surviving, then such issue shall take the share or portion the parent would have taken if living at the time of my death. * The judgment appealed from denies to the children of Michael Kane the right to take under the will. With this conclusion I am not in accord. The wording of the will is faulty and inaccurate. The two clauses quoted are contradictory of each other. There are two rules of interpretation which are to guide us in construing this will: (1) The intent of the testatrix is to govern the interpretation of the will when that intent be ascertained, and words may be transposed and the tense of a verb changed if necessary to give expression thereto. (2) A strong presumption exists that the testatrix did not mean to disinherit alone the children of her deceased son. Matter of Brown, 93 N. Y. 299; Matter of Crawford, 113 N. Y. 366, 374, 375, 21 N. E. 142. In the defendants' answers no claim is made that Michael Kane had received his portion of the estate prior to his death, nor upon the face of the pleadings is there any reason apparent why any discrimination should be made as against the living children of the deceased child. Again, in the fifth clause of the will, the share of Peter is put in trust for his life, with the remainder to his lawful issue, if any. If not, the will reads: "Then I give, devise and bequeath the share of my estate so held in trust for him as aforesaid, to my children living at the time of his death, and the issue of any of my said children who shall have died before the death of my said son Peter J. Kane. That the children of Michael are included in this provision is undoubted, and in view of this fact, and of the inaccuracy of expression found throughout the will, and of the presumption that the issue of the child that died before the making of the will should share equally with the issue of the children who should die thereafter, it seems fair that the provision for the children who "shall die" before the death of the testatrix includes this plaintiff and her sister. This exact phrase has been the subject of judicial construction in wills. In Re Chapman's Will, 32 Beav. 382, the will recites in part: "That in case any of my nephews and nieces or great-nephews and greatnieces, shall die in my lifetime leaving any child or children who shall be living at my decease," the child or children of such nephew or niece should take the share of its parent. It was there held that the issue of a child who had died before the making of the will was entitled to share. In the opinion, Sir John Romilly says, in part: "Much stress cannot be placed on the words 'shall die in my lifetime.' It is vague. It is argued that it means 'shall hereafter die,' but I think the expression is constantly used in the sense 'shall be dead at the time of my death."" In Loring v. Thomas, 1 Dr. & Sm. 497, the court held that the words "shall die" did not import future dying, but are equivalent to the words "shall be dead” or “shall have died." 156 N.Y.S.-8 The expression in the statute providing against the lapse of legacies, where a child "shall die" during the lifetime of the testator, was construed by both the prevailing and dissenting opinions to refer to a death before or after the making of the will in Pimel v. Betjemann, 183 N. Y. 194, 76 N. E. 157, 2 L. R. A. (N. S.) 580, 5 Ann. Cas. 239. This case is strongly relied upon by respondents to sustain this decision. If our conclusion that the words "shall die," as used in the fourth subdivision of the will, shall be construed as "shall have died" as used in the fifth subdivision of the will, this case is clearly distinguishable from the case cited, which was simply a bequest to children as a class without express provision for those dying before testator's death. The decision in the case cited also rests in part upon a provision in the will that the legacy should not be payable until the beneficiary reached the age of 21 years, which was held to indicate that young children of a deceased child were not intended to be included. In the case at bar, the will contains no such provision. The case at bar is also distinguishable from the Turner Case, 208 N. Y. 261, 101 N. E. 905, Ann. Cas. 1914B, 245, in which was construed a will containing a bequest to collaterals, and not to direct descendants. In such case the same inference does not exist as where the question of exclusion is of one's own blood. Each will must be construed in the light of the special circumstances under which it was made, and in view of other provisions in the same will. I cannot escape the conviction that the testatrix never intended to exclude the plaintiff and her sister from their share of her bounty. The order and judgment should therefore be reversed, with costs, and the motion denied, with $10 costs. Order filed. All concur. LAUGHLIN, J. (concurring). I concur in the views expressed by Mr. Justice SMITH, and vote for reversal. I am of opinion that the provision of the will directing that the residuary estate be divided into as many shares or portions as the testator left children him surviving is qualified by the further provision with respect to the prior death of a child leaving issue, and that the true construction of the will is that, if the testator left children and the issue of a deceased child, no matter whether the death of such child occurred before or after the making of the will, the residuary estate should be divided into a number of shares equal to the number of sons and daughters of the testator who survived him, plus the number of his sons and daughters who predeceased him leaving issue surviving the testator. The plaintiff and the defendant Rosemary Kane, who are the children of the testator's son Michael, are therefore entitled to take the share which Michael would have taken, had he survived the testator. (170 App. Div. 352) WILLS v. VENUS SILK GLOVE MFG. CO., Inc., et al. (Supreme Court, Appellate Division, Second Department. December 10, 1915.) 1. BANKRUPTCY 166-PREFERENCES-INTENT. To invalidate a corporate mortgage given to secure certain creditors within four months before bankruptcy, it is not enough that the transfer and the insolvency coexisted, but it must appear that the act was done in view or in forecast of insolvency, and that the motive impelling the action was a preference, and not an honest, though misguided, effort to save the corporation. [Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dec. Dig. 2. BANKRUPTCY 166.] 303—-PREFERENCES EVIDENCE. The intent to prefer, necessary to invalidate a transfer made within four months before bankruptcy, must be proved by direct evidence, or inferred as the necessary consequence of other facts clearly proved. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. §§ 458-462; Dec. Dig. 303.] In an action to foreclose a corporate mortgage, given within four months before bankruptcy, while the corporation was insolvent, but while it was still a going concern, evidence held to support a finding that it was not made, and the bonds secured thereby were not delivered or accepted by creditors, with intent to give a preference to them over other creditors. [Ed. Note.--For other cases, see Bankruptcy, Cent. Dig. §§ 458-462; Dec. Dig. 303.] 4. BANKRUPTCY 303-PREFERENCES EVIDENCE. In an action to foreclose a mortgage given by a corporation within four months before bankruptcy, while insolvent, the exclusion of evidence that after the giving of the mortgage the president of the corporation in writing and verbally said there was no incumbrance of any kind, but that there were additional assets of $42,000, which was not the fact, offered as tending to show an intent to give a preference, was not error requiring a reversal, as it was too vague and indefinite. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. §§ 458-462; Dec. Dig. 303.] 5. TRIAL 45 RECEPTION OF EVIDENCE-OFFER OF PROOF. The proper practice is to call a proposed witness and interrogate him, instead of making an offer of proof. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 110-114; Dec. Dig. 45.] 6. APPEAL AND ERROR 260-RESERVATION OF GROUNDS OF REVIEW-OFFER OF PROOF. Where an offer of proof received the sanction of the court, and the opposing counsel was silent, an exception to the exclusion of the offered evidence might be reviewed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 15031515; Dec. Dig. 7. APPEAL AND ERROR OF PROOF. 260.] 837-RESERVATION OF GROUNDS OF REVIEW-OFFER In reviewing an adverse ruling on an offer of proof, the court is limited to the specific testimony which the counsel attempted to bring out, and other possible testimony, which counsel neither attempted to offer nor indicated, cannot be considered. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 32623272, 3274-3277, 3289; Dec. Dig. 837.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Appeal from Special Term, Kings County. Action by Louis C. Wills against the Venus Silk Glove Manufacturing Company and others. From a judgment in favor of plaintiff, defendant Archibald Palmer, as trustee in bankruptcy, appeals. Affirmed. Argued before JENKS, P. J., and THOMAS, STAPLETON, MILLS, and PUTNAM, JJ. Archibald Palmer, of New York City, for the appellant. JENKS, P. J. [1, 2] On May 1 and 2, 1914, the defendant corporation executed a mortgage to the plaintiff trustee for five years to secure 25 bonds, of $1,000 each. Three months later a petition of involuntary bankruptcy was filed against the defendant corporation, and in due course it was adjudged a bankrupt. The foreclosure was authorized in case of an adjudication in bankruptcy. The Special Term found that insolvency was imminent at the time the corporate mortgage was made, but that neither it was made nor the bonds under it were delivered or accepted "with the intent of giving a preference to any particular creditor over other creditors" of said company. The defendant trustee in bankruptcy attacks the latter finding. It is not enough that the act complained of and the insolvency coexisted. Paulding v. Chrome Steel Co., 94 N. Y. 334; Van Slyck v. Warner, 118 App. Div. 40, 103 N. Y. Supp. 1. It must appear that the act was done in view or in forecast of insolvency. Id. In Swan v. Stiles, 94 App. Div. 117, 122, 87 N. Y. Supp. 1089, 1092, Spring, J., for the court, says: "The test is: May we fairly conclude a preference was the motive impelling the action of the directors, or was it an honest, though misguided, effort to save the corporation?" See, also, Converse v. Sharpe, 161 N. Y. 571, 56 N. E. 69; Gordon v. Southgate Building Co., 109 App. Div. 838, 96 N. Y. Supp. 717. The intent to prefer is a fact that must be proved "by direct evidence, or inferred as the necessary consequence of other facts clearly proved." Curtis v. Leavitt, 15 N. Y. 9, 198, cited in Van Slyck v. Warner, supra. [3] The issue of the bonds was confined to the Schomakers, father and son, and the Doull-Miller Company. They were creditors of the corporation for $2,000, $10,000, and $3,500, respectively. The debts of the Schomakers were represented by unsecured corporate notes, one on demand and the other due on May 19, 1914. Accordingly the Schomakers received 2 and 10 bonds, respectively, for their notes, and the Doull-Miller Company received the remainder to secure their said debt and future advances to the corporation. Soon thereafter the said Doull-Miller Company advanced $6,500. The purpose and the intent of these parties should be resolved by consideration of their selfinterests. The scheme of the mortgage was a legitimate and common financial expedient. If it succeeded, so that the corporation lived and prospered, then the capital stock might represent a sound investment, and not become practically worthless as of a defunct corporation. The 117 Schomakers and their relative, Probst, had each invested $5,000 in the stock. Again, the corporation was the tenant of the elder Schomaker and had paid its rent regularly. Naturally the Schomakers would wish to save it as a going concern. There is nothing suspicious in the consent to postpone these debts for five years, or to fund them, so to speak, if we consider that the corporation could not meet them when due and that postponement gave promise of ultimate payment. Doubtless the Schomakers were also influenced by the desire to facilitate the release of the younger Schomaker from his open guaranty in favor of the corporation to the Doull-Miller Company, under the advice of their relative, Probst, that it was "a very bad thing for a young man to do." And the mortgage, or such similar expedient, may well have seemed necessary to maintain the connection between the corporation and the Doull-Miller Company, which insisted upon some security in place of the guaranty and as a condition for the continuance of their relations with the corporation; for the Doull-Miller Company had been the factor and the financier of this corporation and its predecessor for three years. There are indications that the continuance of such relations were most desirable, if not essential, for large payments of legitimate commissions had theretofore been received by the DoullMiller Company. The business had been carried on for several years in Pennsylvania; this New York corporation was young, and was working; the said investment of the Schomakers and Probst in the capital stock had been made but two months before the mortgage; they had been furnished with an accountant's report of November, 1913, and a statement from the corporation, after they had inspected the plant and the merchandise, had seen the plant working day and night with double shifts, had sent their bookkeeper to look into the books and merchandise, and one of their number had visited the plant in Pennsylvania. The loans represented by the notes were made by the Schomakers to meet the payrolls, and the money was needed because the corporation was short of funds temporarily as the result of trouble in the dye house and the shut-out of the women operatives in Pennsylvania by the heavy storms. According to the testimony of the Schomakers and of the representative of the Doull-Miller Company, everything seemed promising. Wunsch had assured the Schomakers that the machinery was paid for and had exhibited the receipted bills, and a little later had told of orders on hand to the extent of $80,000 and spoken of profits of 25 per cent. So far as the Doull-Miller corporation is concerned, there is a cogent indication of its faith from the fact that subsequent to the bond issue it paid out on accepted drafts. of the corporation $17,000 without security, and for which it has received no reimbursement. It does not appear that either of the Schomakers had any knowledge of the kind of business done by the corporation, or indeed took any part therein. They knew in a general way the situation, the press for funds; but it was natural enough that they should strive to save the corporation, with the hope that the tide would turn. In determination of the intent, the rule of Lopez v. |