Opinion
December 30, 1905.
Henry J. McCormick, for the appellant.
Warren Leslie, for the respondent assignee of James G. Smith 2d.
Ferdinand E.M. Bullowa, for the respondent administratrix.
The testator by the 1st clause of his will bequeathed to his wife the interest on a certain mortgage for $25,000, during her life in lieu of dower, and provided that "at her death the said principal sum of twenty-five thousand dollars to be equally divided between my sons or their heirs, share and share alike." At the time of making the will the testator had four sons living, only two of whom survived him. The sons who predeceased the testator left issue. The question is whether the bequest of this mortgage was to the sons as a class so that the two who survived their father took or whether it was the intention of the testator to devise it to the four sons living at the time he made the will so that the issue of the deceased sons would take their parents' share. It is important to note that concerning the heirs of the sons he uses the disjunctive which implies a substitution of the heirs for a deceased son. He directs that upon the death of his wife the principal of the mortgage be divided equally between "my sons or their heirs." He anticipated that one or more of his sons might die prior to the division, at least, and the question is did he not anticipate that this might happen before his own death and intend that in either event the heirs of the deceased son should take the share intended for the parent? Light is shed on the true construction of the will by the 2d clause in which he names his four sons and devises and bequeaths to them "or their heirs" the rest, residue and remainder of his property in equal shares. It is not questioned but that the issue of the deceased sons take their parents' share in the remainder here bequeathed and such is and would be, even if the word "heirs" was not used, the construction required by section 52 of the Statute of Wills (2 R.S. 66) which provides that "whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the life-time of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate." The testator is presumed to have known the law. Presumably, therefore, he knew that if any of his own children should die during his own lifetime leaving issue such issue would share in the remainder. Now did he intend a different rule with respect to the principal of the mortgage? There is nothing to indicate that he did. The failure to name his children in the 1st clause when he intended to name them in the 2d and knew that they were named in the 2d, is not evidence of such intention. On the contrary, we think it quite clear that by the designation "sons" in the 1st clause of the will he did not mean such sons as would survive him but he meant his sons then living who were named in the 2d clause of the will.
It follows, therefore, that the learned surrogate properly construed the will, and the decree should be affirmed, with separate bills of costs to the respondents appearing separately, payable by the appellant.
O'BRIEN, P.J., INGRAHAM and CLARKE, JJ., concurred.
Decree affirmed, with separate bills of costs to respondents appearing separately, payable by the appellant.