
    In the Matter of the Final Judicial Settlement of the Accounts of Samuel R. Wells, as Executor of Eunice B. Cook, deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 14, 1888)
    
    Will—Construction op—When legacy lapses.
    The testatrix bequeathed and devised separate aliquot shares of the residuary of her estate after certain bequests were, paid to eight persons, four of whom died during her life-time, leaving children. Held, that the shares of those devisees, so dying before testatrix, lapsed, and that such shares descended to her heirs at law. Following Van Beuren v. Dash, 30 ST. Y„ 393.
    Appeal by Frederick Fagan et al., from the decree of the surrogate of Seneca county, making a final distribution of the assets of the estate of Eunice B. Cook, deceased, who died on the 22d day of October, 1885, leaving a last will and testament, dated November 5, 1878, in terms disposing of all her property, both real and personal.
    The will contains several specific devises and bequests of parcels and items of real and personal property, none of which were brought in question on the accounting. The appellants claim the right to share in the distribution of the balance of the estate, which amounted in the aggregate to the sum of $44,432.43, under and by virtue of the tenth clause of the will, which is as follows:
    
      Tenth. “Ido will, give and bequeath and devise all of the rest, residue and remainder of my estate, of all kinds and descriptions, as follows, and subject to the following provisions, viz.: .One equal one-eighth part thereof unto Joseph Cooke, of Lowell, Mass.; one other equal one eighth part unto Persis Parke, of Lowell, Mass.; one other equal one-eighth part thereof unto Chester Cooke, of Janesville, Wis.; one other equal one-eighth part thereof unto Nathan Cooke, of Preston, Ct.; one other equal one-eighth part thereof unto Josephine Ferrie, of Middletown, Ct.; one other equal eighth part thereof unto the children of Isaac H. Cooke, late of Preston, aforesaid, share and share alike. One other equal one-eighth part thereof unto the children of Dwight W. Cooke, late of Norwich, Ct., share and share alike; and the other equal eighth part thereof unto the children of Christia Gore, late of Brooklyn, N. Y., share and share alike, to have and to hold the same to them, their heirs and assigns forever. But I do expressly authorize and empower my said executor to sell and convey and dispose of said residue and remainder of my said estate, above referred to, when and as he thinks best; but if he shall sell all or any thereof, the proceeds thereof of the parts or part so sold shall be divided and disposed of finally as hereinbefore indicated, and said respective parts or portions of said residue and remainder are herein and hereby bequeathed and devised subject to such power of sale by my said executor, but he need not execute such power of sale unless he deems it best to do so. And from the time of my decease until said residue and remainder is finally disposed of, under this will, my said executor shall have charge of said residue and remainder, and take possession thereof and collect the rents, issues and profits thereof and divide and pay over the same to the parties entitled thereto, after deducting therefrom his fees and commissions and necessary expenses of collection, taxes and repairs, if any.”
    The testatrix derived title to all of her estate as a gift from her husband, Calvin W. Cooke, who died in 1873, leaving a last will and testament by which he devised and bequeathed to her all of his property. The persons appointed legatees and devisees in the tenth clause of said will were all the next of kin of Calvin W. Cooke at the date of the said will of Eunice B. Cooke; the persons whose names were given in that clause being his brothers and sisters. The-sixth finding of fact of the referee is as follows:
    “6. After the making of her said will and before the death of the testatrix, four of the persons named in the said tenth clause died, viz., Persis Parke, who died on July 23, 1880. She was born on May 8, 1796; Chester Cooke, who died September 2, 1880. He was bom March 27,1798; James Cooke, who died April 10, 1884. He was born October 4, 1794; and Nathan Cooke, who died May 25,1885. He was bom November 20, 1802.”
    The appellants are the children and heirs-at-law, next of kin and successors in interest of the said Persis Parke, Chester Cooke, James Cooke and Nathan Cooke, who are mentioned in the tenth clause of the will. The surrogate held, as a conclusion, that the several legacies and devises to Persis Parke, Chester Cooke, James Cooke and Nathan Cooke, contained in the tenth clause of the will of said decedent on the death of the said devisees and legatees, lapsed, and that as to the portion of her estate given to them in that clause the testator dies intestate, and the same passed and descended to the testator’s next of kin and heirs-at-law, and excluded the appellants from sharing in its distribution. From this decree the appellants have taken an appeal.
    
      Slickney & Shepard, for app’lts; Charles A. Hawley, for resp’ts.
   Barker, P. J.

—The precise legal proposition presented and discussed by the learned counsel for the appellants, and upon which he relies for the purpose of procuring a modification of the surrogate’s decree so as to permit the appellants to share in the distribution, received full and deliberate consideration in the case of Vanbeuren v. Dash (30 N. Y., 393.) _ The facts upon which the legal propositions are based in this case are similar in every essential particular to those presented by that. The rule of construction there adopted must be followed in disposing of this appeal, which leads to a confirmation of the surrogate’s decree.

Decree affirmed, with costs.

All concur.  