In re the Accounting of Phipard

Headnote

Matter of Phipard, 182 App. Div. 357 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 21, 1918, which reversed so much of a decree of the New York County Surrogate’s Court as held that the appellant herein was entitled to a distributive share of the estate of Henry Rutherford, deceased. By his will the testator provided: “ All the rest, residue and remainder of my estate of whatsoever kind or nature, I give, devise and bequeath to the children of my father’s (James Rutherford) deceased brothers and sister, share and share alike, but if any child or children of my father’s deceased brothers or sister shall have died before me, leaving lawful children, then the said children of any

deceased child or children shall have and receive the share which the deceased parent would have received had he or she survived me, but should it so happen that there should not survive me any child of my father’s deceased brothers or sister, then I direct that my said residuary estate shall be divided equally between the lawful children of the deceased children of my father’s brothers and sister, living at the time of my decease, share and share alike.” The testator upon his decease left him surviving three paternal first cousins and children of deceased paternal first cousins and grandchildren of deceased paternal first cousins. The question at issue was whether grandchildren were entitled to the share their deceased parent would have taken.