
    In the Matter of the Probate of the Last Will and Testament of Charles E. Turner, Deceased. Byron J. Tillman, Appellant; Blanche Turner and Others, Respondents.
    Fourth. Department,
    July 9, 1912.
    Will —• construction.
    A testator, leaving no.children and knowing very little about his other relatives, disposed of his residuary estate by will as follows : To a certain nephew one share; to a certain niece one share, to each of the children of his brother Gr. one share, to be divided equally among the said nieces and nephews, share and share alike. It was also provided that the share of any dying with issue surviving should be paid to such issue and that the share of any dying without issue should be equally divided among the survivors. At the time of the execution of his will the testator did not know of the death of F., a son of his brother Gf.
    
      Held, that the residuary estate should be divided into eight parts, one to his niece, one to his nephew, one to each of the five surviving children of his brother Gr., and one to B.,. the only child of the deceased F.
    Robsox and Foote, JJ., dissented, with memorandum.
    ■ Appeal by Byroñ J. Tillman, legatee, from part of a decree of the Surrogate’s Court of the county of Monroe, entered in the office of the clerk of said court on the 15th day of January, 1912, construing certain provisions of the will of Charles E. Turner, deceased.
    The proceeding was commenced on the 28th day of July, 1911, in" the Surrogate’s Court of Monroe county, a petition being filed by the Security Trust Company of Rochester asking that two instruments in writing' bearing date February 28, 1910, and May 27, 1910, be respectively admitted to probate as the last will and testament and codicil thereto of Charles E. Turner, deceased. There is practically no question but that the will should be admitted to probate, practically the only contention being whether or not the 11th clause of such will was properly construed by the surrogate.
    
      John T. Ryan and Stephen V. O’Gorman, for the appellant.
    
      M. H. McMath, for the respondent, Blanche Turner.
    
      Leonard B. Bacon, for the executor, respondent.
    
      Wilton Noyes, for the respondents, Helen M. Lucas and others.
   McLennan, P. J.:

It appears substantially without contradiction that the testator was possessed of property of the value of about $45,000 to $50,000; that he left no children or any other relatives or next of kin to whom his bounty should extend. The evidence indicates that he knew little concerning his relatives or next of kin. On the 28th day of February, 1910, he made the will which is the subject of this controversy. By such will he gave to his niece, Grace Joy, a diamond stud; to the oldest living son of his brother George a ring; to the second oldest living son of his brother George another ring and watch, and to six others, not relatives, as many specific legacies. By the will the testator distributed the residue of the estate according to the 11th paragraph which reads as follows:

“Eleventh.. All the rest, residue and reversion of my estate, both real and personal, I give, devise and bequeath as follows: ‘ to my nephew, Byron J. Tillman of Buffalo, 1ST. Y., one share; to my niece, Grace Joy of Boise, Idaho, one share; and to each of the children of my brother, George Turner, one share, to be divided equally among my said nieces and nephews, share and share alike. I direct that the share of any dying with issue surviving shall be paid to such issue and that the share of any dying without issue surviving shall be equally divided among the survivors.”

There were at the time of testator’s death the following nephews and nieces, beneficiaries of this paragraph: George W. Turner, Fred Turner, Charles C. Turner, Belle (Turner) Shumway and Helen M. (Turner) Lucas, all'children of testator’s brother George;- Grace Joy, and Byron J. Tillman, the appellant, who has been confined for some years in the Buffalo State Hospital. There was also a grandniece, Blanche Turner, the only child of Frank Turner, another son of testator’s brother George, and this Frank was dead at the time of the execution of the will, but there is no evidence that testator knew of Frank’s death. The evidence shows that he knew' very little about George’s children, having had no answer to an advertisement for them.

Upon all the facts the learned surrogate construed the 11th paragraph to mean that the residue of the estate should be divided into eight parts, one to Grace Joy, one to Byron J. Tillman, one to each of the five surviving children of George Turner, and one to Blanche, the representative and only child of the dead Frank Turner.

We think the learned surrogate was right in deciding as he did; that entirely independent of punctuation, upon which reliance is placed by the appellant, it seems absolutely clear that the testator intended that the residuum of his estate should be distributed as the learned surrogate decreed.

It follows, therefore, that the decree of the Surrogate’s Court should be affirmed, with costs payable by the estate.

All concurred, except Robson and Foote, JJ., who dissented in a memorandum by Robson, J.

Robson, J. (dissenting):

The 11th clause of the will gives (as the surrogate has held) one share of the residue of testator’s property to each the children of his brother, George Turner. So construed, the will designated George’s children as a class to each of whom a share was given. The further direction of this clause is that the share of any legatee designated therein is to be paid to the issue of such legatee in the event of. his dying. Frank Turner was a son of George Turner, and had died before testator’s death, leaving one child, the respondent, Blanche Turner. No share of the residue was given by the will to Frank Turner, for he was not living at the time the will was made. Therefore, as to his issue there was no share to which the direction to pay to the issue of a legatee who might have died could apply. For that reason Blanche Turner is not entitled to any share in the residue of the estate. (Pimel v. Betjemann, 183 N. Y. 194, 199.)

Foote, J., concurred; and also on the ground that the testator intended that the residue should be divided into thirds instead of eighths.

Decree affirmed, with costs to appellant and with separate ■ bills of costs to the respondents, payable out of the estate.  