
    Florence L. Pimel, Respondent, v. Christopher Betjemann, as Executor, etc., of John Bahrenburg, Deceased, Appellant.
    
      Legacy to a child with knowledge by the testator of his prior death — it passes to the child’s issue.
    
    Where a will, executed with knowledge on the part of the testator that one of his children had died, directs his executors to “pay to each of my children who shall have arrived at the age of twenty-one years the sum of (§500.00) Five hundred dollars as soon after my decease as my executors conveniently can,” the issue of such deceased child is entitled to a legacy of §500 under the provisions of section 52 of the Statute of Wills (2 R. S. § 66).
    Appeal by the defendant, Christopher Betjemann, as executor, etc., of John Bahrenburg, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of November, 1903, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Andrew F. Van Thun, Jr., for the appellant.
    
      Thomas Kelby, for the respondent.
   Willard Bartlett, J.:

The. question involved in this appeal is whether Florence L. Pimel, the plaintiff, is entitled to a legacy of $'500 under the will of her "grandfather, John Bahrenburg, which will was executed on May 17, 1887. The plaintiff claims this legacy under the 1st subdivision of the will, whereby the testator left his property, after the payment of his debts, in trust to his executors, among other things to “ pay to each of my children who shall have arrived at the age of twenty-one years, the sum of ($500.00) Five hundred dollars as soon after my decease as my executors conveniently can.” At the time of the execution of the will the testator had eight children living. Another child, Anna Bahrenburg Pimel, the mother of the plaintiff, had died prior to that date and her funeral had been attended by the testator. The court at Special Term held that notwithstanding the fact of this child’s death prior to the execution of the will, and notwithstanding testator’s knowledge of her death, the plaintiff, as her sole issue, was entitled to a legacy of $500 by reason of the operation of section 52 of the Statute of Wills of this State. (2 R. S. 66.)

That statute, the operation of which is thus invoked in favor of the plaintiff, is as follows: Whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the life-time of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate.”

The case of Barnes v. Huson (60 Barb. 598), decided by the General Term of the fourth department in 1871, is relied upon as authority for the conclusion reached in this case, and fully sustains that conclusion, unless a distinction can be spelled out of the fact that the son of the testator in that case, who had died before the execution of the will, was expressly named in the bequest instead of being merely indicated as one of a class. In Massachusetts, however, where a statute similar to our own exists, it has been held that this fact makes no difference. The Massachusetts statute (Pub. Stat. Mass. chap. 127, § 23; R. L. Mass. chap. 135, § 21) provides that where a legacy is given, to a child or other relative of the testator, and such child or other relative dies before the testator leaving issue surviving the testator, such issue shall take the legacy, unless a different intention is manifested by the will. The circumstance that the gift to the relative who died before the testator was only as one of a class, instead of to him by name, has been held not to prevent the operation of this statute. (Stockbridge, Petitioner, 145 Mass. 517; Howland v. Slade, 155 id. 415.)

Having in view the intent and purpose of the legislation in question as construed in Barnes v. Huson (supra), I can see no reason why the rule of construction which has been adopted in Massachusetts should not be equally applicable to our own statute. In my opinion this judgment should be affirmed.

All concurred.

Judgment affirmed, with costs.  