1. The purpose of construction, as applied to wills, is unquestionably to arrive, if possible, at the intention of the testator, but the intention to be sought for is not that which existed in the mind of the testator, but that which is expressed in the language of the will.
2. The court may not make a new will for the testator, nor will it surmise, guess or speculate as to testator's intention, but will be guided by the expressed language of the will, where there is no ambiguity.
3. Testator's will set up a trust of $25,000 for his son Earl during his life, and after his decease the principal was to fall into the residuary estate. He further directed that all the residue of his estate be divided into two equal shares for the benefit of his sons, Paul and the complainant, the share of the complainant to be held in trust by the executors as trustees; that if the complainant at any time should have proved himself efficient and capable of safely managing property, the trustees were, at their discretion, to pay over to him one-third of the property "then held in trust for him," and at the expiration of five years thereafter an additional third part of the property "then held in trust for him." Testator directed that the balance of complainant's share of the residuary estate should remain in trust during complainant's life, and after his decease it was to be distributed to his children, or issue of deceased children, per stirpes. A short time after testator's decease, the trustees determined that complainant was capable of safely managing his estate, and paid over to him one-third of the trust property, according to the provisions of the will. Five years later they paid him an additional one-third. Earl died thereafter, and complainant claims he is now entitled to receive outright from the trustee two-thirds of the increase to the residuary estate coming to it through the death of Earl. Held, there is no ambiguity in the provisions of the will with reference to the estate created for complainant, nor any doubt as to testator's intention as to the disposition thereof. Complainant was to receive from the trustees one-third of the property "then held in trust for him" upon the happening of each of two distinct events: first, when he had "proved" himself, and second, at the expiration of five years thereafter. On neither of these occasions had the residuary estate been augmented by reason of the death of Earl. Testator distinctly provided that the one-third of the residuary estate, whether increased or not after the payment of the other two-thirds to complainant, should be continued in trust. Complainant is therefore not entitled to any share of the $25,000 increase in the residuary estate brought about by Earl's death.
PER CURIAM.
The decree appealed from will be affirmed, for the reasons stated in the opinion of Vice-Chancellor Sooy in the court of chancery. For affirmance — PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 13.
For reversal — None.