[225 N. Y.] Opinion, per ANDREWS, J. [Feb., Mr. Waller, and ordered that the judgment be affirmed upon the sole ground that this agreement did not require the wife as the survivor to give to the next of kin of the husband any substantial amount, and that equity would not interfere to enforce a mere nominal right in their favor. Thereupon an appeal was taken to this court from a part of the order of affirmance and from so much of the judgment of affirmance as held that the plaintiffs had no substantial rights under the agreement and as affirmed the judgment appealed from upon the ground stated, "It being the intention of the above named plaintiffs to bring up for review in the Court of Appeals so much of the said actual determination of the Appellate Division, second department herein, as adjudges that the agreement" referred to "conferred upon the next of kin of Josiah A. Waller no substantial right; and also to bring up for review in the Court of Appeals so much of the said actual determination of the said Appellate Division as affirmed the judgment of July 1st, 1915, herein, without costs, upon the sole ground that the said agreement between Josiah A. Waller and Melissa V. Waller, husband and wife * * * did not require her as the survivor to give to the next of kin of the husband any substantial amount, and that equity will not interfere to enforce such a nominal right on the part of the next of kin." In actions, except where a new trial is ordered, no appeal as of right may be taken to this court except from a final judgment. Such an appeal may not be taken from the order of the Appellate Division directing such a judgment. (Cardozo on the Jurisdiction of the Court of Appeals, sec. 85; Derleth v. DeGraff, 104 N. Y. 661.) This being so, so much of the appellants' notice of appeal as refers to the order of the Appellate Division is irregular. Upon an appeal from a judgment the appellant may in his 1918.] Opinion, per ANDREWS, J. [225 N. Y.] notice state that he appeals from it or from a specified part thereof. (Code Civ. Pro. sec. 1300.) What the appellants have sought by adopting the form they use is clear. The finding of fact against them in the trial court is reversed. Instead one is made in their favor. Therefore, if the Appellate Division is wrong in its legal conclusion, they wish this court to direct judgment for them. On the other hand, the respondent claims that only the grounds for affirmance - not the affirmance itself is questioned. Therefore, whether these grounds were right or wrong, the original judgment stands and we may not review it. This construction of the effect of the notice of appeal is too narrow. Taken as a whole it informs the court that it is from the judgment of affirmance and is based upon the ground that this judgment is not supported by the findings as made. If this is true it must be reversed. And upon the reversal we may either award a new trial or grant to either party such judgment as he may be entitled to. (Code Civ. Pro. § 1337.) After finding the agreement under which the mutual wills were made, the Appellate Division has interpreted it as meaning that it would be satisfied in case the survivor gave to the next of kin of the husband, or to one of them, some sum, however small, and that, therefore, there was conferred upon them no substantial right. Consequently, equity would not interfere to enforce on their behalf a mere nominal claim. There are three possible constructions which might be given to this agreement: (1) That adopted by the Appellate Division. It involves the idea that under the agreement two classes of beneficiaries are created the husband's next of kin and the wife's. (2) That, there being two classes, each class was entitled to onehalf of the joint estate, the survivor to distribute such half among the members of each class according to his or her [225 N. Y.] Opinion, per ANDREWS, J. [Feb., judgment. (3) That but one class was created, all of the next of kin of either husband or wife, to any one of whom the whole joint estate might be given. If the last is the true construction, the complaint should be dismissed. The distribution " in sums according to the judgment of the survivor," does not fairly imply that each of the next of kin must receive something even if an unsubstantial amount. Clearly such was not the intent of the parties to this agreement. That such is not thought to be the intent, under somewhat similar circumstances, is shown by the adoption by the legislature of section 158 of the Real Property Law. (Cons. Laws, chap. 50.) "Where a disposition under a power is directed to be made to, among, or between, two or more persons, when the terms of the power import that the estate or fund is to be distributed among the persons so designated, in such manner or proportions as the grantee of the power thinks proper, the grantee may allot the whole to any one or more of such persons in exclusion of the others." What was sought was the intent of the grantor of the power, and this rule was finally reached as the true expression of that intent. * * * Again the complaint must be dismissed if the Appellate Division is right as to the meaning of this agreement. If the most that the appellants can claim is merely nominal recognition, then a court of equity will not interfere. It is only in case we adopt the second construction, as we have defined it above, that there should be a reversal. Yet this, we think, was what was in the mind of the parties. They were elderly, childless, each with near relatives. Each had considerable property. Naturally each would wish to benefit his or her own family. The husband was on friendly terms with at least one brother, for he made him his executor. Five months later, after her husband's death, Mrs. Waller did actually make 1919.] Opinion, per ANDREWS, J. [225 N. Y.] substantially such a division. Finally, just as where the meaning of a will is doubtful, a construction should be given which prefers the blood of the testator to strangers (Wood v. Mitcham, 92 N. Y. 375), so should it be here with regard to a contract regulating the disposition of the estates of Mr. and Mrs. Waller. Giving the contract this construction, however, we cannot agree with the contention of the appellants that the will of February 27th, 1911, controls the rights of the parties. The two wills of September 19th did not, themselves, contain the provisions for final distribution upon which the testators had agreed. In themselves they did not fix the rights of the ultimate beneficiaries. The division was to be made by will at a later time according to the judgment of the survivor. It was to take place at the death of him or her and he or she could exercise their judgment at any moment up to that hour. Any prior action was merely tentative. The February will was of that character. It did substantially comply with the agreement. It did show what was Mrs. Waller's judgment at that time. But it could be altered or revoked. When revoked it ceased to be Mrs. Waller's will. It could not be offered for probate. Only the later will could be so offered. "It is no objection to the probate of a will that a testator had made a valid contract to dispose of his property in a different manner than that provided in the will, or that the will offered for probate revokes a will drawn in accordance with the terms of the contract." (Sumner v. Crane, 155 Mass. 483.) A like ruling has been made in Alabama (Allen v. Bromberg, 147 Ala. 317), and in Surrogate's Court in this state. (Matter of Keep's Will, 2 N. Y. Supp. 750; Matter of Gloucester's Estate, 11 N. Y. Supp. 899.) And in Edson v. Parsons (155 N. Y. 555, 564) we stated that the claim in such a case was not that the testator had incapacitated herself from making [225 N. Y.] Opinion, per ANDREWS, J. [Feb., another will, but that her estate was bound by an antecedent obligation. While, however, those for whose benefit the contract was made may not object to the probate of Mrs. Waller's last will, they may enforce the contract in equity. If it is contained in mutual or joint wills later revoked by the survivor, those wills may be carried out, not as wills but as contracts. (Rastetter v. Hoenninger, 214 N. Y. 66.) But this contract, as we construe it, was that the survivor should by will distribute the total estates in a certain manner. This Mrs. Waller failed to do. She did not do it by her earlier will. That is revoked. She had a right to revoke it. Simply because it showed her intention at the time it was executed is no more important than if it had been executed without witnesses, or had not been properly signed, or if instead of a will there had been an oral declaration of intention. With an enforcible contract, therefore, for the distribution of this estate between two classes of beneficiaries, but with the discretion as to how each share should be divided unexercised, the court is not helpless. It may not exercise the discretion for Mrs. Waller. But the result is equality. Again the analogy of the Real Property Law as to powers is pertinent. "If the trustee of a power, with the right of selection, dies leaving the power unexecuted, its execution must be adjudged for the benefit, equally, of all persons designated as beneficiaries of the trust." (Sec. 160.) Not literal equality among each member of the class. That class is described by the words "next of kin." In view of the policy of our state, as shown by sections 29 and 98 of the Decedent Estate Law, where a division is to be made under such circumstances, they take per stirpes. This is a somewhat different theory than that advanced in the complaint. There the will of February 27th is recited and the legacies given to each of the appellants by that |