In re the Estate of Case

Headnote

Matter of Case, 184 App. Div. 923 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 1, 1918, which affirmed a decree of the Oswego County Surrogate’s Court construing the will of George M. Case, deceased. Testator by his will bequeathed his residuary estate to his executors in trust to pay the income to his daughter during her life and further provided: “ In case of her death without living descendants, then and in such case, I give, devise and bequeath' the same to the descendants of my deceased brothers and sisters, share and share alike, per stirpes and not per capita, the same to be theirs absolutely.” The daughter died without issue. The controversy is as to

the distribution of the interest given to the descendants of one of testator's deceased sisters who had four children, all of whom survived testator. Two of such children died before the death of the life tenant. One was survived by his widow, the respondent, to whom he bequeathed all of his residuary estate and by his son, the appellant. The question was whether the widow or son was entitled to share upon the death of the life tenant. The surrogate held that the estate vested in the descendants of the deceased brothers and sisters living at the time of the death of the testator.