#### Matter of the Judicial Settlement of the Account of John Harsen Rhoades et al., as Trustees of Benjamin F. Wheelwright, Deceased.

(Surrogate’s Court, New York County,

September, 1898.)

Trust — Failure of remainder by death without issue — Bights of heirs and next of kin of a predeceased child — Bights under tKe deceased child.

The will of a testator directed that, upon the death of his wife, liis estate should be divided into as many parts as he had children, that his trustees should apply the income equally to the use of the children for life and, upon the death of a child, that they should pay its issue the part held in trust for the child; but that, in default of issue, the share should revert to the heirs of next of kin of the testator, whom he declared to be such persons as should be heirs or next of kin at the time of his death as if he had died intestate.

Held, that where a child died without issue, those entitled to the share were not confined to such children' of the testator as were living when the child died, but that the effect as to the heirs and representatives of a predeceased child was the same as if there had been no disposition over of the share of the child who died without issue.

That the heirs and representatives of the deceased child were entitled to share in the part of which he was the life beneficiary.

Benjamin F.' Wheelwright died October 7, 1875, leaving a . will, the provisions of which are sufficiently set forth in the opinion. He left him surviving, his widow, Elizabeth G. Wheelwright, and five children, namely, Washington S. Wheelwright, Anne G. Rhoades, Caroline M. Child, Elizabeth G. Wheelwright and Benjamin F. Wheelwright. His will was dated June 25, 1873, and was probated in this court October 21, 1875- The parties.who accounted in this proceeding were named as executors, and performed their duties as such executors, and have since been acting as trustees. Testator’s widow died June 24, 1887. Benjamin F. Wheelwright. (2d) was unmarried at time of the making of the will and at the time of the testator’s death, and died at Paris, April 21, 1897, without leaving issue, and unmarried. He left a will executed in accordance with Hew York laws and in which he left all his estate to his sister, Elizabeth G. Wheelwright, and a subsequent will executed in *640France, in which, one Elizabeth Marie Pease is named sole and universal legatee. Ho letters have been issued upon the previous will. Before Benjamin died in 1897, two other children of testator had died, namely, Washington S. Wheelwright and Mrs. Rhoades. Washington S. Wheelwright died December 4, 1887, leaving a widow, Anderena E. Wheelwright, and three children, Frances Agnes Butterfield, Florence Louise Goffe and Charles P. Wheelwright. By his will, proved in this court, he gave all his estate to his widow and appointed her sole executor. Mrs. Rhoades died in September, 1896, leaving her husband, said John Harsen Rhoades, and three children, Cornelia H. Rhoades, Bessie R. Chisholm and John Harsen Rhoades, Jr. By her will, proved in this court, she gave all her property to her husband and appointed him executor. Mr. Rhoades, as executor and individually by instrument dated October 5, 1897, conveyed and assigned to his three children all his interest in the property of which *testator*died seized, including trust estate for benefit, of Benjamin F. Wheelwright (2d). Said Anderena E. Wheelwright, as executor and individually, assigned all her interest in the Benjamin F. Wheelwright (2d) trust estate to said Mrs. Butterfield and said Mrs. Goffe, by instrument dated June 22, 1897, and said Mrs. Butterfield and Mrs. Goffe in turn, by instrument dated October 1, 1897, conveyed and assigned to their brother, Charles P. Wheelwright, an undivided one-third of the estate and interest so acquired by them. Mrs. Child, daughter of testator, is still living and has children. Miss Wheelwright, another daughter of testator, is still living and unmarried. The trust estate in which Benjamin F. Wheelwright (2d) was interested as life beneficiary consists of about $150,000 personalty, and about $450,000 realty. The question was as to how the principal of such estate should be divided. Miss Wheelwright claims that such estate should be divided between herself and Mrs. Child. All the other parties claim that Mrs. Child and„Miss Wheelwright should each take one-fourth of said estate, each of the three children of Mrs. Rhoades one-twelfth, and each of the three children of Washington F. Wheelwright one-twelfth. The second question, to be decided was whether, under the terms of will, Benjamin F. Wheelwright (2d) took any interest in capital of his share which the testator gave in event of said Benjamin dying without issue. The surrogate decided that under the peculiar language he did, and his heirs as to the realty and his legal representatives as to the personalty shared by direct succession from Benjamin F. Wheelwright (2d).

*641Joseph H. Gray, for trustees.

Owen & Sturges, for F. I. Goffe and Frances A. Butterfield.

Edward W. Sheldon, for Cornelia Harsen Rhoades et al.

John B. Pine, for Elizabeth G. Wheelwright.

Fitzgerald, S.

As incident to the judicial settlement of the accounts of the trustees in this proceeding, and to enable them to distribute to the proper parties the capital of the share of his estate which the testator gave in trust for the benefit of his son Benjamin, who has recently died without leaving issue, a determination as tb the intention of the testator in respect to the disposition to be made of such capital has become necessary. After making divers -bequests and directing the income of his estate, exclusive of a certain house devised to his wife for life, to be applied for the benefit of his wife and children in certain proportions during the life of the former, he required upon her death that his estate (in which I include, for convenience of treatment of the question under, consideration, the parcels of property which the Supreme Court adjudged should be held in trust for the beneficiaries thereof) should be divided into five parts, corresponding to the number of his children, and directed his trustees to apply the income thereof in equal shares for the use of his children during their respective lives, and upon the death of any of them to pay to the issue of the child so dying the part or share held in trust for such child. The testator further provided that in default of issue, the share of such child should revert to the testator’s heirs and next of kin, and he declared that where property is directed in certain cases to revert to his next of kin or heirs, he meant such persons as should be heirs or next of kin at the time of his death as if he had died intestate. It is claimed on the part of the surviving children of the testator that, by this reference to his heirs and next of kin, he intended to confine the right to share in the .portion of the estate held in trust for a child dying without issue to such of testator’s children as should be living at the time of the death of such child, and to preclude .the heirs and legal representatives of a pre-deceased child or children of the testator from sharing in such portion. In other words, it is insisted that the testator contemplated that only such of the persons ' answering to the description of his heirs and next of kin at the time *642of his decease as should be living at the death of a child "without leaving issue, should share in the part of the 'estate held in trust for such child. ■ I cannot concur in this view, as it attaches a meaning to the language used by the testator which, in any fair and reasonable point of view, it is not in my judgment capable of bearing. That language expresses clearly ^ and succinctly what I take to be the testator’s evident intention, and I am inclined to think that it' would involve no little effort to choose terms that w.otdd indicate such intention more aptly and plainly and with greater brevity.. That intention certainly was that in the event of the death of any of testator’s children without leaving issue, the heirs and legal representatives of a child who had previously died should, as well as testator’s living children, share in the capital of the -estate given in trust for the benefit of the child who had died without leaving issue. The effect, so far as the heirs and legal representatives of the predeceased child are concerned, is the same as if there was no disposition over of the share of the child who had died without issue. In such case the succession to the share by such heirs and representatives would be precisely as I have indicated Brown v. Richter, 25 App. Div. 239; Van Nostrand v. Marvin, 16 id. 33; Clark v. Cammann, 14 id. 133. And it was probably as a precautionary measure designed to guard against the possibility of a doubt upon the subject, as well as to avoid the contention hereinafter referred to, that the language in question was used. It is also contended that the heirs and legal representatives of the deceased son are not entitled to any part of the share of which he was the life beneficiary. This contention, after a careful consideration of the matter, I have concluded to be untenable, and I hold that they are entitled to a-portion of such share, and this .solely by reason of their being the heirs and representatives of such deceased son. Holloway v. Holloway, 5 Ves. 399 ; Pearce v. Vincent, Cromp. & M. 598; Seifferth v. Badham, 9 Beav. 370; Nicholson v. Wilson, 14 Sim., 549; Wharton v. Barker, 4 Kay & J. 488; Bullock v. Downes, 9 H. L. Cas. 1; Simonson v. Waller, 9 App. Div. 515. Van Nostrand v. Marvin, Clark v. Cammann and Simonson v. Waller, above cited, treat Savage v. Burnham, 17 N. Y. 561, and Howland v. Clendenin, 134 id. 305, so far as they may seem to pertain to this subject, as not being authoritative decisions upon it. A decree should be entered in accordance with these views.

Decreed accordingly.