Will of Harrington

142 Wis. 447 | Wis. | 1910

Timlin, J.

This is a suit for the construction of the will of Nicholas M. Harrington, who died May 30, 1888, and whose will was admitted to probate in the county court of Walworth county on July 17, 1888. The testator left surviving him his widow, Catherine M. Harrington, and Frank C., John B.} and George N. Harñngton, and Jennie E. Bowers, née Harrington, his children and only heirs at law. Jennie E. Bowers married after the execution of the will and before the death of the testator, but she had no children living at the date of testator’s death. Two were afterward born to her, each of which lived but a few days. She is still living. Frank 0. Harrington died unmarried and without issue on. September 22, 1905. John B. and George N. Harñngton are still living, unmarried, and -without children. Catherine M. Harrington, testator’s widow, died September 8, 1900.

This suit was begun May 21, 1907. In the will Jennie E. Bowers is called “Jome” and sometimes “Jennie.” The will was evidently written by the testator, and from among its rambling, confused, and incoherent provisions the following are selected as indicating the general plan of the testator in the disposition of his property:

(1) Give and bequeath to my widow Catherine M. Harrington, sister Julia A. Crosby, daughter Jane E. Harñng-ton the use of the whole of my estate, real and personal, during their natural lives, unless either one should marry, then to be provided as hereinafter mentioned.

(2) After the death of Catherine M. Harrington and Julia A. Crosby I give and bequeath the use of the Inlet Farm to Frank C. Harrington during his natural life, and after his death to descend to his heirs. Also I give and bequeath all the personal property belonging to or connected with said farm to Frank O. Harrington after the death of Catherine M. Harrington and Julia A. Crosby.

(3) I give and bequeath the use of the Prospect Earm, during their natural lives, to my sons John B. Harrington and George N. Harrington after the death of Catherine M. Harrington and Julia A. Crosby, to descend to the heirs of said sons after their death. All personal property on the farm after the death of Catherine M. Harrington and Julia A. Crosby to become the property of John B. and George N. Harrington. After the death of my said sons John B. and George N. Hamngton said land is to descend to their heirs.

(4) I give and bequeath to my daughter Jermie, should she marry, the use of two dwelling houses (described) ; also give and bequeath to her after the death of Catherine M. Harrington and Julia A. Crosby the use of a piece of land (described) ; also give and bequeath to her after the death of Catherine M. Harrington and Julia A. Crosby the use of another piece of land (described). All of said property being real estate willed to my daughter is given to her during her natural life and at her death is to descend to her heirs.

(5) In case of the death of either'one of my children, the property, real or personal, willed to either of them is to be equally divided to the remaining living heir of mine, subject to the same law of descent and be governed by the same rule as is the property willed directly to them in this will.

(6) I give and bequeath the use of all the remaining real estate to Catherine M. Harrington and Julia A. Crosby and my daughter during their natural lives, and afterward the use to be equally divided between my heirs during their natural life.

(I) Executors are to have the right and power to convey by good and lawful title certain described land not included in the foregoing devises. Also they may sell and convey, if all parties interested are united, two of the tracts devised to Jennie subject to the prior use of Catherine M. Harrington and Julia A. Crosby.

(8) A small piece of real estate is given to his brother Milton S. Harrington during his natural life; at his death this to descend “to my nearest heirs.”

(9) “Now, as to my personal property, I give and bequeath the usé of it (except such as may hereinafter be excepted) to my beloved wife Catherine M. Harrington, Julia A. Crosby, and my daughter Jennie A. Hamngton, during their natural lives.”

(10) “Should my daughter marry, my executors are to pay her the sum of $500 in money and charge the same to her part, as a part of her share of the personal property.

(11) “I also give and bequeath to my daughter Jane E. Harrington the dividends on five shares of the capital stock of the First National Bank of Racine, and I hereby appoint and name the cashier of said hank and his successors as trustees and guardian of said hank stock to take care of said stock for the use and benefit of my daughter Jane; but in no event is she, my daughter, or said trustee, authorized to sell said stock; and in case of the death of my daughter Jane without issue, said trustee is authorized to pay the dividends to my remaining heirs, but said stock is in no way to be disposed of; but is to remain in said bank during the existence of said bank, to be kept by said cashier for the use and benefit of my heirs.”

(12) I give and bequeath the dividends of five shares of the capital stock of the First National Bank of Elkhom to my beloved sister Julia A. Crosby, during her life, and appoint the cashier of said bank and his successors trustees for the care and management of said stock, and pay the dividends to said Julia A. Crosby, but neither said trustee or said Julia A. Crosby is to have the power to sell the stock. This bequest is made in the place of a note said Julia A. Crosby holds against me, and pay one year after my death, which note is hereby revoked and canceled.

(13) All the rest of my personal property is to remain just as it now is, subject to and under the control and management of my beloved wife Catherine M. Harrington, Julia A. Crosby, Jane E. Harrington, Frank C. Harrington, John B. Harrington, and George N. Harrington, whom I appoint and name as my executors; and to have the entire control of my property, real and personal, and to carry out the intent and spirit of this will, and all sales, and all business is to have the concurrence and unanimous consent of all said executors. No bonds to be required or given by said executors.

(14) The household property, books, carriages, axe subject to the use of my wife Catherine M. Harrington and Julia A. Crosby, and Jane JE. Harrington, Frank C. Harrington, John B. Harrington, and George N. Harrington, and any change or sale is to be subject to the consent of the above named, executors, and at the death of my wife Catherine M. Harrington and Julia A. Crosby, and in three years thereafter, an equal division is to be made, share and share alike, between my children or such of them as may be living; except the personal property reserved to the parties or persons to whom it is willed, remaining on the farms at the time of the death of said Catherine 1VI. Harrington and Julia A. Crosby as heretofore provided in this will.

(15) All the money, stocks, or other personal property is to be equally divided between my children except the $500 provided for my daughter in case she should marry, which in that case is to be deducted from the amount of money found due her on an equal division of my personal property to be made within three years after the death of my wife and Julia A. Crosby, except the personal property mentioned as being on said farms, which said amount on said farms is not to be invoiced, and is to go and belong to my respective sons to whom said land is willed.

(16) In order that there may be no misunderstanding in regard to my meaning, I intend my wife and Julia A. Crosby shall have their living and support out of my property during their natural lives unless they should marry, and in that event they are to each have their support during their natural lives, but no part of said property is to go to the support of their husbands, and the control of my property shall pass into the hands of and be' under the control of my children Frank C., John R., Jane R., and George N. Harrington, and they are to give a reasonable support to Catherine M. Harrington and Julia A. Crosby during their natural lives.

(17) In case my daughter shall marry, my executors heretofore named are to pay her the sum of $500, but no more until three years after the death of my beloved wife and Julia A. Crosby. After the death of the last named, then my daughter Jane R. Harrington is to have the use of the real estate provided for her in this will, during her natural life, and then to descend to her heirs.

(18) As I have $2,000 life insurance due me at my death my executors are directed to take up or buy a certain mortgage against my brother Milton S. Harrington’s house and lot where he now lives and hold said mortgage or take a new one at three per cent, interest annually during my said brother’s natural life, allowing my said brother to pay said mortgage at his pleasure.

(19) All surplus money made from my estate by my said -executors and any and all money due or to become due my ■estate is to be put at interest after the support of the parties hereinbefore provided.

(20) I hereby nominate and appoint James E. Lattimer and Inglis as trustees to take charge of any and all money. heretofore loaned by them or jhey may hereafter receive, which is to include all my personal estate in notes, mortgages, and the money, if any, that may remain in the hands of H. B. Claflin & Co. of New York, also my life insurance money, and said Lattimer and Inglis are to account to my executors for said money that they may receive at the rate of seven per cent, per annum, and reinvest the same and account once or twice in each year for all the money they may have in or under their control. Any moneys otherwise provided for or disposed of is not to be subject to said Lattimer and Inglis, and after and at the end of ten years said money (and its accumulation) is to be equally divided share and share alike, but in no instance shall either or any of my heirs have the power to sell or in any way dispose of said sum of money and its accumulation until said ten years have expired.

(21) The $500 now-forming a part of the investment of E. Lattimer & Co., of which I am a partner, is to remain in said banking firm, and my property of any and all kinds is to remain as liable for all the liabilities of said banking firm the same as though I was living, and all dividends shall be paid to my wife, this provision to remain and be in full force until the dissolution of said banking firm, either by death or dissolution, and if said banking firm shall cease by either the above causes before the expiration of ten years, then the said banking firm shall pay all the money due my estate to the said Lattimer and Inglis to form a part of the money subject to their control, and at the end of ten years to be equally divided with my living heirs.

(22) The intention being to have my wife Catherine M. Harrington, my beloved wife’s sister Julia A. Crosby the entire use and direction of my real and personal property during the natural lives, and then if the ten years have expired of tie agency of said Lattimer and Inglis my personal property is to be divided equally amongst my four children, share and share alike, but the division of my personal property is not in any event to be made until the death of my beloved wife Catherine M. Harrington and Julia A. Crosby. ■ Should each of the last named die before the ten years, said personal property is to remain in the hands of said Lattimer and Inglis, ... it being the intention of said testator that said personal property is to be equally divided between my children living at the time they may be entitled to said property.

(23) In the event of the death of all my children and any and all children or heirs being their descendants, $5,000 is hereby donated to Nashotah Theological Seminary (Nasho-tah House). I give and bequeath to Christ’s Church in Delavan, Wisconsin, the sum of $500 to be laid out in purchasing a church bell to be put in the tower of said, neither of these donations are binding or to be paid unless in case of the death of all my said children and their heirs meaning in children or grandchildren that may be born thereafter.

(24) The rest of my property, real and personal, in the event of the death of all my children and their children or heirs, is to be.share and share alike divided between my half-brothers and half-sisters.

The circuit court held that Catherine M. Harrington and Julia A. Crosby took a life estate or interest in all the real and personal property except that real estate devised to Jennie in the preceding paragraph 4, the bank stock described in paragraph 11, the bank stock described in paragraph 12, the household property, etc., described in paragraph 14, the $500 described in paragraph 21, the real estate devised by paragraph 8, and that this life estate and interest was valid and subject to the management of the executors named in paragraph 13.

As to the real estate in paragraph 4 and the $500 mentioned in paragraph 17, the court held that the latter should be paid over to J ennie and deducted from her share of the personal property on the distribution hereinafter mentioned; that J ennie took a life estate in the real estate mentioned in paragraph 4, lots 18, 19, and 22, in Mock 12, in the village of Delavan, with remainder in fee to her surviving children, if any. What will become of this real property in case of the death of Jennie leaving no surviving children is not found. This disposition of these lots is not excepted to by either appellant.

With respect to the bank stock described in paragraph 11, this should be held in trust by the cashier of the bank, the income thereof to be paid over annually by this trustee to Jennie during her natural life, on her death leaving issue to such issue or their heirs or legal representatives during the corporate existence of the bank, upon the dissolution of the bank the principal to be paid over in equal shares to said issue, their heirs or legal representatives, but, in the event of Jennie dying leaving no issue surviving her, then the income from the five shares of bank stock should be paid over in equal shares to the surviving children of the testator, the issue of any deceased child taking the share which would otherwise have gone to such deceased, and, upon the dissolution of the bank and after the expiration of three years from the death of Julia A. Crosby, the principal of said'five shares to be paid in equal shares to the then living children, if any, of the testator and the issue of any such deceased child, and, in case of the death of all the children of said testator during the corporate existence of the bank leaving no issue surviving, then the principal of said five shares to be paid to the said Nashotah House and to Christ’s Church in the city of Dela-van in the proportion of ten elevenths to the former and one eleventh to the latter. With respect to the other five shares of bank stock mentioned in paragraph 12, the court held that this property was to be held in trust by the cashier of that bank, the income paid over annually by this trustee to Julia A. Crosby during her natural life, and at her death said bank stock would fall into the residue of the personal estate, to be divided and distributed as hereinafter mentioned.

With respect to the household property, etc., mentioned in paragraph. 14, the court held this bequeathed to Catherine M. Harrington, testator’s widow, and Julia, A. Crosby and. the four children of the testator for their use in common during their respective lives, and after the death of all of them, should any of that property remain, the same is to be distributed as a part of the residue of the estate. This is not excepted to by either appellant.

With respect to the $500 mentioned in paragraph 21, that is to remain part of the capital of the banking firm mentioned, and the income paid over annually to Catherine M. Harrington, widow of the deceased, during her natural life. In case of the dissolution of the banking firm before the expiration of ten years from the death of the testator, this principal to be paid over to Messrs. Lattimer and Inglis of Hampton, Iowa, to be invested by them along with other funds of the testator in their hands, and finally divided and distributed in the same manner as other moneys in their hands, and as hereinafter mentioned.

With respect to the estate in paragraph 8 devised by the testator to his brother Milton S. Harrington for life, the remainder in fee vested at once on the death of the testator in his children, subject to said life estate.

With respect to the real estate mentioned in paragraphs 2 and 3 and part of that in paragraph 4, and all that in paragraph 6, the court held that the attempted disposition of that property after the lives in being of Catherine M. Harrington and Julia A. Crosby and testator’s children was void for remoteness, and that the persons ultimately entitled thereto under this will could not be ascertained until after the expiration of more lives than two in being at the time of the creation of the estate. It therefore passed to the heirs at law of testator as intestate property, but subject to the life interest of Catherine M. Harrington and Julia A. Crosby.

The court considered that the will of the testator as to all personal property was valid, and contravened no rule against remoteness; consequently that the disposition of the prop■erty on each of the two farms mentioned in paragraphs 2' .and 3 was valid, and that after the death of Catherine M. Harrington and Julia A. Crosby the personal property on the farm mentioned in paragraph 2, known as the Inlet Earm, because Frank C. Harrington died intestate prior to the death of Julia A. Crosby, will go to the surviving children of the testator, Nicholas M. Harrington, in equal shares under paragraph 5. The personal property on the Prospect Farm mentioned in paragraph 3 is upon the death of Julia A. Crosby to become the property of John B. Harrington and George N. Harrington, sons of the testator, equally and in common, provided they are then living. What becomes of this in case both of the last-named sons of testator have deceased prior to the death of Julia A. Crosby and leaving no issue is not found or adjudged.

The circuit court further decreed that after the death of Julia A. Crosby (more than ten years having elapsed since the death of testator) the interest in the capital of the banking firm of E. Lattimer & Co., if that firm has not dissolved, and the avails of that interest if the banking firm has dissolved, and all the money and property of testator in the custody of Lattimer and Inglis, and all surplus or increase realized by the executors, are to be distributed equally among the then living children of testator and the issue then living of any such deceased child; that three years after the death of Julia A. Crosby all the residue of the property left by testator and all real estate of which the executors had a power of sale is to be by the executors divided equally between the children of testator then living and the issue of any such child deceased, such issue taking the parent’s share, but deducting from the share of the daughter Jennie the $500 advanced to her upon her marriage, if in fact, such advance was made.

Gatherine M. Harrington has deceased,, and in one of the briefs of counsel we find it stated that the hanking firm of' E. Lattimer & Co. has dissolved; but we cannot take judicial cognizance of that fact. The judgment of the court below, while it works out a scheme of division and distribution under this will with praiseworthy diligence and ingenuity, M yet faulty, in that it does not finally dispose of all questions of construction possible to be disposed of, and does not sufficiently regard existing facts and conditions, such as the dissolution of the firm of Lattimer & Co., which is not found either way, the sale of some of this property in the testator’s lifetime, and extrinsic facts of this nature generally. But the parties affected by these defects in the judgment do not appeal, and the investigation of such questions is not involved in the appeal of the Nashotah House and the half-brothers and half-sisters, who are the only appellants. We shall therefore consider only the questions raised by these appellants.

'The half-brothers and half-sisters of testator contend with respect to the real property that the circuit court should have construed the life estate or interest given by the will to Catherine M. Harrington and Julia A. Crosby as an estate for only one life, namely, the life of the survivor of these two,, and that each of the four children of testator then took another life estate which terminated with his life. If he dies leaving issue, then a one-quarter interest in the real estate vests in this issue. If he dies leaving no issue, a quarter interest in the real estate vests in the half brothers and sisters subject to the legacies to Nashotah House and Christ’s Church. ■ But this seems to us to contravene both the law and the intention of the testator. All inquiry concerning whether Catherine M. Harrington and Julia A. Crosby took as joint tenants or tenants in common seems to us irrelevant and immaterial.

In the first place, a devise of real estate during the life of the longest liver of two designated persons in being is, and tas always teen, considered a devise for two lives in being, just as a devise of real estate during tte life of the longest liver of ten designated persons in being is for ten lives in being, and this is what was referred to by the expression, “all the candles must be alight at once.” It is not the number of life estates created which we are to consider, but the number of lives in being which must expire before it can be ascertained in whom the title to the property shall vest. Jennings v. Jennings, 7 N. Y. 547; Purdy v. Hayt, 92 N. Y. 446. The lives in being designated by the testator may' be the lives of the devisees or of beneficiaries under a trust, and the carrying out of the will may require the restraint of alienation during these lives, because during that time the remaindermen are contingent and unascertainable, and therefore the power of alienation is suspended, or because the trust created by the will may continue over the number of lives allowed and during that time alienation be impossible, under sec. 2091, Stats. (1898), in all cases where such alienation would be in contravention of the trust. Or persons in being at the creation of the estate who do not take under the will at all may be designated and the number of persons so designated constitutes the number of lives in being, although the suspension of alienation can only continue during the life of the longest liver of the persons so designated.

In the instant case, even on the above-mentioned theory of counsel for the half brothers and sisters, three lives in being must expire before it could be ascertained who would ultimately take the property, or whether the title would ultimately vest in some unborn grandchild of the testator, and hence there would be a suspension of the power of alienation during these three lives. But it is, we think, contrary to the intention of the testator as evidenced by this will to-hold that, after the decease of Catherine M. Harrington and Julia A. Crosby, each of the testator’s children took only a life-estate in one fourth of testator’s real property which terminated with his death, and then vested in the half brothers and sisters in default of issue.

Paragraph 5 provides that in case of the death of either one of the four children the property, real or personal, willed to either of them he equally divided to the remaining living heirs of the testator, subject to the same rule of descent and he governed by the same rule as is the property willed directly to the testator’s children. This relates to the death of either one of testator’s children after the death of the testator. Korn v. Friz, 128 Wis. 428, 107 N. W. 659; Chesterfield v. Hoskin, 133 Wis. 368, 113 N. W. 647. This for the reason that the estate devised to testator’s children is a life estate, and because from the whole purview of the will, including the legacy to Nashotah Bouse and the devise to the half brothers and sisters, it is apparent that the testator intended that neither this legacy nor the devise to the half brothers and sisters should take effect in whole or in part so long as there was a child or grandchild of the testator living. This fifth paragraph must also he construed with reference to the disposition in the will made of the two farms called the Inlet Earm and the Prospect Earm, and the disposition made of the real property to Jenme. “The remaining living heirs” of testator would he his surviving children and the children of any such child deceased. But the property is to be equally divided to the remaining living heirs. This, to harmonize with other provisions of the will relating to the devise of real estate, must he taken to mean the death of either one of the testator’s children without issue, and these two words may be supplied. A provision in the will like that in paragraphs 2, 3, and 4, expressly providing that at the termination of a life estate in real property the property should descend to •the heirs of the life tenant, would he contradicted by this paragraph 5 if we should hold that in case of the death of one of the same life tenants leaving children this property should not vest in these children, but should be equally dividecl between such children and all the other living heirs of the testator. They must be harmonized, if possible, and the way to harmonize these provisions is to construe the fifth paragraph as applying to the case of the death occurring: after testator’s death of either one of testator’s children without issue. In that case the property, real or personal, willed to either of testator’s children is to be divided equally to the remaining living heirs of testator, which includes children of testator and certain grandchildren of testator under our statute. But this estate so passing from the child who dies without issue to the remaining living heirs of the testator is to be subject to the same law of descent and governed by the same rule as is the property willed directly to the children of testator. This must mean that the property so passing over to the survivors was intended to be affected by the same quality of survivorship, and so, in case of other deaths of testator’s children without issue, the whole property would accumulate in the last survivor, except as it had been diminished by vesting in part in the issue of children who died leaving issue. In such case, at the time of the death of that child of the testator who died first without issue three lives in being at the creation of the estate would have expired, and the real property would pass to the surviving brothers and sisters, children of the testator, until the death of another of the children without issue, when the share he received through the death of his brother or sister without issue, together with his own share, would pass to the two surviving children of the testator, and so on. On the other hand, in case of the death of any one of the children of the testator leaving issue surviving him, it could not be known until the expiration of three lives in being at the time of the creation of the estate whether such issue or the other brothers and sisters would take. All this leads to the conclusion that the circuit court properly construed the will with reference to the real property.

In the appeal by Nashotah House, called in the will Ha-shotah Theological Seminary, only the disposition by the court of the personal property and of the real estate in respect to which the power of sale is given is criticised. The learned counsel for that appellant mates no attack upon the ruling of the court below regarding the invalidity for remoteness of the devise of the other real estate. But he contends that the will should have been construed as vesting the title to the personal property and real estate which is subject to a power of sale (excepting that personal property which is otherwise specifically bequeathed) in the executors named in the will in trust to pay the income thereof- to Catherine M. Harrington and Julia A. Orosby during their natural lives, and upon the death of the survivor to pay the net income thereof to the then surviving children of said testator during their natural lives, and upon their death to the descendants of testator, and, in case no such descendants should survive them, to pay to the appellant Nashotah House the sum of $5,000 and to Christ’s Church in Delavan, Wisconsin, the sum of $500, and divide the residue, share and share alike, between the half-brothers and half-sisters of the testator or their heirs. The effect of this construction of the will would be to establish a trust .with respect to the personal property with the executors as trustees, which would continue during the lives of Catherine M. Harrington and Julia A. Crosby and the lives of the four children of the testator, the title to the corpus of the trust estate then to vest in the grandchildren of testator if any such were living at the death of the last surviving child of the testator; if none was living, then to vest in -the half brothers and sisters of the testator and the legacies to Nashotah House and Christ’s Church to become due and payable. This no doubt is proper and permissible in all cases where the establishment of such trust with the executors as trustees is necessary to carry out the intention of the testator. Swarthout v. Swarthout, 111 Wis. 102, 86 N. W. 558.

The substantial difference between this disposition of the -estate of the testator under the will and that disposition made by the circuit court is that the disposition proposed by the counsel for Nashotah House rejects the view of the circuit court that the testator intended that this personal property, not otherwise specifically bequeathed, should be distributed in part among the children and grandchildren of testator who might be living at the death of Julia, A. Crosby by one distribution, and by another distribution three years later the whole residue should be distributed among his children and grandchildren then living.

Are these provisions inconsistent with the intention on the part of the testator to continue his personal estate in the hands of his executors in trust past these periods fixed for distribution and until all the grandchildren of testator, if any there be living at the death of the last living child of testator, have died, and so preserve the legacies for Nashotah Mouse, Christ’s Church, and the bequest to testator’s half brothers and Sisters ? .We think they are. The fact of distribution at a time certain to arrive must have loomed up larger in the mind of this layman than mere legal forms of expression. The principal disposition of his personal property had more weight and significance with him than the alternative disposal or the alternative payment of legacies. Colby v. Doty, 158 N. Y. 323, 53 N. E. 35. It cannot be presumed that after distribution among his children of this personal property he intended there should continue restrictions on its use, enjoyment, and disposal, and that at the end ■of the life of the survivor of his children or grandchildren, notwithstanding this distribution, a claim should accrue or ■continue in favor of the appellants or either of them. “In the event of the death of all my children and any and all children or heirs being their descendants, $5,000 is hereby ■donated to Nashotah Theological Seminary.” This is the language of testator with reference to that legacy. “Neither of these donations are binding or to be paid unless in the case of the death of all my said children and their heirs meaning in (any) children or grandchildren that may be horn thereafter.” “The rest of my property real and personal, in the event of the death of all my children and their children or heirs, is to be share and share alike divided between my half-brothers and half-sisters.” This is apparently not intended to apply to the death of testator’s children and all their heirs during the lifetime of the testator. The words, “and all children or heirs being their descendants,”' forbid this interpretation, as also do the words “my children and their children or heirs.” Reither is it probable that the testator intended thereby an indefinite failure of issue.

The construction given by the circuit court seems to us the most reasonable and to accord best with the probable intention of the testator. As we understand that construction, if there is at the time of the first distribution, to wit, at the death of Julia A. Crosby, any child of the testator living or any child or children of any child of the testator living, the appellants receive nothing from the amount to be then distributed; and if at the time of the second distribution,, three years after the death of Julia A. Crosby, there is any child of the testator living or any child or‘children of any deceased child of the testator living, appellants take nothing out of this final or residuary distribution or out of any property of the testator except the five shares of the stock of the Eirst Rational Bank of Racine. But if at the time of the first distribution there is no child of the testator or issue of any such child deceased living, the appellants take as provided in the will, and in case they do not at that time take because of the existence of some child of the testator or issue of such child deceased, they will take-under the will at the time of the second distribution if at that time there is no child of the testator or issue of any such deceased child living.

By the Court. — Judgment of the circuit court is affirmed..