I dissent, for the following reasons:
First. The construction being placed on this will is against the expressly declared intention of the testator. At the very outset of his will, after directing the payment of his debts and funeral expenses, the testator states unequivocally his reason for excluding his son Ernest from the benefits of his will and concludes such statement of his reason as follows: “I make no provision for him by this Instrument.” The court is about to do for Ernest what the testator himself declared he had no intention of doing.
Second. The construction which the court places on the will is contrary to its manifest scheme. The testator placed Ernest’s wife and son Paul in the place of Ernest, and evidently intended that they should have the share which naturally and ordinarily Ernest would take. In the disposition of the residuary estate the wife and son of Ernest received the same consideration as any of Ernest’s three brothers. The reasoning of Mr. Justice Howard seems to me to overlook the fact that in this clause of the will which occasions the present difficulty, Paul is included as sharing in the portion of the estate which would go to Harold if he had lived. If Ernest be excluded from this distribution the two surviving brothers and Ernest’s son Paul will take Harold’s share or each will receive one-fourth of the entire residuary estate of the testator. This is an equilibrium established and maintained. But if now both Ernest and his son Paul are to participate in that portion of the estate which would go to Harold if he had lived, then the two other surviving brothers and Paul will each receive five-sixteenths of the residuary estate and in addition thereto one-sixteenth will go to Ernest. In other words, Ernest and his son Paul together will receive six-sixteenths of the residuary estate and the other two surviving brothers will only receive five-sixteenths each. This unbalances the equilibrium which the prevailing opinion correctly states it was the purpose of the father to establish and maintain.
Third. The language of the latter part of the 4th clause under consideration indicates that the testator did not have his son Ernest in mind when using this language. The *742language is: “If he leave no issue then 1 direct that the share in the income and in the principal which the brother so dying would have taken if living be divided among his brothers, him surviving and said- Paul Linson and the issue of any of his brothers who may have died before him.” When the testator used the words ‘ ‘ any of his brothers ” in the words last quoted it cannot be that he intended to include Ernest, because Paul was the isSue of Ernest and he had just immediately mentioned Paul and clearly he did not intend to include him again in the expression immediately following “ and the issue of any of his brothers.” But he. must have included him again in that expression if he included Ernest as one of the brothers. Assume that Ernest had died before Harold. Then paraphrasing the above language to meet such a situation it would read as follows: “I direct that the share which Harold would have taken if living be divided among his brothers him surviving and said Paul Linson, and the issue of Ernest (Paul).” This is a reductio ad absurdum, which I do not think the testator intended.
There is no difficulty in construing this will if we simply tiy to give effect to the testator’s declared purpose at the outset thereof: “I make no provision for him by this Instrument.” Having thus disposed of Ernest it is not strange that in the latter part of the will he seems not to include Ernest as being the brother of his other sons. It is the brothers for whom he is providing in his will that he has in mind. He has previously disposed of Ernest and stated his reasons for doing so. That leaves only three brothers to be provided for. It seems to me clear not only from the language used but from the manifest scheme of the will itself as well as from the proprieties and equities of the situation that Ernest has no share in the estate.
Lyon, J., concurred.
Decree modified in accordance with opinion of Howard, J., and as so modified affirmed, without costs.