
    (94 Misc. Rep. 17)
    In re ROWE’S ESTATE.
    Surrogate’s Court, Dutchess County.
    July, 1915.)
    Wills ©=>197(3)—Construction—Designation of Legatees—Grandchildren.
    Where a testator left his residuary estate in equal shares to such of the grandchildren of two deceased uncles as should survive testator, except one grandchild of each uncle otherwise provided for in the will, and by codicil provided for the children of one of his uncle’s grandchildren, who predeceased the testator, other children of the grandchildren of either of the uncles are excluded, and the share of a grandchild who died after the testator goes to her next of kin.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. § 1082; Dec. Dig. ©=>497(3).]
    Proceeding by the executors of the will of Horatio Rowe for a construction of his will. Decree entered.
    Decree affirmed, In re Judson, 157 N. Y. Supp. 1130.
    
      A. Lee Wager, of Rhinebeck, and Charles A. Hopkins, of Poughkeepsie, for petitioning executors.
    Wm. J. & Wm. C. Roche, of Troy, for grandchildren.
    Morschauser Sr Mack, Harry Arnold, and C. W. H. Arnold, all of ' Poughkeepsie, for great-grandchildren.
   GLEASON, S.

This is a proceeding by the executors of the will of Horatio Rowe, deceased, under section 2615 of the Code of Civil Procedure, to obtain a construction of the last will and testament of Horatio Rowe, deceased, who died March 20, 1914, the will being admitted to probate June 16, 1914. The will is dated May 8, 1907. There are four codicils thereto, dated respectively January 27, 1908, March 24, 1910, May 5, 1911, and February 24, 1912. The testator did not leave any children or descendants surviving him. The personal estate amounts to about $290,000, and the real estate $30,000. Construction is sought of the ninth clause of said will which reads as follows:

“Ninth. All the rest, residue and remainder of my estate and property both real and personal of whatever name or nature of which I may die seized or possessed I give devise and bequeath as follows:
“One-half thereof I give, devise & bequeath to the grandchildren of my Uncle Garrett M. Rowe deceased who may survive me in equal portions share and share alike. And the other half thereof I give, devise and bequeath to the grandchildren of my Uncle William M. Rowe deceased who may survive me share and share alike.
“Mary Rowe Rant is not to be included in the above bequest to the grandchildren of my Uncle Garrett M. Rowe deceased, and William Oookingham is not to be included in the above bequest to the grandchildren of William M. Rowe, deceased.”

It is contended that children of grandchildren of Garrett M. Rowe, deceased, and of William M. Rowe, deceased, who predeceased the testator, are entitled to share in the residue disposed of by the, above clause. With this contention I am unable to agree. The language of the ninth clause is clear and explicit. There is nothing in any other part of the will or of the codicil which confuses or throws any doubt upon the terms of that paragraph. In plain words, the testator gave one-half of his residuary estate to a class of persons whom he described as the grandchildren of his uncle, Garrett M. Rowe, and the other half to a class of persons whom he described as grandchildren of his uncle, William M. Rowe. In both cases the persons who were to take were those who survived the death of the testator. The gift was to classes.

At the time of the making of the will and at the time of the death of the decedent there were persons in existence who answered the description of such classes. I have studied the will carefully to ascertain an intention on the part of the testator that the term "grandchildren” should include great-grandchildren, but am unable to discover any such intent, either in the will itself, or the codicils thereto. In fact, the contrary seems to be the fact.

In paragraph third of said will he provides for Mary Rowe Lant, a grandchild of Garrett M. Rowe, and expressly states that she shall have no share in his residuary estate. In paragraph seventh, he provides for William Cookingham, a grandson of his uncle William M. Rowe, deceased, and expressly provides that he is not to be included in the residuary bequest. In the third codicil, which is to me a significant indication of testator’s intention, it provides for the children of Albert R. Carpenter, who was a grandson of Garrett M. Rowe, who predeceased the testator.

T have decided and determined that by the true construction of the will of the testator such persons only as fall within the description of grandchildren of the testator’s uncles, Garrett M. Rowe and William AT. Rowe, respectively, and who survived the testator, are qualified and are entitled to take under the provisions of the ninth paragraph of said will, except as to Isapheme Mott, granddaughter of William M. Rowe, who survived the testator, her next of kin are entitled to take the share which vested in their mother upon the death of the testator.

I direct that a decree be entered in accordance with the above decision. Decreed accordingly.  