THORN1'ON V. BRIT'fON.
natural daughter of his son Nelson, subject to iimitation. as expressed in the will. Defendants claimed title under conveyance from the surviving husband of Eliza Ann. The cause was tried before Acheson, D. J., and the court submitted to the jury the question whether Eliza Ann dipd under or over the age of 21 years, and on this issue the jury found for the plaintiff, to-wit, that she died under the age of 21 years. The defendants claimed that by the residuary clause of Joseph Thorntorn's will the estate of Eliza Ann, in the land devised to her, was enlarged to a fee, and that upon her death the same descended to her hUBband, under whom defendants held. The provisions of the will are set out in the opinion of the court. George Shiras, Jr., and D. Kaine, for the motiOn. O. E, Boyle, G. W. Minor, and R. B. Petty, contra. ACHESON, D. J. The only ground urged in support of the motion for a new trial is the supposed erroneous instruction of the court in respect to the estate which Eliza Ann Thornton took in the tract of land in controversy under the will of Joseph Thornton, deceased. The testator devised this land to Eliza Ann, the natural daughter of his son Nelson, with this proviso: "Provided, that should the said Eliza AIm die in her minority, and without lawful issue then liVing, the land hereby devised shall revert and become part of the residue of my estate hereinafter disposed of," This devise has been twice considered by the supreme court of Pennsylvania. In Thornton's Executors v. Krepps, 87 Pa. St. 393, that court held that the estate devised to Eliza Ann"Is a/fee-simple, subject to an executory devise; that is, a oonditional limitation by will, which defeats it and substitutes another estate in its stead, if the devisee should die both under age and'without issue then living," More recently, in the unreported case of Britton v. Thornton, the same court held that. "As to this particular tract of land, the estate of Eliza Ann clearly became extinct, by the terms of the will itself, at the time Qf her death without issue." That this is the true construction of the devise, looking alone to the terms of the above-quoted proviso, is too plain for argument. But it is strenuously insisted that this proviso is modified by, and lIlust yield to, the subsequent provisions of the will contaiJ?ed in the residuary clause, in view of the admitted fact that the testator's son Will· iam died before Eliza Ann, to-wit, in the year 1852. The residuary clause begins thus: " Item: All the rest and residue of my estate, not hereinbefore disposed of, I give, devise, and bequeath to my executors."
Then, after authorizing his executors to sell any of his real estate "not herein fully disposed of," it proceeds:
.. It is my will that the rents, issues, and profits of the reit! estate given to my executors, or the proceeds thereof if sold, and the dividends of all my stocks given.to them, or the proceeds if sold, and the proceeds of all other persopal estate not required to pay debts and legacies hereinbefore given, be invested by my executors in· stock, or put out at interest, and suffered to accumulate until my eldest grandchild then living shall attain the age of 21 years, or until the decease of my SOil William, whichever shall first occur, and then the whole to be equally divided among all my grandchildren then living, and children of any who may be dead leaving issue, such issue to take by represf'ntation. The said Eliza Ann, natural daughter of my son Nelson, to be considered a grandchild, and to be entitled to share as such. And in making such division, the amount of the devises made to Joseph, son of my son William, and to the said Eliza Ann, according to an estimate of their present vallIe; to be made by three men appointed by my executors, or by the orphans' cOurt, to be charged to them or their children as part of their respective shares."
! Now, in construing the recited Clauses, regard must be had to the fundamental principle that every part of the will is to take effect if possible. Says Mr. Jarman, (1 Jal';on Wills, 415,416:)
"But the rule which sacrifices the former of several contradictory clauses is never applied but on the failure of every attempt to give ihe whole such a construction as will render every part of it effective."
It is said in Sheetz's Appeal, 82 Pa. St. 213: " 'rhe clearly-expressed purpose of the testator is not to be overborne by modifying directions that are ambiguous and equivocal, and may justify either of two opposite interpretations. Such directions are to be so construed as to snpp.qrt. the testator's distinctly-announced main intention."
Here the devise to Eliza Ann Thornton of the tract of land in controversy principal provision which the, testator ma,l}e for her. and his distinctly-announced intention in respect thereto was that in case she. should die in her minority, and without lawful issue then living, the land so devised should revert and become part of the residue of his estate. What is there in the residuary clause which imperatively requires that the testator's intention thus plainly declared should be overthrown? Wherein is there any repugnancy the terms of the proviso to the particular devise to Eliza Ann, ftnd the directions contained in the residuary clause? It is quite plain that the residuary elause has relation primarily to those portions of the estate not disposed of by the previous provisions of the will. The .income therefrom was to accumulate until the testator's eldest living grandchild should attain the age of 21 years, or
IN RE STRENZ.
until the death of his son William, whichever should first occur, and was to be made; Eliza Ann to\>e cousii,lered then the be entitled to share as such. in making the division the land devised to Eliza Ann was to be valued and '(jhaiged to her. But why? Clearly to end that the testator's othergrandchill1ren might be made equal with Eliza Ann before she received any part of the residuary estate then to be distributed. The fallacy of the argument of the learned counsel for the as seems to me, lies in the assumption that, upon the death of thetestator's son William, in the year 1852, the tract of land devised to Elizb. Ann fell into the residue and passed under the residuary Notilo.The special deyise t.o her still remained in full force, and the valuation directed to be made was merely for the purpose of determining whether she was entitled to receive anything more out of the testator's estate. Eliza Ann took. this tract of land not at all by virtue of the residuary clause, but under the special devise thereof, and subject to the conditional limitation expressed in the proviso Already quoted. ." The land was to revert and' become part of the residuary estate only in case she should die in her minority:andwith;' out lawful issue then living, and when she so died. Dying J,a.n'l1ary 23,1857, under age, as the jury haveiound, and without tile land thereupon reverted and became part of the residuary estate; ·b.ut Eliza Ann being dead, and havingJeft no issue,the land went to the other beneficiaries entitled under the, residuary Clause, 'viz.: the testator's grandchildren .then living·. And now, July 16, 1881, the motion for a newtrialis denied) and it is ordered that judgment,in favor of the plaintiff be entered on'the 'Verdict. '
BANKRUPTCy-SALE OF STOOK.
(DistritJt Court, 8. D. New York.
June 28, 1881.)
A sale by a bankrupt tr!tder of his stock, for its full in theabscnceof all frauduh-nt intent, cannot be impeached. 2. SAME-t;AME-HEV. ST. §,51,29. Such a sale cannot be attacked by an assignee in bankruptcy within lJix months afterwards, under section 5129 Of the H.evised Statutes. . .. 3. ·REv. ST. suriD.9,§ 5110, . Nor cau it be attacked under subdivision 9, § 5110.