The only debatable question raised by the appeal is as to the proper construction to be given to the 2d paragraph of the will of Lina Sexauer, deceased. That, clause reads as follows: “ Second. My eldest daughter, Lina Lehmann, having received her share of the estate coming to her from my first husband, and inasmuch as what I have to dispose of are my own earnings, and I wish to provide to the best of my ability for my two youngest children, Emma Sexauer and Elsa Sexauer, I do hereby give, devise and bequeath unto my said two youngest daughters, Emma Sexauer and Elsa Sexauer equally, share and share alike, all property of whatsoever name, kind and nature of which I may die seized and possessed, and should either of them die without -leaving issue then the share of such deceased shall go to the survivor of my said two above named children.” The testatrix died in August,. 1896, being survived by her daughters Emma and Elsa Sexauer, both then, infants and unmarried. Elsa Sexauer, one of the said infants, died May 3, 1900, intestate, unmarried, and still an infant. The question is whether upon her death the share of her mother’s estate, bequeathed to her by the clause above quoted, went to her surviving sister Emma under the mother’s will, or went to the next of kin of said Elsa.
The clause under consideration does not differ in any material, or essential particular from that which was construed by the Court of Appeals in Matter of Cramer (170 N. Y. 271) and which read as follows: “After the payment of all my just debts and funeral expenses, I give and bequeath to my two great-grandchildren, Gracie and Myrtie Cramer (daughters of Leonard Cramer, deceased) all my personal property, including my household furniture, equally share and share alike. But in case of the death of either of said *36great-grandchildren Gracie or Myrtie, without heir or heirs, I direct that such share of personal property shall go to the survivor of them.” The Court of Appeals construed the words "heir or heirs ” as meaning "issue,” which is the word used in', the present case, and held that upon the death of Gracie Cramer, after the death of the testatrix, the' survivor Myrtie took the entire estate, which upon the death of the testatrix had- vested in both Gracie and Myrtie, contingently, subject to being divested' as to either by her death subsequent to that of the testatrix.
The cases are so entirely on all fours that there is no room- for distinction, and no course left open except to follow the precedent thus established, nor would it serve any useful purpose to critically discuss the authorities which preceded the Oramer case, which, as the appellant insists, would sustain a different rule. It is sufficient that the rule in that case has been established by the Court of Appeals, and has not been qualified or departed from.
The decree should be affirmed, with costs to the respondent.
Clarke, J., concurred.
Decree reversed and proceeding remitted to surrogate, with costs to appellant payable out of the estate.