In re Dillon's Will — 113 N.Y.S. 929

Majority

p. 929

(60 Misc. Rep. 636.)

In re DILLON’S WILL.

(Surrogate’s Court, Kings County.

October, 1908.)

Headnote

Wills (§ 540^[1] )—Construction.

Testator by his will gave his wife certain real estate and personal property, and provided that on the death of his wife, if “the property above mentioned remains, it should go to his daughter; that, if the daughter died before testator or his wife, the property should go to his grandchildren.” Held, that where the mother died before testator, and the daughter survived her mother and father, she took the entire personal estate.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1162-1164; Dec. Dig. § 540.*]

In the matter of the probate of the will of John Dillon.

Probate decreed.

Charles G. Bond, for proponent.

William P. Pickett, special guardian.

The disposing portions of the will requiring construction are as follows:

“First, after my lawful debts are paid, I give to my wife, Biary Dillon, House, lots 200X200 Barn horse Wagons, Harness and farming implements

p. 930

Situate Cor. Old Ocean Ave. & Locust st. South Greenfield, Borough of Brooklyn, N. Y.

“And if after the death of my wife the property above mentioned remains, it will be left to my daughter Ann M. Shepperd, of same place.

“If the daughter should die before myself or my wife the above property will be left to my grandchildren, Rebecca, Catharine, Anna, Elizabeth, John & Sarah Dillon, to dispose of at their pleasure.”

Where there is a devise to A. for life, with remainder to B., B. takes the fee if A. dies in the lifetime of the testator. Sauter v. Muller, 4 Dem. 389 , and cases cited. Where there is a devise to A., whether in fee or otherwise, and a further devise to B. in the event that A. shall die in the lifetime of the testator, B. is a substitutionarydevisee. Hence the meaning of the will under consideration must be that, if the wife shall die before the testator, the daughter shall take either as substitutionary legatee or as a remainderman whose interest ripens into possession upon the failure of the particular interest. Under either alternative there is no intestacy.

The grandchildren take nothing, for the only event upon which the gift could ever reach them can never come to pass. Whether the language of the last paragraph quoted contemplates Ann’s death before both the testator and his wife, or her death before one or the other Of them, need not be regarded, for both are dead' before her. The will should be so interpreted that the daughter, Ann, shall receive the entire personal estate in absolute ownership, and this finding should be embodied in the decree of probate.

Probate decreed.