and 121 New York State Reporter The only other item in dispute is that of $88 paid by the executor to Joseph Breaznell for legal services. It clearly appears that, in the service for which he was paid this sum, Breaznell was employed by Stewart A. Robinson, the executor of the Stewart will, before referred to; and Breaznell testified that whatever he did with reference to the settlement was performed for the executors of the Stewart estate, and not for the estate of Northup, and that the attorney for this executor "left the closing to me, for I was acting for Stewart A. Robinson, * * * and I represented the Stewart estate only on this settlement." The learned surrogate was, we think, quite correct in holding that the executor's account should be surcharged with this item, for it appears to be paid for legal services to a lawyer who was representing adverse parties. This discussion leaves but one further matter to notice. Dwight Northup, the eldest son of Daniel W. Northup, deceased-a child by the latter's first wife, and a legatee and residuary beneficiary named in the will-has appealed from the decree of the surrogate, and makes the point that the claims for compensation for services which existed in favor of the deceased in his lifetime against the Stewart estate and Vosburgh passed to him under the will, and hence the appealing executor properly has had nothing to do with their collection, and no obligation rested upon it to exercise any degree of care or diligence in respect thereto. It is very clear that Dwight Northup, appellant, and the executor, appellant, have adopted this view of the will but recently, and we think their former notion in respect to it was correct. The third clause of the will reads as follows: "Thirdly. I give and bequeath to my son Dwight all my law business, lawbooks, papers, safe, bookcases and office furniture, and all property pertaining to my business. Also my stock certificate in the Brooklyn Law Library, and the Ten Shares of Stock in the Lawyers' Title Insurance Company now pledged to the Company." The person named in that clause asks us to hold, as matter of law, that the two claims for legal services existing against the Stewart estate and against Vosburgh passed to him by reason of that clause. These debts were not mentioned in the clause, and it is impossible for the legatee named therein successfully to claim them, except on the theory that it was a devise by implication. It is said, however, that a gift by implication will only be adopted where the probability of such intention is so apparent that the contrary cannot be supposed to exist. Post v. Hover, 33 N. Y. 593. There is here nothing to support a claim for such contrary intention. The son, Dwight, had not been admitted to the bar at the time of the preparation of the will, and was not admitted until some considerable period of time after his father's death. There is nothing to indicate a reason for any purpose in the mind of the testator to devise choses in action by language which describes choses in possession. The last will and testament of the deceased, Northup, was prepared by himself, a lawyer of large experience, and it may be presumed that he knew the effect generally of omitting to describe property the subject of devise. Walter v. Ham, 68 App. Div. 381, 383, 75 N. Y. Supp. 185. Matter of Reynolds, 124 N. Y. 38S, 26 N. E. 954, is an authority against the con tention of Dwight Northup upon this proposition. The testator there devised and bequeathed to his son certain real property upon which there were buildings, "including all the furniture and personal property in and upon the same, or in any manner connected therewith." The testator's office was on the property so devised, in which there was a vault containing money and securities, found upon his death. The Court of Appeals held that these securities were not bequeathed to the son under the provisions of the will, and Judge Parker, speaking, said (page 397, 124 N. Y., and page 956, 26 N. E.): “We have now referred to the cases cited by the learned counsel for the appellant in support of his contention, and it will be observed that in every case, excepting Hotham v. Sutton and Michell v. Michell, in which the court held that the general words preceding or following enumerated articles should not be limited to things ejusdem generis, they either occurred in a general bequest of the whole of testator's estate in a residuary clause, or the will did not contain a residuary disposition. With the exceptions thus noted, it seems to be a settled rule of construction that when certain things named are followed by a phrase which need not, but might, be construed to include other things, it will be confined to articles of the same general character as those enumerated. Johnson v. Goss, 128 Mass. 434; Dole v. Johnson, 3 Allen, 364; Spark's Appeal, 89 Penn. 148 [33 Am. Rep. 740]," The surrogate directed that the costs and expenses of this proceeding should be borne by the executor personally, and it is asked that we modify the decree so that it may be relieved of this burden. It was in the discretion of the learned surrogate whether the executor should be charged personally, and, unless there has been an abuse. of that discretion, we may not interfere. Matter of Selleck, 111 N. Y. 284, 19 N. E. 66. We are not convinced that the surrogate abused his discretion. As far as the Vosburgh and the Stewart matters were concerned, the executor has acted with great laxity and almost inexcusable negligence, although there is no intimation of any improper motive. Generally speaking, an executor will be directed personally to pay the costs where he denies assets, and they appear. Estate of Mull (Sur.) 2 N. Y. Supp. 23. The decree of the surrogate is in all respects proper, and should be affirmed. Decree affirmed, with costs. All concur. (92 App. Div. 532.) LEWISOHN et al. v. HENRY et al. (Supreme Court, Appellate Division, First Department. March 25, 1904.) 1. WILLS-CONSTRUCTION-PUNCTUATION-CONSIDERATION. Where a will is not punctuated with any degree of accuracy, or even systematically, the punctuation is of little value as an aid to its true construction, and must otherwise be disregarded if it is in conflict with the testamentary scheme as gleaned from the provisions of the will, or prevents ascribing to its words their ordinary meaning. 2. SAME-INTEREST IN TRUST FUND-TIME OF VESTING ABSOLUTELY IN BENEFICIARY. A testator directed the remainder of his estate to be divided into equal shares corresponding to the number of his surviving children and children dying leaving surviving issue, and that one share be set apart for each surviving child and one for the surviving issue of each deceased child, and and 121 New York State Reporter directed that the shares going to the issue of deceased children should be paid to them at once without the interposition of a trust, but as to the shares of his surviving children he provided that each separate share should be held by the executors as trustees, and the net income applied to their use during life. Where a child arrived at the age of 25, however, the trustees were directed to "convey, transfer, deliver and pay over the one equal fourth part of the capital of such trust estate with all gains and increase," and on a beneficiary arriving at the age of 30 to pay over in like manner one-third of the remainder. Testator, besides this, repeatedly provided that the income paid to a daughter should be free from the debts, control, or interference of her husband. He also provided that, in the event of the death of a child without exercising the power of appointment given by the will, its share should go to his or her issue if any survived. and he made no provision for the surviving husband or wife. Held, that the clause referring to the death of a child after the death of the testator included a death at any time thereafter, and was not limited to death after attaining the age of 30, and that he did not intend that the trust fund should vest absolutely in his children until the arrival period fixed for distribution, and then only as to the part to be distributed; and hence, where a daughter died intestate before arriving at the age of 25, her children took all her share under the will, and not as next of kin, subject to the interest of her husband. Appeal from Judgment on Report of Referee. Action by Walter Lewisohn and others, executors of Leonard Lewisohn, deceased, against Rosalie V. Henry and others. From the judgment construing the will of plaintiffs' testator, defendants Rosalie V. Henry and another appeal. Modified. Appeal by defendants Rosalie V. and Lenore Gladys Henry, by their guardian ad litem, from a judgment entered upon the report of a referee. The action is brought by the executors of the last will and testament of Leonard Lewisohn for the construction of his will. The controversy arises over the construction of the seventh clause or paragraph of the will, which is as follows: "I direct that my executors hereinafter named, or such of them as shall qualify and act, divide all the rest, residue and remainder of the property and estate, both real and personal of every kind and description and wheresoever situated which shall belong to me or be subject to my disposal at the time of my death, into such number of equal shares as shall be equal to the number of children who shall survive me, and of my children, who shall have died before me leaving issue who shall survive me, and set apart one of such equal shares for each of my said children who shall survive me, and one of such equal shares for the issue of each child of mine who shall have died before me, leaving issue me surviving; and convey, transfer, deliver and pay over one of such equal shares to the issue of each one of my children who shall have died before me leaving issue me surviving, in equal shares, per stirpes and not per capita, to whom I give, devise and bequeath the same accordingly; and that my said Executors set apart one of such equal shares for the benefit of each of my children who shall survive me, and I give, devise and bequeath the same to my said Executors and to such of them as shall qualify and act; as Trustees to have and to hold each share so set apart for the benefit of a child of mine, (or the portion thereof not paid over and transferred to such child as hereinafter directed), upon a separate trust, for the benefit of such person for whom or for whose benefit the same shall have been set apart as aforesaid during his or her natural life, which trust as to each share of such property or estate by this article of my will herein before directed to be held in trust for the benefit of a child of mine shall be to collect and receive the rents, issues, income and protits of so much thereof as shall be real property and to invest and keep invested so much thereof as shall be personal property with power to call in and change the investments thereof from time to time and to collect and receive the income thereof and after paying thereout all lawful expenses and charges, to apply the net income from the said trust estate arising from time to time as received, to the use of the person in trust for whom such trust estate shall be held as aforesaid for so long during the life of such person as he or she shall remain under the age of twenty-five years, the income of any such share held in trust for any daughter of mine to be free from the debts, control or interference of any husband she may have; and upon the arrival at the age of twenty-five years, of the person in trust for whom such trust estate shall be so held, to convey, transfer, deliver and pay over one equal fourth part of the capital of such trust estate with all gains and increase of capital thereof, if any, in fee simple and absolutely to such person; and after such person in trust for whom such trust estate shall be held in trust as aforesaid shall have attained the age of twenty-five years, thence-forward for so long during the natural life of such person as he or she shall remain under the age of thirty years to continue to hold the residue of such trust estate, in trust, to collect and receive the rents, issues, income and profits of so much thereof as shall be real property and to invest and keep invested so much thereof as shall be personal property, with power to call in and change the investments thereof from time to time and to collect and receive the income thereof and after paying thereof all lawful expenses and charges, to apply the net income from the said trust estate arising from time to time as received to the use of the person in trust for whom such trust estate shall be held as aforesaid, the income of such trust estate held in trust for any daughter of mine to be free from the debts, control or interference of any husband she may have; and upon the arrival at the age of thirty years of such person in trust for whom such trust estate shall be held to convey, transfer, deliver and pay over one equal third part of the capital of such trust estate then remaining including all gains and increase of capital thereof, if any, in fee simple and absolutely to such person in trust for whom such trust estate shall be held; and from and after such person shall have attained the age of thirty years thenceforward, during the residue of the natural life of such person in trust for whom such trust estate shall have been held to continue to hold the residue of such trust estate in trust to collect and receive the rents, issues, income and profits of so much thereof as shall be real property and to invest and keep invested so much thereof as shall be personal property with power to call in and change the investments thereof from time to time and to collect and receive the income thereof and after paying thereout all lawful expenses and charges to apply the net income from the said trust estate arising from time to time as received, to the use of the person in trust for whom such trust estate shall be held as aforesaid, the income of any such trust estate held in trust for any daughter of mine to be free from the debts, control or interference of any husband she may have, and upon the death of such person in trust for whom such trust estate shall be held, to convey, transfer, deliver and pay over the capital of such trust estate as it shall then exist with all gains and increase of capital thereof, if any, in fee simple and absolutely to such persons or person and in such shares and proportions as the person in trust for whom such trust estate shall have been held, shall by will direct and appoint; and in default of such direction or appointment, and in so far as such direction or appointment may not extend or be effectual, to the issue then surviving of such person in trust for whom such trust estate shall have been held, in equal shares per stirpes and not per capita, or if such person in trust for whom such trust estate shall have been held as aforesaid shall leave no issue him or her surviving, to the next of kin of such person in trust for whom such trust estate shall have been held, in the shares and proportions to which under the laws of the State of New York as they shall then exist, they would be entitled to the same, if the same were personal property and such person in trust for whom such trust estate shall have been held had died possessed thereof intestate." The testator left four sons and five daughters, one of whom was Florine L. Henry, the mother of the appellants, who subsequently died, before attaining the age of 25 years, without having made the appointment authorized by the seventh clause of the will. She died intestate. leaving the appellants her sole issue, and a husband, the respondent Henry, their father, and 121 New York State Reporter who was appointed administrator of her estate. The executors of Lewisohn qualified, and divided the remainder of his estate into nine separate equal shares, and set apart one of these for the mother of the appellants, as directed in the will, and during her lifetime paid her the income thereof. The surviving husband, claiming that one-half of the part of the estate so set apart and held in trust for his wife which was to be paid to her in installments upon her attaining the age of 25 and 30 years, respectively, vested in her, in his capacity as administrator demanded that the executors pay the same over to him. The executors, being in doubt as to the true construction of the will in this regard, thereupon brought this action to have it judicially construed. The referee decided that one-half of the share or part of the estate so set apart for the benefit of the mother of the appellants vested in her upon the death of the testator, and awarded judgment accordingly. Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ. Campbell E. Locke, for appellants. LAUGHLIN, J. The executors were directed by the seventh clause of the will to divide the rest, residue, and remainder of the estate of the testator into a number of equal shares, equal in number to the number of his children living at the time of his death and of his deceased children leaving issue surviving him, and to set apart one of such shares for each surviving child and one for the surviving issue of each deceased child. The executors were then directed to "convey, transfer, deliver and pay over one of such equal shares to the issue" of each deceased child in equal shares, "per stirpes and not per capita, and to whom I give, devise and bequeath the same accordingly.' Here we find specific provisions with reference to the death of any of the children of the testator during his lifetime. Grandchildren surviving the testator, being the issue of a predeceased child, were to take at once without their share being held in trust at all. Consequently, the disposition of the principal upon the death of a beneficiary, made towards the end of the seventh clause of the will, must have reference to the death of a child, and to one occurring subsequent to the death of the testator. The appellants contend that the clause in which this reference to the death of a child is made is unqualified, and that it includes a death at any time thereafter. The respondents, on the other hand, claim that it only relates to a death of a surviving child after attaining the age of 30 years, and that therefore the part of the will in which it occurs merely disposes of the remaining half of the separate share set apart for the benefit of the mother of the appellants. This argument proceeds upon the theory that the testator did not contemplate a death of any of his surviving children before attaining the age of 30 years, and that, under the rule which favors the vesting of estates, the undivided half which the executors are directed to pay over to each child, in installments, on arriving at the age of 25 and 30 years, respectively, vested absolutely in the mother of the appellants upon the death of the testator. If the undivided half of the mother's share thus set apart and held in trust for her benefit vested absolutely in her, as claimed by the respondents, then upon her death it was payable to her administrator, and the ap |