I am unable to agree with the conclusion reached in the prevailing ■ opinion. I do not believe the testator intended to make the disposition of his property there stated, nor do I believe that the language used in his will sanctions the construction put upon it. This language is: “ 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.” The son Edgar, it will be remembered, died on the 10th of December, 1894, leaving him surviving as his only issue the appellant herein. The son Clifford died without issue on the 14th of January, 1901. The question presented is what disposition did the testator make, under the clause of his will hereinbefore quoted, of so much of the corpus of his estate and the income therefrom as was given to Clifford. The plaintiff *218contends that upon the death of Clifford without issue, he, as the surviving son of the testator, became entitled not only to the income of the share given to Clifford during the life of his mother, but on her death to the principal given to him. The appellant contends that he, as the son of Edgar, is entitled to share equally with the plaintiff, not only in the income during the life of his grandmother, but, upon her death, in the principal sum.
That the appellant’s contention is correct seems to me to necessarily follow from the manifest intent of the testator, as expressed by the language used in his will. If Edgar were living, I take it no one would seriously contend but what he would take equally with the plaintiff in the share or portion given to Clifford. If this be true, then I am unable to see why the son of Edgar does not occupy precisely the same position that he would have occupied had he lived. The will, as I read it, so declares, and if we are to give effect to the words used, this must be done. These words are: “ The issue of such deceased son shall take by representation the share the parent would be entitled to if then living.” The words “ would be entitled to if then living ” look to the future and express what the testator had in mind, viz., that at the time when the recipients of his bounty would become entitled to share in it, some of those named might have died, and if so, their issue, if any, were to step into their shoes. This, it seems to me, is not only a reasonable, but the logical construction, if effect is to be given to all of the words used. What the testator desired was to treat all of his sons alike, and if any of them should die that their issue should take precisely what the son would have taken had he lived. Here, Edgar, had he lived, would have taken one-half of what was given to Clifford, and he having died prior to the death of Clifford I think that the appellant stands in Edgar’s place, and, therefore, is entitled to share equally with the plaintiff in that interest.
I am of the opinion that the judgment should be reversed and a new trial ordered.
O’Brien, J., concurred.
Judgment affirmed, with costs to the parties appearing, to be paid out of the estate.