Coveny v. McLaughlin

C. Allen, J. The testator devised his dwelling-house to his wife for her life, and added, “ but on her decease I give' and devise the same to my surviving children, to be divided equally between them.” Five children survived the testator, but only two survived the wife; and the question is whether the word “ surviving ” relates to the time of the testator’s death or to that [578] of his wife’s death. According to the natural use of language, it has reference to the latter event. It is placed in close connection with her decease. Ho reference is made to the time of his own death in any part of the will. The word “ surviving ” would be unnecessary and meaningless if he meant to give the remainder of the estate to all of his children. The children surviving on her decease must be taken to be the devisees intended. See Denny v. Kettell, 135 Mass. 138, and cases there cited. Petition dismissed.