The object of the action is to obtain a construction of the will of Joshua Hendricks, who died on the 3d day of June, 1893. After providing for the payment of his debts and certain legacies, the testator devised and bequeathed all the rest, residue and remainder of his estate to his executors in trust, to sell and convert the same into cash, and to invest and keep the proceeds invested, and to receive the interest and income and pay the same over as therein provided.
The question presented by the appeal relates to the provisions with reference to the payment of this income and the ultimate disposition of the principal under this residuary clause. At the time the will was made the testator’s three sons, his wife and mother-in-law were living, and he provided for all of them. The wife survived, but the mother-in-law predeceased the testator. In that event he directed the payment of three-eighths of the principal to his sons in equal shares. Prior to that time they were to receive three-eighths of the income. He further directed that after the death of his mother-in-law two-eigliths of the income of the trust estate be paid to his three sons during the life of his widow and three-eighths of the income to the widow. During the life of his mother-in-law he had provided for the payment of five-eighths of the income to his widow. It will be observed that during the life of his mother-in-law he- had specifically provided for the payment of the entire income, five-eighths to his widow and three-eighths to his sons, and upon the death of the mother-in-law he directed the payment of three-eighths of the principal to his sons. This left only five-eighths of the principal, and subsequently, during the life of the widow, the specific disposition of the income was three-eighths to her and two-eighths to his sons. It is evident that by these provisions he intended to dispose of the remaining income which was upon five-eighths of the original trust fund, and we do not understand that *216this is questioned. He then provided that upon the death of his wife the remaining five-eighths of the principal should be paid to his three sons, share and share alike. These provisions were contained in the 4th clause of the will. Then follows the 5th clause, which provides as follows:
“ In case of the decease of either of my said three sons before the decease of their mother, leaving lawful issue, the issue of such deceased son shall take by representation the share the parent would be entitled to if then living, and in case of default of such issue, then my said executors shall pay over to my surviving sons, equally, the portion of said trust property herein bequeathed to the son so dying without issue.”
All of the sons survived the testator, but subsequently one of the sons died without" issue and another died leaving issue, the appellant, who is an infant. The trial court held that the appellant takes only one-third of the income of two-eighths of the original trust estate, and will take, at the death of the widow, only one-third of the principal, and that the testator’s sole surviving son takes the remaining two-thirds of the income, and, after the death of the widow, who is still living, will take two-thirds of the remaining principal.
The appellant contends that he takes not only the third which his father would have taken if living, but also one-half of the third which his deceased uncle would take if living. We are of opinion that the trial court properly construed the will. It was manifestly the intention of the testator that the issue of any son who should die before the widow should take during her lifetime the third of the two-eighths of the income and at her death the third of the remaining principal previously and primarily devised to his parent; and that any son, surviving a son dying without issue, should take not only the interest previously and primarily devised to himself, but also the interest, including both principal and income, previously and primarily devised to such deceased brother. This construction gives full effect, we think, to all the language of the 5th clause of the will. The appellant, being the issue of a deceased son, takes the share that his parent would have taken if living; that is to say, the equal third share of the two-eighths of the income, and in the event of his surviving his grandmother, the testator’s widow, one-tliird of *217the remaining five-eighths of the principal. It will be observed that the testator makes no provision for the disposition of the share of a deceased son dying without issue until after he has provided for the issue of deceased sons. The disposition then made of the interest of a son dying without issue is that it shall go “ to my surviving sons equally.” Were it not for this specific provision as to the interest of a son dying without issue, the appellant’s father, even if living, would not take any interest therein by virtue of the will. In that event there would be intestacy as to such interest. The construction contended for by the appellant requires us to hold that these words “ surviving sons ” means “ surviving sons and the issue of any deceased son.” This, we think, may not be done. This devise is only to surviving sons. Actual survival is essential to taking thereunder. The appellant’s father cannot by any construction be held to be a “ surviving ” son. It follows, therefore, that the judgment should be affirmed, with costs to the parties appearing to be paid out of the estate.
Van Brunt, P. J., and Patterson, J., concurred; O’Brien and McLaughlin, JJ., dissented.