I cannot concur with the first proposition discussed in the opinion of the presiding justice, to wit,' wherein it is held that because Frank Schneider, the son of the testator, died before the testator, although leaving a child, that such child did not take.
It seems to me that a reading of the provision of the will in controversy leads to the conclusion that the children take distributivély and not as a class. Unless there is something in the context of the will to denote it was -the intention of the testator that his beneficiaries should take as joint tenants or as a class the instrument will be construed so that they take as tenants in common or distributively. (1 R. S. 727, § 44; revised.in Real Prop. Law [Laws of 1896, chap. 547], § 56; Herzog v. Title Guarantee & Trust co., 177 N. Y. 86, 97; Matter of Kimberly, 150 id. 90, 93 ; Matter of Russell, 168 id. 169.)
In Matter of Russell (supra) the testator gave his property to his widow and children, “ to. be divided equally between them, share and share alike; that is to say, to my wife one share, to each child an equal share with my wife. Should any of my children have died-leaving lawful issue, such deceased child’s share to be given to such issue.” One of his daughters married after the death of the testator and died before the distribution of the estate according. to the terms of the will, leaving no children. Her husband claimed to take under the will as the distributee of his deceased wife. If the bequest had been to a class he would not participate in the estate for it would pass to the other beneficiaries. The court in a very elaborafé opinion, after reviewing the authorities, held that the children did not take as a class but distributivély, and that the husband of the deceased child was entitled to her share.
Matter of Kimberly (supra), which is relied upon in the foregoing opinion, sustains the position that the present bequest was not to-a class. In that case the testator gave his estate “ unto my three sisters.” namino- them. One of the sisters died before the testator. *728The court held that the devisees took as tenants in common an d that the legacy lapsed as to the dead sister.
In the above case the court say (at'p. 93): “ The appellant’s contention' is that the legatees took jointly, and if not, that the bequest was to the sisters of' the decedent ás a class, and consequently there Was no lapse in the disposition, by reason of the death of one of the legatees. We do mot think that contention can'be sustained. While at common law such a bequest would have constituted the legatees joint tenants, yet, under the statutes of this State, the rule is clearly otherwise. The ¡Revised Statutes provide that ‘ Every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy.’' (§ 44; art. 1, tit. 2, ch. 1, pt. 2, R. S.) ” (See Real Prop. Law, § 56.)
In the present case there would be a lapsing of the legacy of Frank Schneider, except for the fact that the statute prevents the. lapsing of süch a devise or legacy to children. (2 R. S. [Banks & Bros. 9th ed.] 1880, § 52; 2 R. S. 66, § 52; R. S. pt. 2, chap. 6, tit. 1, art. 3, § 52.) If Frank Schneider, the legatee, liad lived, the children would have taken as tenants in common, and his death does not change the character of the bequest. (McDonald V. McDonald, 71 App. Div. 116.)
In Matter of Truslow (140 N. Y. 599) the provisions of the will indicated a clear intention on the part of the testator to confine- the bequests to the children, using the word in its restricted sense, and the opinion of the court proceeds on the assumption that the language employed by the testator in declaring his purpose is too clear and plain to allow the ordinary rule to prevail.
The court will do its utmost, without violating the plain purpose of the testator, to prevent the disinheritance of the issue of children. (Shangle v. Hallock, 6 App. Div. 56 ; Matter of Miller, 18 id. 211; Matter of Manning, 50 id. 408.)
I concur in the conclusion reached by the presiding justice on the other two propositions' discussed by him. .
Williams and Wash, JJ., concurred.
Interlocutory judgment reversed and new trial ordered, without costs of this appeal to either party.