Widrig v. Finster

HardiN, J.: When Jacob Oyer died in 1872, without ever haying had any children, the share of the farm which he took under his father’s will went by the terms of the will to the survivor Theobald (David). The words, “ that then and in such case his share shall be equally divided amongst the survivor or survivors, or his or their heirs,” limit the estate to the “survivor” of “said sons” named by the testator. (Miller v. Emans, 19 N. Y., 384; Guernsey v. Guernsey, 36 id., 267; Striker v. Mott, 28 id., 90; Smith v. Scholtz, 68 id., 58; Redfield on Wills, 756; Jackson v. Blanshan, 3 Johns., 292; Lovett v. Buloid, 3 Barb. Chy., 137.) The will was prepared in 1815, and the words, “ or his or their heirs,” were inserted as words of inheritance. The intention of the testator, obviously, was to devise his real estate to his three sons, for each to enjoy, in his lifetime, one-third thereof, and to provide that the one-third go to the issue of the body of the parent, if any such issue survived, and in case of the death of any son without issue of his body, that his share should go to the remaining son, or sons. The death of the son in 1872, without issue, had the effect to pass the estate to his brother, the son of the testator referred to by the word survivor. The reason given by the court below for its judgment accords with our views. The judgment must be affirmed, with costs. Talcott, P. J.. and Smith, J., concurred. Judgment affirmed, with costs.