3 Bradf. 126 | N.Y. Sur. Ct. | 1855
The residuary clause of the testator’s will was in these words: “ All and singular the rest, residue, and remainder of my property and estate, whatever and wheresoever, both real and personal, I do hereby give, devise, and bequeath as follows: that is to say, the one equal half part thereof to the three surviving children, hereinbefore named, of my deceased brother Jeremiah Barker, and their respective heirs, executors, administrators and assigns, in equal portions, or share and share alike; and the other half part thereof to the four sons, herein above named, of my deceased brother Abner Barker, and their respective heirs,
In the case now before me, the gift is to certain legatees as tenants in common of the residuary estate, with a provision that if any die before the testator, without leaving descendants, his share shall survive to the other residuary legatees. Can we impute to the testator the extraordinary intention of enabling the survivors to take only in case the deceased legatee left no children, and yet if there be children that the chil