In Re the Accounting of Roe

*119 Cardozo, J. The proceeding is one for the settlement of executors’ accounts and the construction of a will. The testator, Thomas Lawrence, died in April, 1919, leaving a will made in August, 1911. By this will he gives $500 to his sister Elizabeth, and Other legacies of small amounts which there is no occasion to enumerate. He creates a trust fund of $3,000 for the use of his sister Jane during her life. On her death the principal is to be divided among “ my sisters, nephews and nieces, and the issue of my nephews and nieces dying prior to the death of my sister, Jane Lawrence, share and share alike.” He creates a trust fund of $10,000 for the use of his niece, May J. Lawrence. On her death the principal is to be divided among “ my sisters, nephews and nieces and the issue of my nephews and nieces dying prior to the death of my niece May J. Lawrence, share and share alike.” He gives his residuary estate upon separate trusts for the benefit during their respective lives of his nephew, George B. Lawrence, his niece May J. Lawrence, and his niece Clarabelle Burling, and on the death of any of them “ the share or portion of which he or she had the income is to be divided among my sisters, nephews and nieces and the issue of my nephews and nieces dying prior to said George B. Lawrence, May J. Lawrence and Clarabelle Burling, share and share alike.” Between the making of the will and the death of the testator, May J. Lawrence died without issue. Her death makes it necessary to distribute both the $10,000 trust fund and also the third of the residuary estate that was to be held for her benefit during life. The testator was survived by his sister, Jane; by a nephew and a niece, George B. Lawrence and Clarabelle Burling, children of his brother George; by two nieces, children of his sister Elizabeth; and by five grandnephews and grandnieces, children of a deceased niece, Phoebe Demarest. The *120 question is whether he meant that grandnephews and grandnieces, children of deceased nephews and nieces, should share per capita with his sister and with nephews and nieces who survived, or on the other hand should share per stirpes as the representatives of their parents. The courts below have upheld a division per capita. Undoubtedly that division is proper in so far as the class is made up of sisters, nephews and nieces. The will puts these on an equality. Issue of deceased nephews and nieces stand, however, on a different plane. We find more than a “ faint glimpse ” of an intention (Matter of Durant, 231 N. Y. 41, 50) that for them the division is to be per stirpes. The important gifts in this will are three: the trust for the sister, Jane: the trust for the niece, May; and the trust affecting the residue of the estate. In respect of all three the significant thing is that the issue of nephews and nieces are not to take unless their parents have died before the termination of the life estate upon which the remainder is dependent. In that event, and in that only, they are to be included upon distribution in the ascertainment of the class. The inference seems inevitable that they were thought of as the parents’ representatives, succeeding either by representation or by substitution to the enjoyment of the parents’ share. Such a scheme of distribution is inconsistent with a gift per capita. If the gift is to the issue with directions to divide per capita, those in different degrees of consanguinity, nephews and grandnephews, nieces and grandnieces take concurrently as well as equally (Matter of Farmers’ Loan & Trust Co., 213 N. Y. 168, 173). The issue, in that view, are not excluded though the parents are still in being (Soper v. Brown, 136 N. Y. 244, 250; Matter of Farmers’ Loan & Trust Co., supra). If they take only by representation, the division is presumably per stirpes (Cf. Ferrer v. Pyne, 81 N. Y. 281; Vincent v. Newhouse, 83 N. Y. 505; Matter of Farmers’ Loan & Trust Co., supra). The testator's *121 meaning is brought out into clear relief if we drop the participial clause, and put in its stead a clause framed as a condition. The gift at the end of the life estate will then be to “ my sisters, nephews and nieces and, if any nephews or nieces die before the death of my niece May J. Lawrence, to their issue, share and share alike.” This is the exact equivalent of the words used by the testator, and yet it puts beyond the realm of doubt the representative quality of the gift to those who thus succeed. In such circumstances, we are not controlled by the direction for division “ share and share alike.” The direction is satisfied by a division equal between stocks (Matter of Farmers’ Loan & Trust Co., supra, at p. 174; N. Y. Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93, 109). We find no merit in the argument that as to a third of the residuary estate the testator died intestate. The gift of the remainder was not defeated by the death of the beneficiary of the fife estate before the will became effective (Matter of Fordham, 235 N. Y. 384). We are not at liberty to determine whether the decree is correct in the exclusion of Frank Rose, the child of a niece who died in 1898. He has taken no appeal (Matter of Horner, 237 N. Y. 494). The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed with costs to the appellants in all courts payable out of the estate, and the matter remitted to the Surrogate’s Court for the entry of a decree in accordance with this opinion. Hiscock, Ch. J., Crane, Andrews and Lehman, JJ., concur; Pound and McLaughlin, JJ., dissent. Ordered accordingly.