
    Matter of the Estate of Horatio Rowe, Deceased.
    
    (Surrogate’s Court, Dutchess County,
    July, 1915.)
    Wills—provisions of—who entitled to share in residuary estate — vesting.
    Where by the will of a testator who left him surviving no descendant his residuary estate was given in equal shares to such of the grandchildren of two deceased uncles, naming them, as should survive testator, one grandchild of each uncle, otherwise provided for by the will, being expressly excluded from sharing in the residuary estate, the children of any of the grandchildren of either of said uncles are not entitled to share in the residuary estate, but the next of kin of a grandchild of one of the uncles, who survived testator, are entitled to take the share which vested in their mother upon the death of testator.
    Proceeding for the construction of a will.
    A. Lee Wager and Charles A. Hopkins, for petitioning executors.
    Wm. J. & Wm. C. Roche, for Garrett M. Rowe and others, grandchildren.
    Morschauser & Mack, Harry Arnold and 0. W. H. Arnold, for Emma White and others, great grandchildren.
    
      
       Received too late for insertion in proper place. Decree affirmed unanimously by Appellate Division, Second Department, February Term, 1916.—[Repr.
    
   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 Eowe, 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:
‘1 One-half thereof I give, devise & bequeath to the grandchildren of my Uncle Garrett M. Eowe 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. Eowe deceased who may survive me share and share alike.
Mary Eowe Lant is not to be included in the above request to the grandchildren of my Uncle Garrett M. Eowe deceased, and William Cookingham is not to be included in the above bequest to the grandchildren of William M. Eowe, deceased.”

It is contended that children of grandchildren of Garrett M. Eowe, deceased, and of William M. Eowe, 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.

I 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 M. 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. Bowe, 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.  