¶1I do not concur with Mr. Justice Clarke in his construction of the will here involved, as there is a clear distinction between this will and the will construed in Swarthout v. Ranier (143 N. Y. 499). In this case the gift was to his wife while she lived and remained unmarried, and at her death or remarriage she is given a power to apportion “ the residue,” by which I think is meant the *326remainder, to his children. The will in Swarthout v. Ranierwas quite different. By that will the testator gave all his property, real and personal, to his wjfe, to have and to hold for her comfort and Support, if she needed the same, during her natural life. I. think there is in this will a clear intention to give to the wife of' the testator a life estate in his property, real and personal, with a power to appoint the remainder among his children as she should deem proper. There was no power of sale in this will, and no indication ' that the testator intended that his real estate should be disposed of ' during the life of his wife and the proceeds used for her support.'. Assuming that my construction of this will is "not correct, however, I agree with Mr., Justice Clarke that, the defendant should not be compelled to take the title, and, therefore, concur with him. in a •direction of judgment for the defendant.
¶2Judgment for defendant, with costs.