In re the Accounting of Naylor

Headnote

Will — devise of remainders to surviving lawful issue or descendants of nephews and nieces who may have died — child and descendant of deceased child by first wife of deceased nephew share equally with son by second wife of said nephew.

Matter of Naylor, 194 App. Div. 601 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the' first judicial department, entered January 27, 1921, which modified and affirmed as modified a decree of the New York County Surrogate’s Court construing the will of Joseph Naylor, deceased. Testator by his will gave life estates in one-seventh part of his estate to each of seven nephews and nieces and provided that if any should die without issue then the remainder of his or her share should be divided “ equally amongst and to the then survivors of my said seven nephews and nieces and the then surviving lawful issue or descendants of either or any of my said nephews and nieces who may have previously died leaving such issue or descendants, equally per stirpes and not per capita.” A niece died without issue. A nephew had twice married and had children by both wives. The question presented was, did that one-sixth of one-seventh of the residuary estate, of which the deceased niece was the life beneficiary and which would have gone to said nephew of the testator, had he survived, now belong to the two children and representative of the third child' of the nephew, in equal shares, or to the son of the nephew by his second marriage alone. The Appellate Division held that all three inherited equal shares.