I dissent. The provisions of the will taken as a whole indicate that when the testatrix referred to the decease of her son Theodore without lawful issue, she meant his decease after her own death. Clearly this is so under paragraph 3 of the will, which reads: “ In case my said son * * * should die without leav*542ing any lawful issue him surviving then and in that case from his death I give devise and bequeath to my husband all of the rents * * * during his natural life.” If it were not so, and the son died survived by both mother and father, we would have the resulting anomaly of the husband’s life estate commencing its term before the death of the testatrix.
Nor can I see any reason for holding that the words “ at the decease of my said husband * * * and [at] the decease of my said son * * * without lawful issue him surviving,” as used in paragraph 4 of the will, refer to the death of the - son during the lifetime of the testatrix. The intent as I read it is not to make the provisions for the Presbyterian Church and the heirs of testatrix substitutionary devises, but rather conditional limitations to take effect on the death of the son without issue. (Tyndall v. Fleming, 123 App. Div. 837; Vanderzee v. Slingerland, 103 N. Y. 47; Mead v. Maben, 131 id. 255; Brown v. Gardner, 233 id. 261.)
Judgment directed for the plaintiff in accordance with opinion by Blackmar, P. J., costs to all parties who have appeared separately payable out of the estate. Settle order on notice.