
    SMITH v. LAWRENCE et al.
    (Supreme Court, General Term, Second Department.
    December 12, 1892.)
    Wills—Construction—Vested Remainders. Testator devised land to his daughter for life, and, after her death, “to the children which she now has or may hereafter have living at the time of her death, as tenants in common, to them, their heirs and assigns, forever. ” At the time of the execution of the will and testator’s death his daughter had three children, all of whom died before her, two of them leaving children. Held, that on testator’s death the fee in remainder vested in the daughter’s children, and on her death her grandchildren were entitled to the property.
    Motion for new trial on exceptions.
    Action by Lillian M. Smith against Charles Lawrence, Sarah J. Smith, and others for partition. An interlocutory judgment was rendered, adjudging the title to be as claimed by plaintiff. Defendant Sarah J. Smith then moved for a new trial at general term. Judgment affirmed'.
    Mr. Justice BARTLETT delivered the following opinion at special term:
    “Elias Smith died in 1839, having made a will, by the fourth article of which he •devised certain lands to his daughter, Phebe T. Lawrence, for life. The will disposed of the subsequent estate in these words: ‘I give and devise the aforesaid several tracts of land, after the decease of my daughter, Phebe T. Lawrence, to the children which she now has or may hereafter have living at the time of her •death, as tenants in common, to them, their heirs and assigns, forever.’ At the time of the execution of the will and of the death of the testator, Phebe T. Lawrence had three children living. They all died before her, two of them leaving ■descendants. She died on June 30, 1889. The question presented by this application is whether the descendants of her children take anything under the provisión which has been quoted from the will of Elias Smith. I think they do, both upon a grammatical construction of the language employed by the tes'tator, and upon the authority of the decision of the court of appeals in Re Estate of Brown, 93 N. Y. 295. According to a literal interpretation of the words used, the testator seems to have contemplated a gift over, in which two classes of his daughter’s children should participate: First, those already in being at the time he made his will; and, secondly, those who should be born subsequently, and should survive their mother. The first class were to take in any event; that is to say, the remainder vested in them as soon as the life estate vested in the mother. The •second class could not take unless they were living at the time the life estate terminated, by the mother’s death. The will clearly separates by the disjunctive ‘ or ’ the children which she has from those which she .may hereafter have, and the phrase ‘ living at the. time of her death ’ is apparently designed to apply only to the latter class, thus having reference not to children in existence when the will was executed, but to such children, if any, as should come into existence afterwards. In further confirmation of-the correctness of this view, it should be noted that it was wholly unnecessary for the testator to speak of the children ■which his daughter then had (at the time of the making of the will) if his purpose had been merely to make a devise o,ver to those who should be living when their mother died. It would have been enough to devise the remainder to the children of Phebe T. Lawrence, living at the time of her death. Now, under the rule laid down in Be Estate of Brown, supra, the right of the issue of the deceased children of Phebe T. Lawrence to take the remainder, limited upon the mother’s life estate, must be maintained, if the testamentary provision in question is capable of a construction which will lead to that result. There the testator bequeathed and devised the remainder over 1 unto such child or children as my said daughter shall have or leave living at her decease.’ The court of appeals, as was said in the later case of Patchen v. Patchen, 131 N. Y. 433, 435, 34 N. E. Bep. 695, solved this ambiguous expression by reference to other provisions of the will, and to the preference which the law gives to the participation of issue in a remainder. In the case at bar we have a similar ambiguity, which I think can well be solved by adopting the construction which has been suggested. Motion granted. ”
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Thomas S. Mount, for plaintiff.
    George W. Sandford, for defendant Sarah J. Smith.
    Thomas S. Strong, (A. A. Spear, of counsel,) for defendant Clara L. Smith.
    N. S. Ackerly, for defendant Anna W. Brown.
    R. H. Smith, for defendant James W. Phyfe.
   PRATT, J.

The material question in this case involves the construction of the fourth clause of the will of Elias Smith, deceased, which is as follows, to wit: “Fourth. I give and devise to.my daughter, Phebe T. Lawrence, during her natural life, the eastern part of the farm where I now live,” etc.; also three other tracts of land; also equal undivided one half of a tract of thatch land. “Igiveand devise the aforesaid several tracts of land, after the decease, of my daughter, Phebe T. Lawrence, to the children which she now has or may hereafter have living at the time of her death, as tenants in common, to them, their heirs and assigns, forever.” These are the lands in this action.' The said Elias Smith died April 20, 1839, made the will January 21, 1839, and' same was probated 25th of May, 1839, as a will'of real and personal property. At. the time of the death of testator, Phebe T. Lawrence was living, and then had three children. She died January 30, 1889, not having had any more children. She survived all of these three children, but she left grandchildren. ■ The question is whether on the death of Elias Smith the fee of the part of the estate which was devised to Phebe for life vested in her children then living, and therefore now belongs, to the grandchildren of said Phebe and their representatives. This question was fully discussed by the learned judge at special term, and I see nothing that needs to be added to the argument contained in his opinion. Many arguments may be suggested upon either side, but it comes down to a question of intent, to be solved by reference to ambiguous expressions contained in the will. We think this case fairly falls under the role laid down in Re Estate of Brown, 93 N. Y. 295, and that calls for an affirmance of the judgment; Judgment affirmed, with costs. All concur.  