The sole question here is whether or not the plaintiff was provided for or mentioned in the will, and that depends upon the construction of the 4th clause of the said will, which is as follows:
“ Fourth. All the rest, residue and remainder of my estate, both real and personal, of which I may be seized or possessed, or to which I may in any manner be entitled, I give, devise and bequeath to my wife Elizabeth M. Holbrook absolutely and forever, but if she should die before me and I should *290leave lawful issue then I give, devise and bequeath all my said residuary estate to my said issue per stirpes and not per capita, but if my said wife should die before me and I should not leave any lawful issue me surviving, then I give, devise and bequeath my said residuary estate in equal shares to my surviving brothers and sister, the lawful issue of any deceased brother or of my sister to take the share per stirpes to which the parent would have been entitled if living.”
In brief, that clause gives the property absolutely to the testator’s widow if she survives him, but provides that should she die before him and he should leave lawful issue him surviving (“ me surviving ”) the property should go to that issue, and, if not, then to testator’s surviving brothers and sister. It is to be noted that in the first part of that alternative provision, viz., “ but if she should die before me and I .should leave lawful issue then I give,” etc., the expression used is, “I should leave lawful issue; ” whereas in the second part of it, namely, “ but if my said wife should die before me and I should not leave any lawful issue me surviving, then I give,” etc., the words “ me surviving ” were added. Still I think that as those provisions are plainly alternative the words of survivorship in the first part have the same meaning as those in the second part, viz., “ me surviving.”
While the learned justice at Special Term wrote no opinion, it is indicated in the briefs that he so decided upon the authority of Stachelberg v. Stachelberg (124 App. Div. 232; affd., upon opinion of Mr. Justice Scott below, 192 N. Y. 576). Of course, the vital question is whether or not the plaintiff, the posthumous child, was provided for or mentioned in that clause of the will. It is well settled that she is to "be regarded as such if she comes within a class so provided for or mentioned. The contention of the appellants is that she comes within the class mentioned therein as the “ lawful issue ” of decedent. Doubtless that would be true if the expression were used in that class absolutely, that is, without qualification; but the expression is with qualification by the term “ me surviving.” In the Stachelberg Case (supra) the provision was: “ In case of the death of my said wife before me, leaving lawful issue her surviving, then upon my death the interest in my said estate which my said wife would be entitled to take if *291living shall belong to such issue in equal proportions ” (124 App. Div. 233); and it was held that the reference to the children in the provision was therein limited to the children who survived the wife and thereafter also survived him, the testator, and, therefore, excluded the plaintiff who was born of the wife after the testator’s death. The Special Term in the instant case has in effect held that the qualification “ me surviving ” has in legal effect limited the reference to the children who actually survived the testator — those who were living at the time of his death; and that, therefore, the reference excludes and thus does not embrace the class of posthumous children to which plaintiff belongs. I am inclined to think that this contention is well made; and that, therefore, the decision at Special Term was correct. In Crocker v. Mulligan (154 App. Div. 711). we held (Mr. Justice Thomas writing for the court) that where the testator at the time of the making of the will had three children and subsequently another was born who survived him-, the general expression “ our children ” did not include such subsequently born child. Here in the instant case testator had no child when he made the will, and, therefore, I would consider that the reference to his “ lawful issue ” included such issue whenever thereafter bom, except for the limitation by the words “ me surviving.” That view would be in accord with the decision in McLean v. McLean (207 N. Y. 365). The question here is not, as in the Stachelberg Case (supra), as to a limitation to a survivorship of the wife dying before the husband and so necessarily excluding his posthumous child; but is as to a limitation to an actual survivorship of himself, which might, of course, include children by a subsequent wife. Except for the words “ me surviving,” I would hold the other conclusion and advise for reversal.
Hence I dissent and vote to affirm the order appealed from, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with costs.