The question in the present case depends upon the construction of the following clause in the will of Peter B. Guernsey: The above devise to my children being to them, their heirs and assigns, and if either die without issue, then to the survivor or survivors in equal shares. That question is whether the issue of one of the deceased children, has, by virtue of the foregoing clause of the will, any claim to the share given to another child dying without issue, subsequent to the death of their ancestor, or whether the surviving child or children take the whole of such share to the exclusion of the issue. The devise to the children was made without words of inheritance by a previous clause of the will. There is no other part of the will that affords any light as to the intention of the testator in the disposition of the property. It is claimed by the respondent's counsel that the clause relating to William B. Guernsey, a grandson of the testator, the only child of his deceased son, does give such light. That clause assigns as a reason for not giving any thing by the will to the grandson, that he had already received from the testator an amount equal to that given to his own children by the will. From this the counsel for the respondent argues that the design of the testator was to exclude this grandchild from any participation in the property given by the testator in the will; and that to effect this design the clause in question must be construed as including this issue of a deceased child among the class entitled to succeed by survivorship. If the counsel is right in the premises his conclusion is correct. But why attribute any such design to the testator. The will shows that the testator made the grandchild, by what had before been given him, equal in the division of his property to one of his own children. The issue of one of his children provided for by the will inheriting the share of their ancestor if entitled to anything by survivorship would receive more than William B. Guernsey, and thus equality between all the children and their descendants would be destroyed. The more probable inference would be that if the testator had in his mind to include the issue of a deceased child in the chance of survivorship *Page 275 he would also have included therein this grandchild and thus have preserved entire equality among all his descendants. But I do not think the clause in relation to the grandchild entitled to any weight in determining the present question. There is no ground for supposing that the testator had in his mind, while considering that clause, anything more than to show his reason for not giving anything to this grandchild by his will.
Numerous cases have been cited by the counsel for the respondent; I have examined many of them, but do not find therefrom any aid in determining the present question. It must be determined by the intention of the testator derived from the language used in the clause in question. It appears therefrom that the testator did not give the share of a child dying, leaving issue, to such issue. This shows that he had no design to provide for the issue. In that event he left the share at the absolute disposal of the child. The word issue is used in the clause for the purpose of showing when the child should not enjoy this right and the right of survivorship should attach. The natural import of the language used confines the right of survivorship to the children. This, in the absence of any intention shown by the testator to provide for the issue, but rather the contrary, should be followed. There is no question but that any portion required as survivor under the will is owned by the party in fee. The judgment should be made final by declaring that the issue of Polly Thompson have no right of survivorship in the shares of the remaining children, and that the last survivor of the children will become owner in fee to the share given by the will, as the event in which it is devised over can then never happen. This results from the devise to the children with a contingent devise over upon the happening of some future event. The estate becomes absolute when the event becomes impossible. *Page 276