
    Mullarky v. Sullivan et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    February 8, 1892.)
    Wills—Construction—Rights of Devisees.
    Testator devised, a remainder to Ms six children, in six equal parts, they to take the income during their lives, the children of such as should die to take the shares of their parents, and, if any should die without leaving descendants, “then to pay over the capital of such child’s share to his or her surviving brothers and sisters. ” M., one of testator’s children, died, leaving children. Two others died without leaving descendants. Meld, that the children of If. were entitled to participate with M.’s surviving brothers and sisters in the shares of the two children of testator dying without issue.
    Appeal from special term. Kings county.
    Action by James H. Mullarky, trustee, against James Sullivan and others for the construction of the will of James Sullivan, deceased. From a judgment in favor of certain defendants, plaintiff and Mary Ann Mullarky and James E. Mullarky, defendants, appeal.
    Affirmed.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Bergen & Dykman, ( William D. Dykman, of counsel,) for appellant James H. Mullarky. William J. Gaynor, for James Sullivan, Bichard Sullivan, and Agnes McHugh, defendants, appellants. Johnson c6 Lamb, (A. E. Lamb, of counsel,) for defendant Mullarky.
   Barnard, P. J.

The testator, James Sullivan, directed a remainder of his estate to be divided in six equal parts, and the income applied to each of six children during each of their lives. Upon the death of a child leaving descendants, the descendants were to take the share set apart for their parent. If any child should die without leaving descendants, “then to pay over the capital of such child’s share to his or her surviving brothers and sisters.” One of the children of testator has died since his death, leaving children. Two have died without leaving descendants. The question presented is whether the capital set apart for the use of Frances Sullivan, one of the daughters of the deceased, for life, shall go to her surviving brothers and sisters, excluding the children of Mary Ann Mullarky, deceased, or whether her children shall participate in the distribution, the same as their mother would if living" at the death of Frances Sullivan. The intent of the testator was manifestly that the children of a deceased child should take under the words “ survi ving brothers and sisters. ” The will provides for the contingency of a child dying before the testator, and the children of a deceased child were to take the dead' parent’s share.. In the fifth, sixth, and seventh articles of the second codicil the rights of the children of a deceased child are preserved to property therein mentioned. While the testator so carefully provided for the deceased child’s right to take in other clauses of the will, it may be fairly deemed his intent to put them on an equality' with the deceased parent in considering the clause in question. If a child had died, leaving children, before the testator, he or his children would take in place of the parent. The deaths subsequently referred to are not those to happen before testator’s death, but afterwards. The estate vested, however, at his death. It is quite immaterial whether it was an estate in expectancy or one which was vested. The surviving children all take a life use in the sixth, with right to take a share of a child who should die without children. The estate would then become absolute in the survivors, including the children of a dead child. Griffin v. Shepard, 124 N. Y. 70, 26 N. E. Rep. 339; Ham v. Van Orden, 84 N. Y. 257. A construction should be followed which will not exclude the issue of a deceased child. In re Brown, 93 N. Y. 295; In re Mahan, 98 N. Y. 372. In the case of Patchen v. Patchen, 121 N. Y. 432, 24 N. E. Rep. 695, the distribution was to persons who were living at the end of the life-estate. ITo such words are contained in this will. “Surviving children” include the child of a dead child.

The judgment should therefore be affirmed, with costs. All concur.  