same criticism as those of the plaintiffs. They are not wanting in strong and clear expressions in favor of the rule that the validity of particular bequests in a will is to be determined by the law of the testator's domicile, but in many of them the point was not necessarily involved, and the rule was stated or assumed as the settled law, by way of illustration, or for the purpose of reinforcing some other principle upon which the case turned. White v. Howard, 46 N. Y. 144; In re Hughes, 95 N. Y. 55; Hobson v. Hale, Id. 588; Bascom v. Albertson, 34 N. Y. 584; Whicker v. Hume, 7 H. L. Cas. 124; 3 Amer. & Eng. Enc. Law, p. 633; Whart. Confil. Laws, §§ 576-584; Dicey, Dom. p. 294.

The rule, however, is well settled in Massachusetts. A citizen of that state made a bequest to a town in New York for the benefit of the poor, which bequest would not be valid if made here; but it was held by the supreme court of that state, upon full consideration, that the bequest was valid, and that its validity was to be determined by the law of the testator's domicile, and not by the law of New York, where the trust was to be executed. The doctrine of that case has ever since been followed in that state. Fellows v. Miner, 119 Mass. 541; Sohier v. Burr, 127 Mass. 221; Sewall v. Wilmer, 132 Mass. 131. The same rule is laid down by the United States supreme court. Jones v. Habersham, 107 U. S. 174, 2 Sup. Ct. Rep. 336.

The courts of this state have been exceedingly liberal in recognizing and enforcing rights acquired under the laws of other states, and even of foreign countries. Teel v. Yost, 128 N. Y. 394, 28 N. E. Rep. 353. If there is any one of our statutes that may be said to represent a distinct policy of the state, it is that regulating the rate of interest on money. Usury is a vice that avoids contracts into which it enters, and subjects the party receiving it to indictment; and yet it is the settled law that a note, made by citizens of this state here, payable to a citizen of another state, at a rate of interest that would be unlawful here, but is lawful there, will be enforced by our courts, in favor of the holder in another state, and that, too, though the note was payable here, it having been given in renewal of a note, upon which the same parties were liable, made and payable in the other state. In such cases we give effect to the foreign law though contrary to our own, because it is the law that governs the contract. Staples v. Nott, 128 N. Y. 403, 28 N. E. Rep. 515. A rule which prescribes that the formal requisites and construction of a will and the testator's capacity are to be determined by the laws of one state, and the validity of his dispositions of personal property by the laws of some other state or country, would be exceedingly inconvenient and uncertain, and no sound principle or decisive authority requires us to sanction it. All these questions should be determined by the same law. Effect should be given to this, like every other will, if that can be dore without disregarding legal rules, and we think it can. Every right that

any party acquired under it by the law of the domicile, ought, in justice and by comity, to be respected here. That law declares these trusts valid, and it is binding upon us by that comity which is part of our municipal law. The other view would not only defeat the intention of the testatrix, but would be contrary to justice and sound policy. Our statute relating to the suspension of the absolute ownership of personal property applies to dispositions made within our own jurisdiction, and, when it is deemed wise to extend it to such a case as this, the lawmaking power, and not the courts, should do it. It may be doubted whether the corporate powers conferred upon the trustee in this case are broad enough to authorize it to execute a trust created as this was. Laws 1853, c. 204; Laws 1863, c. 60. But though that question has come in, incidentally, on the argument, it is not properly before us. This is not an action to remove the trustee. There is no allegation in the complaint that it is incompetent to act, and no relief is asked on that ground. There is no finding, or request to find, on that subject. The want of corporate capacity in the trustee to act would not be fatal to the trust. The proper court would not allow the trust to fail because the trustee is disabled, but would appoint a new one. Perry, Trusts, (4th Ed.) § 38. While not assenting to all the reasons for the decision contained in the numerous opinions below, our conclusion is that the judgment is right, and should be affirmed, with costs. All concur, except EARL, C. J., and PECKHAM, J., dissenting.

(131 N. Y. 239)

In re SMITH et al. (Court of Appeals of New York. March 1, 1892.) CONSTRUCTION OF WILL-RIGHTS OF LEGATEESTRUSTS.

1. A testator bequeathed money to his executors, in trust to invest the same, and pay the proceeds in monthly installments to the testator's son for his support and the support of his daughter during her minority. The will also provided that, if the son's said daughter should survive her father, then she should have half of said money; the other half to go elsewhere. Held, that the trust continued during the son's life, although he survived his said daughter.

2. A testator who had six grandchildren bequeathed $10,000 "to each of [his] grandchildren, to be paid to them on their severally attaining the age of 25 years," and also provided that "in the event of the decease of either of said grandchildren prior to attaining the age of 25 years, the share of such deceased shall be equally divided between the surviving grandchildren." Held, that grandchildren born after the testator's death took no share in the legacy of a grandchild who died before attaining the age of 25 years.

12 N. Y. Supp. 105, and 14 N. Y. Supp. 947, mem., affirmed.

Appeal from supreme court, general term, fifth department.

Accounting of J. Moreau Smith and another, as executors of the will of Lewis R. Herrick, deceased. The general term affirmed the decision of the surrogate. Richard P. Herrick and his two infant children appeal. Affirmed.

framing his will either did not have grandchildren who might be born after his death in mind, or that he did not intend to provide for them. In the gift over of the trust fund in the event of the death of Richard before the death of his daughter, Emma, he gives one moiety to Emna and the other moiety to the testator's daughters, making no provision whatever for any children Richard might have who should be born after the testator's death. Richard was then a young man, and his remarriage was probable, and did in fact occur. This omission is quite significant that the testator did not intend in the gift over of Enima's legacy on her death before 25 that brothers or sisters who might be born after his death should share in the distribution. We think the judgments below on this point follow the natural and reasonable interpretation of the will, and that the two children of Richard, born after the testator's death, are not entitled to any share of the legacy given to their half-sister, Emma. There are some other questions which arose on the accounting. They are fully considered in the opinion of the surrogate, and, we think, were corrcetly decided. We discover no error in the judgment, and it should therefore be affirmed. All concur, except EARL, C. J., and PECKHAM, J., not voting, and MAYNARD, J., absent.

(131 N. Y. 227)

LAMB et al. v. FORSYTH et al. (Court of Appeals of New York. March 1, 1892.) CONSTRUCTION OF WILL-ESTATE DEVISEDRESIDUARY LEGACY.

A testator, after making several devises, declared that "of the rest, residue, and remainder of my estate I give and bequeath" several legacies, and that "if, after the payment of all these legacies, there should remain a surplus undisposed of, I do give and bequeath the same unto my sons." Held that, under such residuary bequest, the sons would take land which had been specifically devised for life, with remainder to the life-tenant's children, where such lifetenant died without issue. 14 N. Y. Supp. 206, affirmed.

Appeal from supreme court, general term, first department.

Action for partition brought by Clara A. Lamb and others against Samuel Treat Lamb, Mary C. Forsyth, and others. From the affirmance by the general term of an interlocutory judgment entered on report of a referee, Mary C. Forsyth and others appeal. Affirmed.

William B Hill, for appellants. George F. Martens and Alfred B. Thacher, for respondents.

ANDREWS, J. Anthony Lamb, a resident of the city of New York, died in May, 1855, leaving a widow and five children surviving him, and the issue of four daughters who had died before him. He left a large real and personal estate. By his will he devised specifically each part of his real estate, and bequeathed various legacies and annuities. By the second clause of his will he gave to his wife a life-estate in certain lots in the city of New York, and following the gift of the life-estate are the words: "And the remainder in fee I give

and devise to certain of my descendants, as hereinafter mentioned. By the sixteenth clause he disposed of the lands, wherein a life-estate was given to his wife, to four of his children, as follows: Two of the lots to his son John in fee-simple, two to his daughter Agnes Richards for life, and at her death to her descendants then living, and two to his daughter Sarah (then about 40 years of age and unmarried) for life, and the remainder as follows: "And should she marry and have children, I give and devise said lots at her decease to her descendants then living, if more than one, to be divided among them in the same manner as if she had died seised of the same intestate, but, if only one, then the whole to such only descendant." The daughter Sarah married after the death of the testator, and died September 3, 1886, childless. The widow of the testator died in October, 1889. This controversy relates to the lands devised to Sarah in the sixteenth clause of the will. It is claimed on the part of the appellants that upon her death without issue the lots descended to the heirs at law of the testator as in case of intestacy, subject to the life-estate of the testator's widow. It is claimed on the part of the respondents that on the death of Sarah the fee of the lands passed under the twenty-third clause of the will to the testator's sons, John, George, and Anthony, and his daughter Agnes, as a part of his residuary estate. The construction of this clause is the only point in controversy; that is to say, whether the residuary clause relates to personalty only, or includes as well lapsed devises, and any interests in realty not effectually disposed of in other parts of the will. The devises and legacies are contained in the clauses of the will preceding the twentysecond. In some cases the devises to his children and grandchildren are in fee; but the general scheme of the testator was to create a life-estate in the first taker, with remainder to his descendants living at his death. The devise to his son John of a lot on Pearl street, in the third clause; to his son George of lots on Third and Fourth streets, in the fourth clause; the devise in trust for the benefit of his son Anthony, in the seventh clause; to the children of his deceased daughter Matilda, in the eighth clause; and the devises in the sixteenth clause to his daughters Agnes and Sarah, already mentioned,-were framed on this principle. All the living children were married and had issue at the death of the testator, excepting the daughter Sarah and the son Anthony. In all devises of the character referred to, the final vesting of the fee under the will depended upon the contingency of the life-tenant leaving descendants surviving him at his death. In the event of the death of any life-tenant without leaving issue or descendants, the fee was undisposed of, unless it passed under the residuary clause. The scope of the residuary clause is, as we have said, the turning point in the case. The twentysecond clause of the will commences as follows: "Twenty-secondly. Of the rest, residue, and remainder of my estate I give and bequeath," etc.; and then follow bequests of sundry pecuniary legacies to chil

ever may fall into the residue by lapse, invalid disposition, or other accident." The contention here is that the residuary clause is not general, but special, and refers to personalty only, and that the pe

The construction of residuary clauses in wills has been frequently before the courts. Where the language is free from obscurity, then, of course, there is no difficulty. The intention of the testator is to be followed if the actual intention is discoverable from the language employed. There is no rule of law which prevents a testa cor from restricting the operation of a residuary clause to a particular or specific residue. He may make the residuary clause general and comprehensive, so that it shall carry any residue, whether of personalty or realty, or both, or he may contine its operation to property of a particular class or to a particular interest. But, where the language of a residuary clause is ambiguous, the leaning of the courts is in favor of a broad, rather than a restricted, construction. It prevents intestacy, which it is reasonable to suppose testators do not contemplate, and, if the mind is left in doubt upon the whole will as to the actual testamentary intention, a broad, rather than a strict, construction seems more likely to meet the testamentary purpose, because such a clause is usually inserted to provide for contingencies or lapses, and to cover whatever is left after satisfying specific and special purposes of the testator manifested in the other clauses of his will. The court in Floyd v. Carow, 86 N. Y. 560, in considering the construction of a resid uary clause in a will, said: "The intention of the testator to restrict the operation of the residuary clause cannot be deduced from the mere absence of words in the will directing that a particular interest or estate upon which the residuary clause is claimed to operate was in the contemplation of the testator when the will was made, or from the fact that the reversion was a mere expectancy, dependent upon the failure of issue or other improbable contingency. A general residuary devise carries every real interest, whether known or unknown, immediate or remote, unless it is manifestly excluded. The intention to include is presumed, and an intention to exclude must appear from other parts of the will, or the residuary devisee will take. And in Riker v. Cornwell, 113 N. Y. 115, 20 N. E. Rep. 602, GRAY, J, said: “I think the doctrine is firmly established, by the reports of cases and the text-books, that where the residuary bequest is not circumscribed by clear expressions in the instrument, and the title of residuary is not narrowed by words of special and of unmistakable import, he will take what

appropriate legal language throughout the instrument; and it is insisted that the language of the residuary clause should therefore have a strict construction, and that words therein should be deemed to have been used in their exact legal sense. The will indicates that it was drawn by a competent and experienced draughtsman. The words, "I give and devise, are used in all cases (except one) where the will disposes specifically of real property, and the words, "I give and bequeath," in dispositions of personalty, and the use of these phrases is frequent. In the gift of life-estates to the tes tator's wife, the words are, "I give and bequeath," which is the exception. The inappropriate use of the words" devise" or

bequeath" is not generally a very material circumstance, as they are often used in-. differently in wills. O'Toole v. Browne, 3 El. & Bl. 572; Allen v. White, 97 Mass. 504. But their accurate and discriminating use in a will containing many provisions has doubtless some significance. But the intention of the testator to dispose of all his estate by his will is quite manifest. In respect to the lands einbraced in the second clause, already adverted to, he first carves out a life-estate in several pieces of property for his wife, and then says: "The remainder in fee I give and devise to certain of my descendants, as hereinafter mentioned." By the sixteenth clause, remainders in these parcels are given as above stated. The remainder to the children of Sarah was contingent upon her marriage and the birth and survival of issue, and in the event, unless the fee passed by the residuary clause, it did not pass under the will. It is possible that the testator did not contemplate that the remainder would fail for want of issue of his children. But this would not prevent their inclusion in the residue, if the words of the residuary clause are broad enough to comprehend them. The words are not to be narrowed upon the suggestion, although plausible, that the testator did not anticipate that any of his devises would lapse.

The learned counsel for the appellants in his argument places great stress upon the word 'surplus" in the twenty-third clause. The language of the residuary gift, "if after the payment of these lega. cies there should remain any surplus undisposed of, I give and bequeath the same unto my sons, John, George, and Anthony, and to my daughter Agnes," etc., refers, it is claimed, to a surplus remaining after paying thereout the legacies given in the twenty-second clause, ascertainable on the settlement of the estate by the executors in the usual course of administration, and has no reference to contingent interests in land, which may fail by the non-hap. pening of the event upon which they are limited. The word "surplus" in the twentythird clause relates to what remains of the "rest, residue, and remainder of my estate,'