At present this Court consists of only two Judges. Under the act organizing it, the concurrence of one of the Judges presiding, will affirm the decision below. Judge Walker concurs with the circuit Judge, and that disposes of the case. I withhold my assent. I am strongly inclined to doubt Avhether the rule of construction followed by Judge Reese in this case, and upon the correctness of which all the adjudicated cases cited by him depend, is in accordance wit'h the fundamental rule of interpretation of wills, — the intention of the testator. I cannot bring myself to think otherwise than that a testator, when he gives a moneyed legacy to the children of a deceased daughter, he means those living at the time of malting Ms will, and not those of them living at the time of his death. If the Courts would adopt the period of the malting of the will as the point of time for the ascertainment of who were intended to be the devisees, it occurs to me that many difficulties would thereby be avoided, which must continue to embarrass decision otherwise; — and they would give effect almost universally to the intent of testators. It would also give effect to that clause of our Code which declares that legacies without remainder or limitation shall not lapse, but shall vest in the issue in the same proportions as if inherited directly from their ancestor.
I desire the question open, hence this dissent.