
    In the Matter of the Judicial Settlement of the Account of Stephen W. Collins, as Substituted Trustee under the Last Will and Testament of Stacy B. Collins, Deceased. John Murray, Appellant; Frederick Hussey and Others, Respondents.
    First Department,
    April 23, 1909.
    Will — distribution of property to remainderman — when distribution will be decreed per stirpes.
    Where a will directs that the residue of an estate, after the deduction of certain bequests, be divided into three parts, one to be held in trust for each of testator’s daughters, of whom he had two by a first wife and one by a second, and provides that, in case either of the daughters shall die without issue, her third shall be divided among her sisters, children of testator’s first wife, or in case of the death of either leaving children, then the said third shall be divided so that “ the children or descendants of each of her said sisters shall take one share thereof,” and, as shown by other portions of his will, the testator intended to distribute his property among his grandchildren through representation and not as a class, the share of the daughter of the second wife, who died without issue, will be distributed among her sisters’ children per atirpea, not per capita.
    
    Appeal by John Murray from portions of a decree of the Surrogate’s Court of the county of ¡New York, entered in said Surrogate’s Court on the 30th day of December, 1908.
    
      Morris Hillquit, for the appellant.
    
      W. H. Wood, for the respondents.
   Houghton, J.:

Stacy B. Collins died in 1873, leaving a last will and testament by which, after the making of certain bequests and devises, lie directed that the residue of his estate should be divided into three equal parts. He had three daughters, and he directed his executors to hold one part in trust for each daughter during her life and on her death to pay the same to her issue in equal shares, on their arriving at the age of twenty-one years. If a daughter died without issue, the will made the following provision : In case it shall so happen that either of my said daughters shall depart this life without leaving lawful issue or descendants of issue her surviving, then upon her decease the said one-third shall be equally divided among her sisters, children of my first wife, or in case of the death of either leaving children or descendants of children surviving, then the said one-third shall be divided in such way that the children or descendants of each of her said sisters shall take one share thereof.” Mary and Cornelia were daughters by the first wife, and Mary died leaving one child, this appellant, and Cornelia died leaving three children, these respondents. After their death the daughter Sarah, by the second wife, died without issue, and all the trusts being terminated, the trustees petitioned for final accounting. On that accounting the surrogate decided that the fund held in trust for the daughter Sarah, who died without issue, passed to the children of the two deceased half sisters per capita, and ordered distribution to them on that basis.

The appellant Murray insists that the learned surrogate erroneously construed the will in this regard, and that the fund should be distributed par stirpes instead of par capita, and that he is. entitled to one-lialf, and that the three respondents are entitled to the other half, to be divided amongst them equally. We are of the opinion that such is the proper construction of the will, and that the learned surrogate was in error in construing it otherwise.

While it is true that the issue of both daughters are grandchildren of the testator, and thus belong to the same class of relationship, there are many indications in the will aside from the language of the clause under consideration, showing that the testator intended, in case one of his daughters should die without leaving issue, that the fund held in trust for her should be distributed to the children of the other daughters through representation of the parent, and hence par stirpes and not per capita. In an earlier provision of his will, with respect to a division of his library, engravings and paintings amongst his children, he provided that in case any child should die leaving lawful issue, such issue should take the share of the parent or parents. In directing how the share held in trust for each daughter should be distributed on her death, he provided that it should be divided equally amongst her children, and if any child should be dead leaving issue, such issue to take the share which its paren t would have taken. The idea of the testator seems to have been to make division of his property amongst his grandchildren and great grandchildren, if any, through representation of their parents, and not to them as a general class.

It is urged that the testator did not contemplate the death of both of his daughters by his first wife, because he provided that in case of death of any daughter without issue the one-third held in trust should be divided equally “ among her sisters, children of my first wife, or in case of the death of either,” to her children, and hence both having died prior to the death of the daughter Sarah by the second wife who left no issue, all the grandchildren formed a class which should take equally. The event of the death of “either” applies to the death of both the daughters by the first wife, and the will provides that the one-third held in trust “ shall be divided in such way that the children or descendants of each of her said sisters shall take one share thereof.”

While the language may not be entirely apt to the event of the death of both daughters leaving issue, still the intent of the testator is clear that his two daughters by the first marriage should take equally, and if either or both should die leaving issue, such issue should take the share which the parent would have taken.

The provisions of the will are quite diEerent from those under consideration in Bisson v. W. S. R. R. Co. (143 N. Y. 125) upon which the respondents rely.

Our conclusion is that the surrogate erred in ordering a distribution of the fund in equal proportions to the grandchildren, and that the correct interpretation of the will is that one-lialf passed to the three children of Cornelia to be divided between them equally, and that the other half passed to the one child of Mary.

That part of the decree of the surrogate appealed from, therefore, must be reversed, and the matter remitted to the Surrogate’s Court for distribution in accordance herewith, with costs to the appellant payable out of the estate.

Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.

Order reversed, with costs to appellant payable out of the estate, and case remitted to Surrogate’s Court.  