Embury v. Sheldon, 68 N. Y. 227, and Livingston v. Greene, 52 N. Y. 118, to which might be added Moore v. Lyons, 25 Wend. 119; Kelly v. Kelly, 61 N. Y 47, and others. In the recent case of Austin v. Oakes, 117 N. Y. 595, 23 N. E. Rep. 193, the court reasserts the doctrine upon this point of Vanderzee v. Slingerland, supra, so that the recent authoritative declaration and reiteration of this doctrine by the court of appeals make further discussion or citation of authority upon that point unnecessary.
The general doctrine that in case of a devise or bequest to one or more persons absolutely, and, in case of the death of the devisee or legatee without issue, ■then sucli share over to the survivor or survivors, that such words of contingency refer to a death of the devisee or legatee in the life-lime of the testator, is too thoroughly established by recent and controlling authority to be ignored •or unheeded by this court, and must control in this case unless there is a clear •intention manifested by the testator in his will to apply that contingency to the death of a beneficiary without issue to a time after as well as before the death of the testator.
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Mayham, J.
Buel Maben by his will bequeathed certain specific legacies, therein specified, to two of his children and one of his grandchildren; and by the fourth clause of that instrument gave, devised, and bequeathed all the rest, residue, and remainder of his estate, real and personal, to his executors therein named, to be disposed of by them as thereafter provided in said will. By the fifth clause of his will the testator authorized, empowered, and directed his executors to sell his real estate, or any portion of the same, when they, or a majority of them, should deem it for the best interest of the estate, and execute deeds therefor, and in the same clause provided as follows: “I direct my said executors to divide my estate (not before devised or bequeathed) into seven equal parts. Each of my children is to have one of said parts; my son Wilber B., one-seventh; Jonathan A., one-seventh; Alanson J., one-seventh; mydaughther Antoinette, one-seventli, except that she (Antoinette) shall be charged with six hundred dollars heretofore advanced to her; Dia•demia, one-seventh; Eesie S., one-seventh; Abigail D., one seventh; and until my real estate shall be sold, the income arising from the said estate shall be paid to the several legatees and devisees hereinbefore named, according to their respective or apportionate interests thereof as herein provided.” The sixth clause provides that if Diademia shall die without a will her interest remaining shall be equally divided among his other children. The eighth clause •of the will is the one under which this controversy chiefly arises, and is as follows: “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 such deceased child shall-go equally to my other children, but in the manner and subject to the like limitation as the specific bequests *o each of them as have been hereinbefore provided and given.” After the [733]*733death of the testator, his daughter Abigail married Fred H. Mead, and soon thereafter died, intestate, and without issue; and Fred H. Mead was duly appointed and qualified as administrator of her estate. Jonathan A. Maben died after the testator, having made a will, which has been admitted to probate, also leaving children him surviving; Antoinette Feft died after the testator, leaving children her surviving. On the hearing before the surrogate Fred H. Mead, in person and as administrator of his deceased wife, appeared before the surrogate, and claimed the one-seventh of the residuum of the estate as devised and bequeathed by the testator to his wife, now deceased, under the provisions of the will. This claim was resisted by the executors and other parties9interested in the estate, and the surrogate thereupon adjudged and determined and ordered as follows: “And it is further ordered, adjudged, and decreed that by virtue of the provisions of said will the said Fred H. Mead, as administrator of the goods, chattels, and credits of Abigail D. Mead* (formerly Maben,) deceased, takes no interest whatever in said estate, as the-said Abigail D. Mead (formerly Maben) died without leaving surviving child or children or heirs of the body.” To this finding and determination Fred EL Mead duly excepted. This ruling, decree, and determination, and the exception thereto, bring up the only controverted question in this case.
The question for determination on this appeal is sharply presented, and is: Did the contingency of the death of a legatee or devisee without issue refer to-death before or after the death of the testator ? The answer to this question is decisive of the point raised on this appeal. If before, then the contention of the appellant is correct, and the decree should be reversed; if after the-death of the testator, then, on the death of the appellant’s intestate without issue, the devise and bequest to her failed, and the seventh devised and bequeathed to her fell back into the bulk of the estate, to be distributed to the surviving legatees and devisees of the testator, and the appellant, as personal representative or next of kin of his deceased wife, took no interest in' the estate. The rule seems well settled that when a testator provides in his will that if one of his legatees or devisees die without children, the share devised to him shall go to the survivors, without anything in the will to qualify the-effect of that language, the death must occur prior to that of the testator before the limitation over can attach; and, on the death of the testator, the title vests absolutely in the legatee or devisee. In Vanderzee v. Slingerland, 103 N. Y. 53, 8 N. E. Rep. 247, Andrews, J.,says: “This rule applies to both real and personal estate, and, as far as I know, the authorities in this country uniformly sustain the construction that, where there is a devise or bequest simplioiter to one person, and in case of his death to another, the words refer to a death in the life-time of the testator.” In Quackenbos v. Kingsland, 102 N. Y. 128, 6 N. E. Rep. 121, the testator, after certain specific devises- and bequests, gave the residue of his estate to his son Daniel and his heirs. Then follow these words: “But in case my son Daniel shall die without lawful issue, I give and bequeath it to my remaining children, share and share-alike. ” Daniel survived the testator, and it was held that, in the absence of other words showing a contrary intent, the death referred to was the death of the beneficiary during the life of the testator; and that, upon his death* Daniel took an absolute estate; and Danborth, J., in delivering the opinion of the court, says: “It [the will] gives the remainder of his estate to his son Daniel and to his heirs. So far' absolutely; but, as this interest could not. vest until his death, the testator, to provide against the consequence of a lapse* says: * In case my son Daniel shall die without lawful issue, I give the estate to my.remaining children.’ These words, we must hold upon principle and authority, relate to the death of the testator, and upon that event during the life-time of Daniel Kingsland, Jr., the latter became vested with the residuary estate, and was entitled to its possession. This conclusion is required by the decision of this court in many similar cases.” And the court cites in, [734]*734support of this conclusion, Embury v. Sheldon, 68 N. Y. 227, and Livingston v. Greene, 52 N. Y. 118, to which might be added Moore v. Lyons, 25 Wend. 119; Kelly v. Kelly, 61 N. Y 47, and others. In the recent case of Austin v. Oakes, 117 N. Y. 595, 23 N. E. Rep. 193, the court reasserts the doctrine upon this point of Vanderzee v. Slingerland, supra, so that the recent authoritative declaration and reiteration of this doctrine by the court of appeals make further discussion or citation of authority upon that point unnecessary.
The general doctrine that in case of a devise or bequest to one or more persons absolutely, and, in case of the death of the devisee or legatee without issue, ■then sucli share over to the survivor or survivors, that such words of contingency refer to a death of the devisee or legatee in the life-lime of the testator, is too thoroughly established by recent and controlling authority to be ignored •or unheeded by this court, and must control in this case unless there is a clear •intention manifested by the testator in his will to apply that contingency to the death of a beneficiary without issue to a time after as well as before the death of the testator. The rule, as above stated, does not seem to be seriously attacked by the learned counsel for the respondents by a reference by them or either of them to authorities to overthrow the doctrine of the cases to which we have referred; but we are referred to the harshness of the rule •as applied to the facts in the case, and urged to spell out from the will an intention on the part of the testator to retain this property entirely within -the control of his lineal descendants to the extent that under certain conditions it would be inalienable by his legatees and devisees. It is undoubtedly the duty of the court to give effect to the intention of the testator. But it should not be so read as to contradict itself; and", if capable of two constructions, one consistent and the other inconsistent' with the law, the former will be preferred, as it is presumed the testator intended to comply with the law. Crozier v. Bray, 120 N. Y. 375, 24 N. E. Rep. 712. In Re New York, L. & W. R. Co., 105 N. Y. 89, 11 N. E. Rep. 492, it was held that where there is a devise to one person absolutely, and in the ease of his death to another, the -contingency referred to is the death in the life-time of the testator, but that rule only applies where the context of the will is silent, and affords no indi-1 cation of a different intention; and where the devise over is dependent upon death without issue the tendency of the court is to lay hold of a slight circumstance in the will to vary the construction, and give effect to the language in its natural import; but the intention of the testator in that case was clearly indicated in the will by a positive provision that “ the devise over to my husband, sister, and brothers to depend upon the contingency of my ■daughter Monnie dying without issue.” The daughter named survived the testatrix, and it was held that she took a conditional fee; that her- children, should she leave any, would take from her by inheritance, but a conveyance •by her in her life-time would be effectual as against them. In Beck v. Ennis, 7 N. Y. Supp. 264, the contingency was in express terms made to depend not on the legatee’s death before the testator, but upon the death of a brother or sister in case the legatee died before them, without issue. It is apparent that that case did not come within the rule to which we have referred, and the court so hold. In Goerlitz v. Malawista the contingency suggested was the death or marriage of the wife of testator, and the court held that the contingency related to the life-tenant, and not to that of the testator. It is apparent that the event upon which the estate was contingent could notarise during the life of the testator, and was, therefore, upon the face of the will, not contingent upon the death of the beneficiary before that of the testator.-•8 E. Y. Supp. 832. In the case at bar there is no express provisions of the will from which it appears that the testator intended that the death referred to, and upon which the estate was contingent, might occur after or before •that of the testator. The fact that the estate devised and bequeathed to Jona[735]*735than and Diademia depended upon the other conditions does not, we think, afford any evidence of the intent of the testator in reference to the share of Abigail to take her. share out of the operation of the general rule of law applicable to devises and bequests of that character.
We think the learned surrogate erred in ruling and holding in effect that the death of Abigail without issue after the death of the testator carried her one-seventh of the estate back into the bulk of the estate, to be distributed to the surviving legatees and devisees. As the question as to what interests the appellant took of her share as her personal representative and husband has not been raised on this appeal, we do not feel called upon to consider that question. Nor do we see that the point raised by the counsel for the special guardian of Tibbie and Frank Maben was raised before the surrogate. If the return is defective, we do not see how this court can furnish relief. It should, we think, be first sought before the surrogate. The decree must he reversed, and the case remitted to the surrogate for a new trial.