#### In the Matter of the Settlement of the Executors of JOSEPH S. BARKER, Deceased. EMELINE P. HAYWOOD, Appellant, *v.*CHARLES S. BARKER and Others, Respondents.

*Will*— devise *to Hie children of legatees dying before the death of the testator*— when *it includes the children who were dead at the time of the execution of the will.*

Appeal from a decree of the Surrogate of Westchester county, made upon the settlement of the estate of Joseph S. Barker, deceased.

The testator by his last will directed the residuum of hi estate to be distributed among certain persons, or classes of persons, each to take a share. Two shares went to one person named and three other shares went to three other persons named in the will. Then follows this portion of the will giving shares to classes: *“*One share to each of the children, living at the time of my death, of my deceased brother Isaac Barker; one share to each of the children, *295living at the time of my death, of my deceased brother Nathaniel Barker; one share to each of the children, living at the time of my death, of my deceased brother Thomas Barker; one share to each of the children, living at the time of my death, of my deceased brother Elijah C. Barker; one share to each of the children, living at the time of my death, of my deceased sister Jane Hart; one share to each of the children, living at the time of my death, of my deceased sister Mary Crawford; but in case any one or more of the children of either or any of my deceased brothers and sisters mentioned in this clause of my will shall die or have died before me leaving lawful issue, then and in that case such issue of my deceased nephew or niece shall receive the share which he or her ancestors would have received under this clause of my will had he or she been living at the time of my death, excepting in the case of the issue of Lemuel Crawford, deceased, to whom this clause shall not apply, the children of the said Lemuel Crawford, deceased, having been left a legacy in a former clause of this will.”

Some of the nephews and nieces had died before the date of the will, and some had died intermediate the date of the will and the death of testator. The question is whether, under this clause, the children of the nephews and nieces, who died before the testator’s will was made, take the share to which the parent would have been entitled if he had lived until the will took effect.

The Court at General Term said : “ The case has been very elaborately argued and the argument discloses very considerable diversity upon the question as to what words make a permanent legacy and what a substituted one. All the cases cited differ more or less from the present one. The leading case of *Ghristopherson*v. *JVaylor*(1 Mer., 320),- differs essentially. The legacies intended for the child in case of death “ shall be for his, her or their issue.” These were held to be words of substitution only. It is doubtful whether, under the rule so constantly asserted by the Court of Appeals, that the intention of the testator shall prevail, the case would be followed with the same language. The testator certainly intended, in case of the death of one legatee, that another should take from him. The will in the present ease goes further. It provides for a case where a person shall die *‘*or have died before me.’ There is no reason why the will which seems to have been drawn *296to meet deaths already happened, as well as those which shall ’ happen is not to have full force in one case as well as in the other. The words of the will plainly refer to all the brothers and sisters mentioned in the seventh clause (the one in question) and the deaths are those which have or are possible to happen. The testator, so far as disclosed, had the same love and affection to the descendants of all his nephews and nieces. It would both be just and would meet the intent of the will to include those in the clause who were dead when the will was made. *(Teed*v. Morton, 60 N. Y., 502.)

“ The judgment should, therefore, be affirmed with costs.”

*J. K.*Haywood, for the appellant.

*James F. Randolph,*for Isadora C. Tuttle, respondent.

*Guilim & Meyers,*for Mary E. Williams, respondent.

*Walter Edwards,*for Geo. E. Edwards and others, respondents.

*E. B. & C. P. Cowles,*for Margaret Thiess and others, respondents.

*Phillips J. O'Reilly,*for John C. Barker, respondent.

*John S. Wood,*for Charles S. Barker, respondent.

Opinion by

Barnard, P. J.;

Pratt, J., concurred.

Part of surrogate’s decree appealed from affirmed, with costs.