
    In the Matter of the Estate of Amos Denton, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    Wills—Constbuction op.
    Testator, by his will, after providing a fund the income of which was to be paid to his wife and daughter during their lives, gave all the residue of his estate to his four children equally, and provided that in case of the death of either leaving issue before either of the parts could be divided, such issue should take its parent’s share; “if without issue, then the survivors to take.” One of the sons died before the widow and daughter of testator, leaving no issue, his children having died before him. Meld, that his share went to the survivors.
    (Dyhmaít, J., dissents.)
    Appeal from decree of surrogate of Queens county, settling the account of William L. Denton, as surviving executor. . Testator died in 1857, leaving him surviving his widow, who died October 8, 1887, and five children. One of the sons, Elias B., died December 24, 1878, leaving a widow, to whom he gave all his property by will. He had had six children, but all of them died before him. His widow claims his share of the residuary estate by virtue of said will. The court below held that the legacy was not dependent on the legatees surviving the life tenants, and hence that it was competent for Elias to dispose of it by will. The surrogate also allowed $500 costs to counsel for the widow of the deceased son, Elias.
    
      Henry A. Monfort, for app’lts ; John Fleming, for resp’t.
   Barnard, P. J.

The testator, by the ninth clause of his will, provided as follows:

uNinth. All the rest, residue and remainder of my estate I give and bequeath to my said four children, namely, Elias B., William L., Elizabeth Hendrickson and Amos, equally between them, and in case of the death of either of them leaving issue before either of the different parts thereof as hereinbefore mentioned can be divided, then such issue to take the share or part the parent would have been entitled to if living. If without issue then the survivors to take.”

The testator provided a fund the income of which was to be paid to his wife and daughter Hannah during their lives. This fund is disposed of by the above ninth clause. Elias B. Denton, one of the distributees, had children, but both Elias B. Denton and his children died while the life estate was outstanding. By the ninth clause the survivors take.' The language is plain; the distribution is after the life estates have passed and the death of Elias happened before the remainder could be divided under the will, and he left no issue to represent him at the distribution. The share therefore went to the survivors.

The decree should be modified so as to so direct the distribution of the fund. Costs to all parties out of the estate. The allowance to be vacated, as the appellant has no claim to the fund.

Pratt, J., concurs.

Dykman, J.,

(dissenting.)—Our conclusion is that the surrogate made the proper disposition of the questions presented by this appeal.

The governing clause of the will is this:

“Ninth. All the rest, residue and remainder of my estate I give and bequeath to my said four children, namely, Elias B., William L., Elizabeth Hendrickson and Amos, equally between them, and in case of the death of either of them leaving issue before either of the different parts thereof as hereinbefore mentioned can be divided, then such issue to take the share or part the parent would have been entitled to if living; if without issue, then the survivor to take.”

Elias B. survived the testator and also lived until after a partial division of the parts of the estate, and he had children, but they all died before him, and thus fulfill all the conditions necessary to an escape from the divestiture of his interest in the residue of his father’s estate.

The first part of the ninth clause gave an absolute estate to the persons named, subject to be divested by the happening of the events specified in the latter portion.

The last words, ‘‘if without issue then the survivors take,” mean if without issue at any time.

The decree of the surrogate should be affirmed except as to the allowances, which exceed the statutory limit, and the case should be remitted to the surrogate to readjust the allowances according to the statute.

Ho costs on this appeal.

Decree modified by giving share to survivors and not to widow; costs to all parties out of estate, and allowance vacated.  