42 N.J. Eq. 500 | New York Court of Chancery | 1887
The bill is filed for a construction of the residuary clause of the will of Jacob H. Outcalt, deceased. The clause is as follows :
“ I do further order and direct that after the decease of my said wife, Mary, all her just debts and funeral expenses shall be first paid out of my remaining estate, and the residue thereof shall be divided among my several children, share and share alike; and in the event of any of my said children dying before my said wife and leaving issue them surviving, then such issue shall be entitled to and receive their parent’s share, the same as said narent would receive were he or she then living.”
The testator left five children. He had also two grandchildren — the children of a son who died in the testator’s lifetime, and before the making of the will. His widow (whom he ap
“ And in case of the death of any of my said nephews and nieces, leaving issue, then I direct that such issue shall take the share that his, her or their deceased parent would have taken if living.”
“ In the event of the death of any one of the said grandchildren before he or she shall arrive at the age of twenty-one years, then and in that ease I order and direct my executors to pay the share of him or her so dying to the mother of the child, if living.”
It was held that the mother of a grandchild who had died in the testator’s lifetime was entitled to an equal share with the other grandchildren. In Potter’s Trust and Adams v. Adams, Vice-Chancellor Malins, criticising Christopherson v. Naylor, 1 Meriv. 320, places the decision upon a principle which he lays down as that which he thinks would put the law upon the subject on the most rational footing, viz.: Wherever there is a gift to a class, with a gift by substitutipn to the issue or children of those who shall die, the children take what their parents would have taken if living at the testators death, without regard to the question
In the case under consideration, the gift to the issue is an independent gift. There will be a decree advising the administrators that the children of Hemy Outcalt, deceased, are entitled to that share of the residue to which he would have been entitled had he survived the widow.