Upon this judicial settlement the will of the deceased must be construed to determine whether or not she died intestate as to any of her property, and for that purpose other persons who might possibly be affected by the construction have been made parties, as well as the legatees.
Miss Hawley made her will in 1887, and at that time she "had one nephew, William Hawley, and fifteen first cousins, sisters and one brother of her mother, had living children. To each of these four branches of the family, she gave a one-fifth part of her estate. In one branch there was one surviving *117cousin, and she was given one-fifth; in another two surviving cousins were given the same; in another three and in another seven surviving cousins were given the same amount. The fifth share was given to the six children of two deceased cousins.
This method of distribution shows a clear intention of dividing the residuary estate among classes of relatives and not among individuals. Each class had the same amount, whether it was made up of one, two, three, six or seven individuals. It was not the individuals she had in mind so much as the fact that those certain individuals were the living representatives-of all her deceased uncles and aunts.
It was said in Ferrer v. Pyne, 81 N. Y. 281, that the rule of taking as tenants in common would yield to a very faint, glimpse of a different intention. The intention is plain that fhe nephew should receive only a bed, and not a bed and upward of $1,800. It is equally clear that the intention of the testatrix was that the one-fifth parts of her estate should go to those who constituted the classes she had selected to receive them, even though some of them died before her death, even as others had died before she made the will.
The scheme and plan of her will was to divide the estate into five parts, the number of classes, and not into nineteen parts, the number of individuals benefited. Let a decree be entered dividing one-fifth of the residue among the five surviving children of Walter and Wilson Hollister, equally; one-fifth to Lydia Hollister; one-fifth to the seven children of George Broclcaway; one-fifth to the two surviving children of Andrew Bedell, equally. Both of the legatees, children of Reuben Hawley, having died, that one-fifth share lapses and will be decreed to William Hawley, the only next of kin.
Decreed accordingly.