Had the testator died intestate, the statute of distribution would have restricted the takers of the estate, which is made wholly legal assets by the will, to brothers’ and sisters’ children. The testator clearly intended to go beyond such restriction in the disposition of his estate, and the question is whether such intention reached so far as to include issue of deceased brothers and sisters so as to render the residue divisible into twenty-seven shares, or to confine it to seventeen. This question depends upon the construction of the seventh, or residuary, clause of the will, taken in connection with the rest of the instrument, and the facts of the case, which, it is understood, are agreed upon. One of these facts is that none of the children of the deceased brothers or sisters died intermediate the date of the will and the death *65of the testator, and another is that there are at l.east sixteen persons who are entitled to seventeen of the number of shares into which the residuum shall be divided.
It is further conceded that, at the date of the will, ten children of his brothers and sisters had died, leaving issue, and that, hence, if their issue are within the intention of the testator, as ascertainable from the will, the number of shares will be swelled to twenty-seven.
The learned counsel engaged have cited a large number of authorities, mostly English, on either side of the question. On examination, as might have been expected, none of them are precisely in point, because in each case, while there are some points of resemblance and some general rules of construction are formulated' and followed, yet the particular case, in so far as the language of the will and its grammatical construction are concerned, is sui generis and such is nearly ever the case. The supreme effort in all the cases is, to ascertain the true intent and meaning of the testator. The amount of the residuum is stated to be about ^112,000. Whether some of the beneficiaries will receive more or less than some others, dependent upon this or that construction, would seem to be of little importance, provided we are able to reach a just conclusion as to what wras intended. No one will dispute his right to make an unequal distribution of his estate.'
The seventh clause, which is the subject of chief consideration here, directs the executors to divide the residue and remainder into equal shares. The testa*66tor does not specify the number of shares, but leaves that to the executors to ascertain. He then proceeds to give the several shares, so ascertained, to individuals and to classes. The individuals are Grace Place (two shares), Marion Place, Emeline Hayward and Isabel Sullivan (one share each). The classes are the children of his deceased brothers and sisters living at the time of his death, to whom he gives one share each. It is ascertained that, reckoning these only, there would be seventeen shares.
The testator, however, then proceeds to say “ but in case any one or more of the children of either of my deceased brothers and sisters mentioned in this clause of my will shall die or have died before me, leaving lawful issue surviving at the time of my death, then, and in that case, such issue of my deceased nephew or niece shall receive the share which his or her ancestor would have received under this clause of my will, had he or she been living at the time of my death, excepting in the case of the issue of Lemuel Crawford, deceased, to whom this clause shall not apply.”
It is claimed on the part of those desiring to confine the shares to the smaller number, that the object of this part of said clause was simply to substitute the grandchildren for any of the children of brothers and sisters who might die intermediate the date of the will and the death of the testator; while it is insisted bv those advocating a construction which will increase the shares to the larger number, that the intention was, not only to include those who died during the intermediate period, but also those who died prior *67thereto. It seems to me that the latter is the proper construction. The word “mentioned,” following the words “ brothers and sisters,” clearly applies to the brothers and sisters mentioned in that clause, and not to the word “ children.” As to the words “ shall die or have died,” the first contemplate the then future, while the latter relate to the past. As none did die between the date of the will and the death, the former are of no practical importance ; but as some had died anterior to that date, it is to be fairly inferred that the expression was designed to apply to them. Added force is given to this view when we consider the exception in the case of the issue of Lemuel Crawford, deceased. He was a son of testator’s sister, Mary Crawford, and he was dead when the will was executed. This clearly shows that the intention was that the issue of nephews and nieces, who were then dead, should take under the will, and that Lemuel’s issue would so take, but for the exception. A sufficient reason is given why they are excepted.
This construction is in harmony with our knowledge of the laws of natural affection. It may be fairly assumed that, non constat, the issue of nephews and nieces who had died before the will, were as near and dear to the heart of the testator, in fact, as in blood, as were those whose parents might die during the period between the making of the will and the death of testator.
It follows, therefore, that the children of those deceased nephews and nieces take as direct, and not as substituted, legatees.
Decree accordingly.