
    Matter of the Probate of the Last Will and Testament of John Dillon, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      October, 1908.)
    Wills—Interpretation and construction—Terms defining the nature AND QUALITY OF ESTATES OR INTERESTS-FUTURE INTERESTS AND VESTING POSSESSION AND ENJOYMENT-GIFT TO TAKE EFFECT ON DEFEASANCE OF PRECEDING ESTATE.
    Where a will, after the gift of certain real and personal property to testator’s wife for life, with remainder to his daughter, provided, in case of his daughter’s death before the death of himself or wife, that said property should go to his six grandchildren, absolutely, where the mother dies first and the daughter survives her mother and father the daughter takes the entire personal estate.
    The daughter, in case of the death of the wife before the testator, takes either as substitutionary legatee or as a remainderman whose interest ripens into possession upon the failure of the particular interest; and under either alternative there is no intestacy.
    See 63 Misc. 153.
    Proceeding upon the probate of a will.
    Charles G. Bond, for proponent; William P. Pickett, special guardian.
   Ketcham, S.

The disposing portions of the will requiring construction are as follows:

“ First, after my lawful debts are paid, I give to my wife, Mary Dillon, House, lots 200 X200 Barn horse Wagons, Harness and farming implements Situate Cor. Old Ocean Ave. & Locust st. South Greenfield, Borough of Brooklyn, N. Y.
And if after the death of my wife the property above 'mentioned remains, it will be- left to my daughter Ann M. Shepherd, of same place.
If the daughter should die before myself or my wife the above property will be left to my grandchildren, Rebecca, Catharine, Anna, Elizabeth, John & Sarah Dillon, to dispose of at their pleasure.”

Where there is a devise to A. for life, with remainder to B., B. takes the fee if A. dies in the lifetime of the testator. Sauter v. Muller, 4 Dem. 389, and cases cited.

Where there is a devise to A., whether in fee or otherwise, and a further devise to B. in the event that A. shall die in the lifetime of the testator, B. is a substitutionary devisee.

Hence, the meaning of the will under consideration must be that, if the wife shall die before the testator, the daughter shall take either as substitutionary legatee or as a remainderman "whose interest ripens into possession upon the failure of the particular interest. Under either alternative, there is no intestacy.

The grandchildren take nothing, for the only event upon which the gift could ever "reach them can never come to pass. Whether the language of the last paragraph quoted contemplates Ann’s death before both the testator and his wife, or her death before one or the other of them, need not be regarded, for both are dead before her.

The will should be so interpreted that the daughter, Ann, shall receive the entire personal estate, in absolute ownership, sand this finding should be embodied in the decree of probate.

Probate decreed.  