34 N.J. Eq. 1 | New York Court of Chancery | 1881
Meyer Trieste, late of Newark, died in December, 1878. By his will he gave all his real and personal estate, subject to and charged with the payment of his debts and funeral expenses, and certain pecuniary legacies, in the following shares : One-fourth to each of his daughters, Eanny, Cecilia and Rosa, and their heirs and assigns forever, and the other fourth to his executors, or such of them as should qualify, in.trust, to invest it, and pay the interest to his son Phineas for life, and at the death of Phineas, to divide the principal among his daughters, “or their heirs,” in equal parts or shares. And he provided as follows:
In the case of the death of any of my said daughters before my decease, or before the death of my son Phineas, or before receiving her bequest, leaving lawful issue, such issue is to take the bequest or share to which his, hel- or their mother would be entitled, if living.”
Prior to September 2d, 1879, the executors paid all the debts and pecuniary legacies, and nothing remained after that date but to convert the personal estate into cash and make division, which might have been done at almost any time during the year 1880. It was deferred merely in order that one of the executors, who resided in Georgia, might be present, and take part therein. In December, 1880, Rosa, one of the testator’s daughters, died testate, leaving a husband and children. The question is, whether the one-fourth of the estate given to her by her father’s will, is payable to her children or to her executors. The gift is to her, and vested in her, at the testator’s death. The testator, indeed, provides that in case any of his daughters shall predecease him or Phineas, or die before receiving her share, it shall go to her issue. His general object in this provision was probably to prevent a lapse, which he seems to have thought would