It appears substantially without contradiction that the testator was possessed of property of the value of about $45,000 to $50,000; that he left no children or any other relatives or next of kin to whom his bounty should extend. The evidence indicates that he knew little concerning his relatives or next of *233kin. On the 28th day of February, 1910, he made the will which is the subject of this controversy. By such will he gave to his niece, Grace Joy, a diamond stud; to the oldest living son of his brother George a ring; to the second oldest living son of his brother George another ring and watch, and to six others, not relatives, as many specific legacies. By the will the testator distributed the residue of the estate according to the 11th paragraph which reads as follows:
“Eleventh.. All the rest, residue and reversion of my estate, both real and personal, I give, devise and bequeath as follows: ‘ to my nephew, Byron J. Tillman of Buffalo, 1ST. Y., one share; to my niece, Grace Joy of Boise, Idaho, one share; and to each of the children of my brother, George Turner, one share, to be divided equally among my said nieces and nephews, share and share alike. I direct that the share of any dying with issue surviving shall be paid to such issue and that the share of any dying without issue surviving shall be equally divided among the survivors.”
There were at the time of testator’s death the following nephews and nieces, beneficiaries of this paragraph: George W. Turner, Fred Turner, Charles C. Turner, Belle (Turner) Shumway and Helen M. (Turner) Lucas, all'children of testator’s brother George;- Grace Joy, and Byron J. Tillman, the appellant, who has been confined for some years in the Buffalo State Hospital. There was also a grandniece, Blanche Turner, the only child of Frank Turner, another son of testator’s brother George, and this Frank was dead at the time of the execution of the will, but there is no evidence that testator knew of Frank’s death. The evidence shows that he knew' very little about George’s children, having had no answer to an advertisement for them.
Upon all the facts the learned surrogate construed the 11th paragraph to mean that the residue of the estate should be divided into eight parts, one to Grace Joy, one to Byron J. Tillman, one to each of the five surviving children of George Turner, and one to Blanche, the representative and only child of the dead Frank Turner.
We think the learned surrogate was right in deciding as he did; that entirely independent of punctuation, upon which *234reliance is placed by the appellant, it seems absolutely clear that the testator intended that the residuum of his estate should be distributed as the learned surrogate decreed.
It follows, therefore, that the decree of the Surrogate’s Court should be affirmed, with costs payable by the estate.
All concurred, except Robson and Foote, JJ., who dissented in a memorandum by Robson, J.