97 N.Y.S. 321 | N.Y. App. Div. | 1905
The testator by the 1st clause of his will bequeathed to his- wife the interest on a certain mortgage for $-25,000, during her life in lieu of dower, and provided'that “ at her death the said principal.sum of twenty-live thousand dollars to be equally divided between my sons or.their heirs, share and share.alike.” At the time of making the will the testator had four sons living, only two of whom survived‘him. The sons who predeceased the testator left -issue. The question is Whether the bequest of.- this mortgage, was to the sons as a class ■so .that the two who survived' their father took or whether it was the intention of the 'testator to devise it to the four sons living at the time he made the will so that the issue of the deceased sons would take their parents’ share. It is .important to note that concerning the heirs of the sons he Uses' the disjunctive which implies a substitution of the heirs for a deceased son. He directs that upon the death of his wife the principal of the mortgage be divided equally between “ my sons or their heirs.” He anticipated that one or mofe of his sons might die prior to the division, at least, and the question is -did he not anticipate that 'this might happen before his own death and intend that in either event the heirs of the deceased son should take the share intended for the. parent ? Light is shed on the true construction of the will by the 2d clause in which he names his four sons and devises and bequeaths to them “ or their heirs” the rest, residue and remainder of his. property in equal shares. It is not questioned but that the issue of the deceased sons take their parents’ share in the remainder here bequeathed and such is and would be, even if the word “ heirs ” was not used, the construction required by‘section 52 of the Statüté of. Wills (2 R. S. 66) which provides that “ whenever any estate, real or personal, shall be devised or bequeathed to .a child or other descendant of-the testator, and such legatee or devisee shall die during ihe -life-time of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall
It follows, therefore, that the learned surrogate properly construed the will, and the decree should be affirmed, with separate bills of costs to the respondents appearing separately, payable by the appellant.
O’Brien, P. J., Ingraham and Clarke, JJ., concurred.
Decree affirmed, with separate bills of costs to respondents appearing separately, payable by the appellant.