It seems to me that the testator used language which compels the interpretation of his will as giving the remainder of his property only to such children or to such of their issue as should survive the longest liver of the two persons by whose lives the life estates were measured.
The will discloses three distinct parts. Eirst, his household effects and enumerated articles were to be divided immediately on his' death by his executors, in kind, amongst his intended wife and children. Second, the executor was to hold in trust all the remainder of his property until his wife and his youngest daughter Mary should both die, and meanwhile pay the income to his wife and children equally, if she did not remarry; and if any child should *685die leaving children, the income which the parent would take was to go to such issue. Third, on the death of the survivor of these two persons, by whose lives the life estate was measured, he gave and bequeathed his property to his children, the children of any deceased child to take the share of the deceased parent. The executor was given power to sell only on the death of the two persons by which the life estates were measured. The language used is, “ with power to sell and dispose of the same at public or private sale on the death of my daughter Mary and of my intended wife, or of the survivor of them, and in the meantime to divide the income,” etc.
The deaths which the testator speaks of manifestly refer to those after his own decease. Having divided what may be termed his personal effects, and having created a trust measured by the longest life of his wife or his daughter Mai’y, and prohibited the disposition of the property meanwhile, he comes to the final disposition of the remainder, and says': “ On the death of the survivor of my said intended wife and my said daughter Mary I give, devise and bequeath my said property real and personal to my children including the issue of my said intended marriage, share and share alike, the children of any deceased child to take the share of the deceased parent.” It can hardly be said that the words on the death refer alone to time of distribution and enjoyment, especially in view of the fact that the testator shows by his language that he had in mind the death of some of his children after his own decease and before the termination of the life estates which he had created.
Lyons v. Ostrander (167 N. Y. 135) is quite controlling upon the construction that should be put upon the present will. It is seldom that we find language in two wills so nearly alike. It must be admitted that the intention on the part of the testator to give the remainder of his estate only to such devisees and legatees as should ultimately survive the life estates is quite as strong in the present will as it was in that under consideration in that case. There a trust for life in lands was carved out, and on the death of the life tenant the remainder was given to certain named persons, share and share alike, with a provision that the issue of such as might die should take the share of the parent. While the words uyyon his death (that of the life tenant) were not held to be controlling as to *686the intention of the testator, yet great stress was laid .upon their use as showing an intention on his part that only such as might survive the life tenant should ultimately take.
It is true that this construction of the present will disinherits the testator’s daughter Mary, for in ho event could she take an absolute vested title, because if she died before the widow she had nothing but her life estate, and if she survived the widow the trust continued until her death. Her issue would take, however, had she left any.
It seems to me this is what the testator intended. The dominant idea of the will appears to be to create life estates for the longest period which the law would permit, and upon the termination of such life estates to give the remainder of his property to such of testator’s children and such issue of deceased children as should then be alive.
The construction contended for by the plaintiff is precisely what the testator desired to avoid. The plaintiff’s interest depends upon his wife having taken a vested absolute title which descended to her child and upon his death before the termination of the life estate descended to his father, this plaintiff. The mere birth of issue which died before the life estates ended did not fulfill the condition. Such issue must have survived. In my view the plaintiff’s wife took no interest which could descend to her issue failing to survive the termination of the life estates, and, therefore, this plaintiff took nothing by descent from such child.
I think the judgment was right and should be affirmed.
Clarke, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.