
    Matter of the Judicial Settlement of the Estate of Charity M. Butler, Deceased.
    (Surrogate’s Court-, Kings County,
    April, 1906.)
    Wills — Interpretation and construction — Designation and description of persons — Rules and implications — Gift to a class referred to testatrix’s death.
    Where subsequently to the making of a will directing that one-fifth of the residue of the estate should be divided into five parts, one of which was bequeathed to a son and the remaining four-fifths thereof in trust for her seven grandchildren to be distributed equally among them upon the youngest attaining majority, one of the grandchildren dies and another child is born to the son and thereafter testatrix reaffirms her will by a codicil thereto in which the contingency arising from the death of the one grandchild and the birth of the other is not provided for, the will must be construed as a gift to such of her grandchildren as were living at the time of her death and the youngest grandchild is entitled to share equally with Ms brothers and sisters and the trust continues until he arrives at the age of twenty-one years.
    Pbooeediitg upon the judicial settlement of the accounts of a trustee.
    Carrington & Pierce, for trustee»
    H. PL Whitehouse, special guardian for Wellington E. Butler. '
    Godfrey Goldmark, for Adelaide B. Ward and others.
   Church, S.

The deceased herein made a wjíl in which", after making various provisions for certain of her children (of whom she had five), she made the following provision for one of her children and for her grandchildren of such child: “One equal one-fifth of the residue shall be again divided into five parts, one of which I give and bequeath to my son, Edwin Butler, and the remaining four-fifths of said one-fifth to my said son, Orlando W. Butler, in trust, how* ever, for my grandchildren, Frederick A., Adelaide, Edwin Jr., Lillian, Howard, Florence and Ethel, the children of my said son Edwin, to be divided between them, share and share alike, when the youngest of them shall have reached the age of twenty-one years,”

Subsequently to the making of such will, one of said grandchildren, Frederick A. died; and, also, the said son, Edwin Butler, had another child whose name is Wellington F. Butler. Subsequently to the happening of both these events, the testatrix made a codicil to her last will and testament in which she reaffirmed the same; but in such codicil she made no specific provision to cover the contingency arising from the death of Frederick A. Butler and the birth of Wellington F. Butler.

The special guardian, representing the said Wellington F. Butler, contends that this paragraph of the will should be construed as a gift to the children of Edwin Butler who were alive at the time of the death of the testatrix and that, therefore, the infant, Wellington F. Butler, is entitled to shaie in it the same as his brothers and sisters and that the said trust should be continued until the said infant has reached the age of twenty-one years.

It appears that the executors have previously accounted herein and that the question of the construction of this paragraph of the will was made the subject of judicial examination by the surrogate and that the surrogate interpreted the clause in accordance with the contention of the said special guardian; but it also appears that the said infant, Wellington F. Butler, was not made a party to such proceeding and, therefore, the parties seek to have such question again determined. Irrespective of whether the former decree herein is re§ adjudicata as to the rights of the infant, Wellington F. Butler, the position taken by the special guardian on his behalf seems to me to bo correct, as also does the previous decree of the surrogate. The special guardian has very carefully framed an excellent brief showing, not. only that the decision of the surrogate was in accordance with the decisions of the higher courts, as they had been handed down at that time, but that the same rule has been followed in subsequent, recent decisions by the Court of Appeals; and the position of said special guardian is therefore sustained. A decree will be entered declaring that all the children of the said Edwin Butler in existence at the time of the death of the testatrix are entitled to share in such trust fund, and that such trust should be continued until the infant, Wellington F. Butler, arrives at the age of twenty-one years.

Let a decree be therefore presented accordingly.

Decreed accordingly.  