In Re the Judicial Settlement of the Estate of Moore

Haight, J. The chief question brought up for review involves the construction of a will. *608 William Moore, a widower, and resident of Clinton county, died on the 4th day of Boveniber, 1885,, leaving him surviving Bichard B. Moore and Alonzo S. Moore, both of whom were unmarried, his only children and heirs at law. Bichard B. Moore died on the Pith day of August, 1889, unmarried and leaving no descendants. Alonzo S. Moore, the other son, married after the death of his father, and died on the 13tli day of September, 18.94, leaving him surviving a widow and two children, William L. Moore and Pliebe B. Moore. William Moore left a last will and testament, which was admitted to probate on the 20th day of Bovember, 1885, in which by the seventh clause thereof he gave to his two sons, Bichard B. Moore and Alonzo S. Moore, the use and occupancy, during their lives, of all of his real and personal estate, to be equally divided between them after the payment of certain specified bequests; and in case of the death of one of the sons, he gave to the survivor, during life, the use and occupancy of the whole of his real and personal property. He then provided as follows: “ After the death of my two sons and their heirs, if they have any, I give my real and personal estate to my sister Susan Bullís, wife of Lewis Bullís; my sister Maria Boberts, wife of John Boberts; to my sister Phebe Oliver, wife of Henry Oliver, and to my brother, Amos Moore, of Plattsburg, their heirs, intending the children of my sisters and my brother to have the said real and personal property. If either of my sisters or brother should die, I give the same to their children, share and share alike.” It will be observed that he does not in direct terms give any estate to the children of his son Alonzo. At the time of his decease, Alonzo had not married. The two children that were subsequently born to him were consequently not in being at the time of the testator’s death. He, however, gives his estate to his brother and sisters only after the death of his two sons and their heirs, if they have any, clearly indicating an intention that his brother and sisters should not take under the will until the death of the heirs of the sons. Had the sons died without children, the brother and sisters of the testator would *609 have been their heirs. It consequently is apparent that the heirs of the sons here referred to were intended to be the heirs of their body, their lineal descendants, including the descendants of the children. If it ivas not the intention of the testator that his brother and sisters should take until after the death of the heirs of the sons, it would seem to follow that he intended the estate to vest in such heirs, otherwise it would remain suspended during such period. They must, therefore, be deemed to take an estate by implication. It is contended, however, that the estate created for the children is a life estate only, and that the appellants, upon the death of the testator, became vested with the estate in remainder; that, under the statute, the testator could only limit the vesting of the remainder in possession during the lives of two persons in being, and that, on the death of the two sons, the third life estate attempted to be created in their children was unlawful and void, and that the estate of the remaindermen was accelerated and took effect in possession upon the death of the longest liver of the sons. There is, however, an obstacle in the way which prevents our approving of this contention. The statute nrovides that “ where a remainder shall be limited to take effect on the death of any person without heirs or heirs of his body, or without issue, the word ‘ heirs ’ or ‘ issue ’ shall be construed to mean heirs or issue living at the death of the person named as ancestor.” (1 R. S. 724, § 22.) The remainder provided for in the will to the brother and sisters of the testator, as Ave have seen, Avas only to take effect after the death of his two sons and their heirs, if they have any; in other words, it was to take effect after the death of the two sons without heirs or issue, or if they have heirs or issue, it should take effect only in case such heirs or issue were not living at the death of the tivo sons. This appears to us to have been the intention of the testator. It gives force to each provision of the will. He intended to create a remainder in his brother and Sisters after the death of his two sons in case they left no. heirs, or in case their heirs had died during the life of the sons; but in case the sons left heirs of their body them sur *610 viving, then such heirs took the entire estate, the realty in fee and the personalty absolutely. The judgment of the General Term should he affirmed, with costs payable out of the estate. All concur. Judgment affirmed.