are essential differences between the two. In the case of fraternal societies the contract is not alone in the certificate, but is contained in the statute, the charter, the by-laws, the application, and the certificate of membership together. The member is subject to all the rules of the order. Shipman v. Protected Home Circle, 174 N. Y. 409, 67 N. E. 83, 63 L. R. A. 347. It has been held that the right acquired by the member in such society does not amount to a chose in action. He has no right which is assignable. Sabin v. Phinney, 134 N. Y. 428, 31 N. E. 1087, 30 Am. St. Rep. 681. But in this case the Scott policies contain the entire contract; under each of them the assured has an assignable interest, a property right; the policies have a stipulated value; the company is bound to pay the amounts due, and the assured can name the beneficiary, and can assign the policies to creditors, who can enforce their rights. The assured is a creditor. The policies are, therefore, not like certificates of membership in fraternal organizations, but are valuable contracts, and are assignable and transferable. Lauterbach v. New York Investment Co., 62 Misc. Rep. 561, 117 N. Y. Supp. 152. Since December 29, 1911, at least, Russell M. Johnston has had the sole right to collect the proceeds of the policies and to dispose of the same under the trust. The purpose and the intent of the settlor in making the deeds and transfers are important matters to consider in passing upon the validity of the trust. Robb v. Washington & J. College, 103 App. Div. 349, 93 N. Y. Supp. 92.

[6] Under all the circumstances of the case I must find that, in making the trust deeds and the transfers of the insurance policies, Mr. Scott did not purpose or intend to avoid the statute of wills. We cannot justly infer, when a man takes out a "straight life policy" payable to his wife, his child, or another, that he intends to avoid the statute of wills. Each of these insurance policies in question, during its entire life, was payable to a beneficiary, other than the assured, of his estate. Their proceeds therefore, upon the assured's death, intestate, at any time after their issue, disregarding his trust deeds, would have never come into his estate. They would have gone direct to the beneficiaries. Though he might have named his executors as the beneficiaries, he has not done so at any time. Where insurance is payable to the assured, or to his executors, administrators, or assigns, the proceeds are subject to appraisal for the purpose of taxation under the collateral inheritance tax. Matter of Knoedler, 140 N. Y. 377, 35 N. E. 601. But where payable to an individual other than himself or his executors, administrators, or assigns, the proceeds are not a part of his estate. Griswold v. Sawyer, 125 N. Y. 411, 26 N. E. 464. So that, by making the trust deeds, Mr. Scott has not disposed of any property which otherwise would have gone into his estate after his decease. He has simply attempted to direct what use should be made of the proceeds of these policies after his death, and has not attempted to dispose by deed of any property which under the existing facts was disposable by will. W. C. Bank v. Hume, 128 U. S. 195, 9 Sup. Ct. 41, 32 L. Ed. 370.

The transactions above referred to being attacked upon no other ground than that they amount to an attempt to defeat the statute of wills, I hold that the two trusts created by James L. Scott are valid. Ordered accordingly.

(76 Misc. Rep. 615.)

HART v. SHURTLEFF et al.

(Supreme Court, Equity Term, Lewis County. December, 1911.)

1. WILLS (§ 439*)-CONSTRUCTION-INTENTION OF TESTATOR.

The court, in construing a will, must seek to discover the intention of testator, as gathered from the language used, guided by the settled rules of construction, together with the circumstances and the relation of the parties.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. 439.*]

2. WILLS (8 601*)-CONSTRUCTION-ESTATES DEVISED.

Testatrix gave her home to a granddaughter, provided testatrix did not sell the same during her lifetime, and declared that, if the granddaughter should be a minor at the time of testatrix's death, the granddaughter should have the use of the home until she became 21, and empowered the executor to sell and convey the property, and, in case of a sale by testatrix or the executor, the granddaughter should receive a specified sum, and in case the property was not sold the same should go to the granddaughter, together with a specified sum, and directed the executor to hold the property for the granddaughter until, in his wisdom, he should think it advisable to transfer the same to her, and declared that, on the death of the granddaughter without descendants, the property should go to persons named. Held, that the granddaughter took a fee, subject to the control by the executor during her minority; but the authority of the executor to withhold the estate from her could not be arbitrarily exercised.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1340-1350, 1608; Dec. Dig. § 601.*]

3. WILLS (§ 601*)-CONSTRUCTION-DEVISE IN FEE.

Where there is a clear and certain devise of a fee, the estate will not be lessened by subsequent words of the will, which are ambiguous.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1340-1350, 1608; Dec. Dig. § 601.*]

4. WILLS (8 545*)-CONSTRUCTION-GIFT OVER IN CASE OF DEATH OF BENEFICIARY WITHOUT ISSUE.

Where there is an absolute gift, denoting an intention that the beneficiary shall take the same absolutely at the testator's death, and there is a gift over in case of the death of the beneficiary without issue, the will refers to death without issue prior to the testator's death, and the beneficiary, surviving testator, takes absolutely.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1171-1176; Dec. Dig. § 545.*]

5. EXECUTORS AND ADMINISTRATORS (§ 138*)-CONSTRUCTION-ESTATES DE

VISED.

Testatrix devised two parcels of land to a granddaughter for life, with gift over to her descendants, and provided that, in case of a sale thereof, the avails should be held in trust to pay the income to her for life, and at her death to her descendants. She appointed a trustee, and empowered her executor to sell the real estate, and provided that, in case of a For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

sale, the avails should stand in the place of the real estate. Held, that the granddaughter took an estate for life, with remainder over to her descendants in fee, subject to being divested by the executor selling under the power conferred.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 560-566, 568, 569-575; Dec. Dig. § 138.*]

6. EXECUTORS AND ADMINISTRATORS (§ 138*)-POWER OF EXECUTOR-CON

STRUCTION.

A will devising real estate to a beneficiary for life, with gift over to her descendants, and empowering the executor to sell the property and hold the avails in place of the real estate, and appointing a son of testatrix executor, conferred on the executor a purely personal power of sale, not surviving him.

[Ed. Note.

For other cases, see Executors and Administrators, Cent.

Dig. §§ 560-566, 568, 569-575; Dec. Dig. § 138.*]

Action by William S. Hart, substituted trustee of Sylvia Foster, deceased, against Louisa H. Shurtleff and others, for the construction of the will of the deceased. Judgment construing will.

C. S. Mereness, for plaintiff.

Frank Bowman and Harry C. Shurtleff, for defendant Louisa H. Shurtleff.

F. C. Schraub, for defendants Abbie Evans, Clara Chapman, Foster Evans, and Ethel Evans.

E. J. Boshart, guardian ad litem, for Alma Evans and Ethel Evans, infant defendants.

L. C. Davenport, for defendant Lillian L. Foster, and guardian ad litem, for infant defendant Vivien L. Foster.

MERRELL, J. This action is brought to obtain construction of the second and third clauses of the last will and testament of Sylvia Foster, late of the town of Turin, Lewis county, N. Y., deceased. The will bears date January 19, 1891, and the testatrix died March 4, 1891, leaving as her only heirs at law and next of kin, her surviving, S. Olin Foster, a son, who is named as executor and trustee in the will, and Abbie Evans and Louisa F. Hammond, granddaughters, children of Harriet F. Hammond, a deceased daughter of testatrix. The will was admitted to probate in Lewis County Surrogate's Court March 23, 1891, and letters thereon issued to S. Olin Foster, sole executor and trustee. The estate amounted to something over $25,000. The chief difficulty arises as to the construction of the second clause of said will. That clause reads as follows:

"Second: The house and lot in Turin, N. Y., where I now reside I give and bequeath to my granddaughter Louisa F. Hammond provided I shall not have sold the same previous to my decease; and if the said Louisa shall not have arrived at the age of twenty-one years at the time of my decease, she shall have the use of said house and lot until she is 21 years of age; and I empower my executor hereinafter named to sell and convey said house and lot. In case I sell the same or if my said executor sells and conveys under the power herein given, then I give and bequeath to my said granddaughter Louisa the sum of four thousand five hundred dollars; and in case the said house and lot are not sold, then I devise the same to my said granddaughter Louisa together with the sum of twenty-five hundred dollars. But I direct my For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

executor and trustee hereinafter named to hold the property herein given to said Louisa until in his wisdom he shall think it advisable and proper to pay over and transfer the same to her, and until he shall so pay over and transfer same I direct him to receive the income and interest therefrom in trust and pay over the same annually to said Louisa. Provided said Louisa dies without descendants, then I give, devise, and bequeath to my executor and trustee hereinafter named, one-half of said house and lot and twenty-five hundred dollars or one-half of said sum of forty-five hundred dollars, as the case may be. In trust nevertheless to receive the rents, interest and income thereof, and pay over the same annually to my granddaughter Abbie Evans, during her lifetime and at her decease to pay over the same to the descendants of said Abbie; and the other half of said house and lot and $2,500 or of said forty-five hundred dollars I give and bequeath to my said son S. Olin upon the decease of said Louisa without descendants."

The house and lot mentioned was sold by said executor subsequent to the death of testatrix and after Louisa F. Hammond had attained her majority. The sum of $1,600 was realized thereon. Instead of making the fund for the benefit of Louisa up to $4,500, as directed by said will, the trustee seems to have regarded said trust fund as being only $4,118.75, and the beneficiary appears to have been satisfied with such arrangement. From the time of his appointment down to January 16, 1911, when he died, S. Olin Foster acted as trustee under said will, and retained under his control the said fund, paying the beneficiary interest thereon, less commissions and expenses. No part of the corpus of said fund was ever turned over by said trustee to the beneficiary.

At the time when said will was executed Louisa was but 15 years of age. Her mother, the daughter of testatrix, had died when Louisa was but 6 years of age. After her mother's death, she lived with the testatrix, her grandmother, until the latter's death. After the grandmother's death, Louisa lived with her uncle, S. Olin Foster, the trustee named in the will, until she became 21 years of age. Abbie Evans was a half-sister of said Louisa F. Hammond, being a daughter of Harriet F. Hammond by her first husband, and at the time of the death of testatrix was married and had three children, aged, respectively, 3, 6, and 8 years. All of said children of Abbie Evans are still living, and, with two more children born since the death of testatrix, are defendants in this action. The largest part of the property of testatrix passed under the will to the son, S. Olin Foster.

Prior to reaching 21 years of age, Louisa appears to have been industrious, learning the milliner's trade and working thereat for a number of years, before and after reaching her majority, in various parts of the country, until her marriage in July, 1905, to Harry C. Shurtleff, an attorney in good standing and enjoying a lucrative practice at Montpelier, Vt. This marriage was preceded by some years of acquaintance between the contracting parties, during which Mr. Shurtleff had visited Turin on several occasions, had been entertained by and in the family of said S. Olin Foster, and the latter, since said marriage, had visited his said niece and her husband in their home at Montpelier, Vt.

[1] In construing testamentary provisions, the chief end to attain. is to discover, if possible, the real intent of the testator. The desire,

which comes with age and approaching dissolution, to make a proper disposition of one's property, to select the recipients of one's bounty, and, in some measure, to regulate the channels through which the accumulations of a lifetime are to pass after death, is at once natural and proper. Here we find this old lady making a will, wherein she directs. a distribution of her entire estate among and for the benefit of her blood relatives. To her son, S. Olin, whom she apparently held in most affectionate regard, and in whom she reposed the utmost confidence, as her only living child, she gives the bulk of her estate. To her granddaughter, Abbie Evans, and for the benefit of her children, substantial provision is made. And, finally, the testatrix unquestionably desired to make a substantial gift to and for the benefit of her little grandchild, Louisa F. Hammond, who had lived with her since. her daughter's death, in the very house which she devises to her by this second clause. From all the circumstances of the case, and the other provisions of the will, no reason can be discovered why this grandchild of tender years should not have been the recipient of substantial bounty under her grandmother's will, and what could be more natural than to devise to her the home in which they had passed 9 years together, during which time Louisa unquestionably filled the vacancy caused by the death of testatrix's daughter. In reaching the true intent of the testatrix, we must be governed by the language used, so far as the same is coherent, and, if possible, guided by wellsettled rules of construction established by the courts, together with the circumstances and the relation of the parties, determine the testamentary intention.

[2] In this second clause we have the plain and unequivocal provision giving to the granddaughter of the testatrix the house and lot in Turin and $2,500, or, in the event of the conveyance thereof by testatrix in her lifetime, or by the executor after her decease under the power of sale, that the sum of $4,500 should take the place thereof. Except for the remainder of the second clause, we have a straight devise and bequest to the granddaughter; but in language apparently in derogation of the first plain provision, which is an absolute gift of the property mentioned, we find an apparently antagonistic provision, diametrically opposed to what has preceded it, to the effect that the executor is to hold the property thereinbefore absolutely given, or, as the testatrix says, "herein given to said Louisa," until, in the wisdom of said executor, he shall think it advisable and proper to pay over and transfer the same to her, and providing for the payment of the income therefrom annually to said Louisa "until he shall pay over and transfer same," and then follows a provision that, in the event of the death of Louisa without descendants, the property thereinbefore given her shall be equally divided, one half to go to her son, the executor and trustee named in the will, and the income of the other half to be paid to Abbie Evans during her lifetime, with the remainder over to her descendants.

These provisions, following the absolute gift to Louisa, and read in connection with the first unequivocal provision absolutely giving to