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drawn by a layman. He left no real property, and his estate consisted wholly of personal property. The said will was thereafter, ani on the 12th day of February, 1883, duly proven and admitted to probate as a will valid to pass real and personal property by a decree of the Surrogate's Court of the county of Steuben made and entered that day, and on said date letters testamentary thereon were duly issued by and out of said court to Silas A. Price and Eli Allison as executors and trustees, who were named in said will as such and they thereupon entered upon the discharge of their duties as such executors and trustees. The inventory of the estate of said William J. Lazear, made by his executors and duly filed in said surrogate's office, showed that the said personal estate was of the value of about $18,000, of which a little over $17,250 consisted wholly of notes and mortgages, and that about $750 only consisted of money and a few articles of tangible personal property. The only next of kin and heirs at law who survived the said testator were Cornelius G. Lazear, his son, and Mrs. Frank Swarthout, the daughter of a deceased daughter of the said testator. The said deceased daughter of the testator was Mrs. Eli Allison. The testator never had any other children than Cornelius G. Lazear and Mrs. Eli Allison. At the time of testator's death, the said Cornelius G. Lazear had one child, named William J. Lazear, and called William J. Lazear, 2d, who was the grandson of the testator. At the time the testator made his said will, and at the time of his death, the ages of said testator, Cornelius G. Lazear, Mrs. Frank Swarthout, and William J. Lazear, 2d, were, respectively, 70, 43, 16, and 12 years. The said Frank Swarthout, at the time the said will was made, and at the time of testator's death, was the wife of said Minor E. Swarthout and the daughter of said Eli Allison and Mrs. Eli Allison aforesaid. The said Frank Swarthout was married to the said Minor E. Swarthout in the fall of 1882. The said Frank Swarthout died November 13, 1891, being then over 18 years of age, and leaving, her surviving, no child or children or descendant, no brother or sister, but only her husband, Minor E. Swarthout, and her father, the said Eli Allison. Her said father was her sole heir at law. The said Frank Swarthout left a last will and testament, bequeathing all of her personal property to the said Minor E. Swarthout, her husband, which will was shortly thereafter duly proven and admitted to probate as a will vaid to pass personal property, by a decree of the Surrogate's Court of the county of Steuben duly made and entered; and in and by said will the said Minor E. Swarthout was named as sole executor thereof, and at the time the said will was probated letters testamentary thereon were duly issued by and out of the said Surrogate's Court to the said Minor E. Swarthout, and he thereupon became, and ever since has been, the sole acting executor thereof. The said William J. Lazear, 2d, died in Denver, Colo., on July 19, 1906, intestate, and leaving no child or children surviving him, but leaving his widow, the said Nellie Lazear, and leaving, as his sole next of kin and heir at law, his father, the said Cornelius G. Lazear. Thereafter, and before the 29th day of December, 1906, the said Marvin Price was duly appointed as administrator of the goods, chattels, and credits of the said William J.

Lazear, 2d, by a decree of the Surrogate's Court of the county of Steuben duly made and entered. The said Eli Allison died intestate May 31, 1906, at said Town of Wayne, leaving, him surviving, no descendant, widow, or parent, but leaving, him surviving, as his sole next of kin and heirs at law, his brothers, Charles S. Allison and William Allison, and his sisters, Mrs. Whitehead, Mrs. Salt, and Mrs. French; the wife of said Eli Allison having died prior to the time of the death of said testator, William J. Lazear. Shortly after the death of said Eli Allison the said Charles S. Allison was duly appointed by this Surrogate's Court as sole administrator of the goods, chattels, and credits of said Eli Allison, deceased, and thereupon duly qualified, and letters of administration on said personal estate were duly issued to him, and he has ever since been acting as such administrator.

At the time the said William J. Lazear, the testator, made his said will, and at the time of his death, he was residing with the said Eli Allison at the latter's home in the town of Wayne, Steuben county. N. Y., and the said William J. Lazear had made his home with said Eli Allison for three or four years next preceding the time of his death. In the fall of 1882, at the time of the marriage of said Frank Swarthout to Minor E. Swarthout, the family of said Eli Allison consisted of said William J. Lazear, the testator, said Frank Swarthout, said William J. Lazear, 2d, and Eli Allison; and the said William J. Lazear, the testator, and William J. Lazear, 2d, his grandson, continued to reside with said Eli Allison at his said home up to the time of the death of said testator, William J. Lazear. At the time the will of said William J. Lazear was made, his son, Cornelius G. Lazear, was living in New York or Brooklyn, and he had been living away from his father, William J. Lazear, the said testator, from in or about the year 1876 or 1877, and the said Cornelius G. Lazear had been leading somewhat of a dissipated life, which was known to his said. father, and he did not have any property to speak of at the time the said will was made, and had practically been out of business for several years before, and apparently had not succeeded in business, but had lost money in business. He had lived in different places, and at the time he was living in New York he had not been in any business that amounted to anything. While the said grandson, William J. Lazear, 2d, resided with the said Eli Allison as aforesaid, the said testator. William J. Lazear, paid said Eli Allison for his said grandson's board and lodging. On the 21st day. of April, 1884, the said Surrogate's Court made and entered a decree in proceedings commenced by Silas A. Price and Eli Allison, as such executors, to judically settle their account as such executors, in and by which decree it was adjudged that the said executors had on hand $8,050 of said trust estate, and they were directed to hold the same pursuant to the terms of said will, as trustees therein named, and were then discharged and released from all other obligations and liabilities as such executors. Thereafter, and in . or about the year 1893, a decree was made by said Surrogate's Court, in proceedings brought therein for that purpose, whereby the account of said Silas A. Price, as such trustee, was judicially settled, and his

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resignation as such trustee was duly accepted, and he then ceased to act as such trustee, and the said trust funds of $8,050 were paid over and transferred to the said Eli Allison, his co-trustee, and thereafter, and until the time of the death of said Eli Allison, on the 18th day of May, 1906, the said Eli Allison continued to act as sole trustee under said will of William J. Lazear, deceased. No trustee of said trust fund has been appointed to fill the vacancy caused by the death of said Eli Allison.

The following is a copy of so much of the will of William J. Lazear, deceased, as disposes of his property:

"After the payment of my just debts and funeral expenses, I give, devise, and bequeath to my son, Cornelius G. Lazear, and my grandson, William J. Lazear, the use of notes and mortgages as follows: [Here are enumerated certain notes and mortgages]-being about $8,200.00; and I hereby appoint Silas A. Price and Eli Allison trustees to hold the above notes and mortgages, and they shall reinvest the same, when they shall be paid, to the best advantage. and shall collect the interest and pay it as follows: One-fifth to my son, Cornelius G. Lazear, and four-fifths to my grandson, William J. Lazear. The said interest for my grandson shall be paid for his support and education until he is twenty-one, after that go to him direct. This interest shall be paid annually during their natural life. At the death of Cornelius G. Lazear, the whole of said interest shall be paid to William J. Lazear, and at his death the principal shall be paid to the children of said William J. Lazear, if he shall have any; if not, it shall be paid to my granddaughter, Frank Swarthout, or her heirs.

"Second. I give, devise, and bequeath to my granddaughter, Frank Swarthout, the balance of my mortgages and notes, which is in amount equal to that given to my son and my grandson.

"Third. If there shall be anything left of my personal property in the shape of money or notes, other than mortgages and notes, it shall be equally divided between the three above described."

Charles S. Allison, as administrator, etc., claims that the principal of said trust fund belongs to him as such administrator. Minor E. Swarthout claims that the principal of said fund belongs to him as such executor of the last will and testament of his wife, Frank Swarthout, deceased, and to him as sole legatee under said will. Cornelius G. Lazear claims that the principal of said trust fund belongs to him by operation of law; that is, because he was at the time of the death of William J. Lazear, 2d, the then sole heir at law of Frank Swarthout, deceased. Neither Nellie Lazear nor Marvin Price, as administrator, claim any interest in said fund. Cornelius G. Lazear claims that the remainder in said fund did not vest at the death of the testator, but that it was a contingent remainder, and vested at the death of William J. Lazear, 2d, in the person who was then the surviving heir at law of Frank Swarthout; and Cornelius G. Lazear claims that, inasmuch as the remainder did not vest until the death of William J. Lazear, 2d, and Frank Swarthout died before William J. Lazear, 2d, and her father, Eli Allison, who survived her, having also died before William J. Lazear, 2d, then the only heir at law of Frank Swarthout, at the time of the death of William J. Lazear, 2d, was Cornelius G. Lazear, as he was the brother of the mother of Mrs. Frank Swarthout. Charles S. Allison, as administrator, claims that the said remainder vested at the time of the testator's death in Mrs. Frank Swarthout, who survived the

testator, subject, however, to be divested from her, in case she failed to survive William J. Lazear, 2d, and in any event to be divested if William J. Lazear had children. Minor E. Swarthout, as executor and individually, claims that the said remainder vested at the death of the testator absolutely in Mrs. Frank Swarthout, subject only to be divested by William J. Lazear having children, and he claims that the fact that Mrs. Frank Swarthout died before William J. Lazear, 2d, of itself did not divest her of said remainder, but that she could alienate the same by gift, sale, or by bequest, so that her alienee would take the title to the same, subject only to the contingency that William J. Lazear, 2d, had children. It is conceded that William J. Lazear, 2d, never had any children. Consequently that contingency need not be considered in discussing the claim of Charles S. Allison, as administrator, or Mr. Swarthout, as executor, etc.

We will first consider the claim of Cornelius G. Lazear. There are several cardinal rules in the construction of wills, which may be referred to in the discussion of the several questions involved, viz.: The intention of the testator, which is to be derived from the language of the will itself, and which is to be interpreted in the light of surrounding circumstances, is the controlling element in the construction of wills, and, so far as the same can be ascertained in accordance with the rule stated, shall be taken into consideration and carried into effect. Byrnes et al. v. Stillwell et al., 103 N. Y. 458, 9 N. E. 211, 57 Am. Rep. 760. Aid may be sought from the situation and the relation of the parties. Matter of Russell, 168 N. Y. 174, 61 N. E. 166. The law favors the vesting of estates. Stokes v. Weston et al., 142 N. Y. 433, 37 N. E. 515. The remainder shall not be considered as contingent in any case where, consistently with the intention of the testator, it may be construed as vested. Hersee et al. v. Simpson, 154 N. Y. 496, 48 N. E. 890; Connelly v. O'Brien, 166 N. Y. 408, 60 N. E. 20. The rule is that where a person or persons to whom, or the event upon which, the estate is limited to take effect, remains uncertain until the termination of the life estate, the remainder is contingent. Clark v. Cammann, 160 N. Y. 327, 54 N. E. 709. If, when the will goes into effect, there is no contingency, either as to the person entitled in remainder or as to the event by which the intermediate estate is to be determined, then the remainder is vested. Van Axte v. Fisher et al., 117 N. Y. 403, 22 N. E. 943. If the postponement of the payment is for the purpose of letting in an intermediate estate, then the remainder shall be deemed vested at the death of the testator, and the class of legatees is to be determined as of that date, for futurity is not annexed to the substance of the gift. Matter of Crane, 164 N. Y. 71, 58 N. E. 47. The word "heirs," when applied to the succession of personal property, means next of kin. Tillman, as Ex'r, v. Davis et al., 95 N. Y. 17, 47 Am. Rep. 1; Drake v. Pell, 3 Edw. Ch. 251; Wright v. M. E. Church, Hoff. Ch. 202. The words "and heirs" are words of limitation, and not of purchase. Thurber v. Chambers, 66 N. Y. 42; Matter of Allen, 151 N. Y. 248, 43 N. E. 554; Matter of Wells, 113 N. Y. 396, 21 N. E. 137, 10 Am. St. Rep. 457. The words "or heirs" may be construed as "and heirs," and the words "and heirs" may be construed as "or

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heirs," in order to effectuate the apparent intention of the testator. Miller. v. Gilbert et al., 144 N. Y. 74, 38 N. E. 979; Roome, as Adm'x, v. Phillips, 24 N. Y. 468; Davidson v. Jones, 112 App. Div. 255, 98 N. Y. Supp. 265; Matter of Smith's Estate (Sur.) 11 Ñ. Y. Supp. 783; Jackson v. Blanshan, 6 Johns. 56, 5 Am. Dec. 188; Miller v. Caragher, 35 Hun, 485. The words "then to pay after the termination of the life estate" do not mean a gift in futuro, but a present gift, and vest the remainder upon the death of the testator, but postpone the enjoyment of the gift until the death of the life tenant. Roosa v. Harrington, 171 N. Y. 341, 64 N. E. 1. The books are full of authorities holding that the words "when," "then," "after," "hereafter," and "upon" do not mean that the vesting of a remainder is postponed, but the enjoyment of the remainder is postponed by the use of said word.

The general rules for the construction of wills are not controlling. They are but aids to the construction, and, where the language of the will itself is reasonably plain, or not obscure, recourse to these rules is not necessary. They are simply to aid in ascertaining the intention of the testator, when considering the language of the will, and the relation and situation of the testator, and the parties affected. As stated in Matter of Russell, supra, aid may be sought from the situation and the relation of the parties. It is clear, from the reading of the will in question, that the testator only intended to give his son, Cornelius G. Lazear, the use for his life of one-fifth of one-half of all his notes and mortgages, and to his grandson, William J. Lazear, 2d, the use for his life of four-fifths of one-half of all his notes and mortgages, and that he did not intend that either should ever have any portion of the principal of his notes and mortgages; and it appears that at the time he made this will all of his estate, with the exception of about $750, consisted of bonds, notes, and mortgages, and that the residuary clause of said will would not have carried to exceed $750 of personal property, so he practically excluded his son and his grandson from any enjoyment of his estate, except the incomes above stated. His son, it appears, had not been successful in business, was practically insolvent, and had not resided with him in many years. His grandson was about 12 years of age, and his father apparently was not supporting him, but the testator was supporting him at the home of Eli Allison; and it is evident that the testator did not consider it prudent or wise to intrust either his son or his grandson with the ownership of his estate, and that it was wise that about one-half of the same should be placed in trust for their use and benefit, and so placed that they could not disturb or waste any of the principal. So by a plain reading of the will, in connection with the position and relation of the parties, it is apparent that he did not intend his son, Cornelius G. Lazear, or his said grandson, ever to receive any of the principal, except possibly a small share in the residuary estate of $750.

The fact that the will provides that upon the death of William J. Lazear, 2d, without children, the principal of said trust fund "shail be paid," etc., does not mean that the vesting of the said remainder was postponed, but that the enjoyment of the same was postponed. Roosa v. Harrington, supra, and many other cases. The remainder