112 N.Y.S. 157 | N.Y. Sup. Ct. | 1908
Henry E. Davies, the testator, died on the 17th day of December, 1881, and was survived by his widow and six children. By his will he provided that his residuary estate was to be held in trust for his widow during her life; that upon her death the same was to be divided into as many shares “ as nearly equal as may be as I may have children living at the time of the decease of my said wife that the income of each share was to be paid quarterly to the child for whom it might be set apart during life, “ and upon the decease of either of said children leaving issue, then to transfer and convey the share of such child so dying to such issue, and I do give and bequeath the same to such issue, to his, her and their heirs forever. In case either of my said children shall die leaving no issue, then I give and bequeath the share set apart to any child so dying to my children then surviving, to be divided between them, share and share alike.” Testator’s six children survived the testator’s widow and the residuary estate was divided into six shares, one for each of his children. Testator’s eldest son, Henry E. Davies, Jr., died on September 6, 1894, leaving him surviving one child. Lucy D. Swift, a daughter of the testator, died on February 4, 1897, leaving her surviving two children. Francis H. Davies, a son of testator, died on February 27, 1906, without issue. The question is now raised as to the disposition to be made of the share held in trust for him. It is claimed by the three surviving children of the testator, while the issue of the two deceased children of testator assert a right to share therein. It will be noted that the will expressly declares that “ in case either of my said children should die leaving no issue, then I give and bequeath the share set apart to any child so dying to my
Judgment accordingly.