The opinion of the court was delivered by
Bell, J.Although when this will was first before us, the court disclaimed an intent to pass upon the rights of those who might be in a position to claim an interest in the sum to be divided after the death of the testator’s widow, I regard the question of construction now presented, as in effect answered by that decision.
The testator directed his real and personal estate to be sold (with some unimportant exceptions) and the net-proceeds to be divided among the children, “share and share alike,” and at the times of their severally arriving at the age of twenty-one years; excepting, however, from the primary disposition, $1000 of the whole sum, which he ordered to be placed at interest, for the use of his widow, and at her decease to be divided amongst “ my surviving children, or their heirs, as last above directed.” And it was held that the legatory shares, payable before the death of the widow, were vested interests, passing immediately to the legatees, though not payable to them respectively until each attained full age. But it is obvious that,.in this respect, the testator intended,'by the subsequent direction, to establish no distinction between the sums distributable before the decease of his widow and that to be enjoyed after her death. His evident object was to give all he possessed to the same persons; but, from necessity, different periods were designated as the times of actual enjoyment, in the event of his widow surviving the moment when the eldest child should attain his majority. It is as if he had said, I give all my effects to my children, to be divided between them, share and share alike, one part wh.ereof is to be paid in equal proportions to each, when they respectively reach the age of twenty-one years, and the other portion to be paid to them, in like manner, after the death of my widow, to whose use I bequeathed the latter portion during her life. Thus stated, it is clear that if the first-mentioned portion be vested in the benefi*86ciaries, individually, on the death of the testator-, the second portion is equally so. Indeed, when construing these clauses, on the former occasion, the court found a very influential reason for holding the first-mentioned portion to be vested, in the peculiar form of language employed to direct the second payment. After citing it, it was observed, “Here it is clear, that by the decease of his children, before the death of his wife, the legacy would not he lapsed,” and it was added, “ the understanding of the testator would seem to be that both clauses, in this respect, were alike5 W. Ser. 519. To me, this is so apparent, I feel no hesitation in saying, that when the meaning of either of the clauses is ascertained, the other is necessarily discovered. But if the latter clause stood alone, deriving no aid from what precedes it, its proper interpretation is judicially determined by Patterson v. Hawthorn, 12 Ser. & R. 112, and King v. King, 1 W. & Ser. 206. Both these are cases upon testaments, in which the disputed clauses are very similar to that in question here. In each of them a sum was'set apart for the use of the testator’s wife during life, and at or after her death to be equally divided among his children, or their heirs. It was adjudged the latter words were equivalent to “legal representatives,” and, consequently, the intent was, the legacy should be paid to each child, if living at the time of distribution,, and if not, then to the person who, as its legal representative, was by law entitled to it. Accordingly, in the first of these cases, the legacy was decreed to belong to the husband of a female legatee, who had died in the lifetime of her mother. If it be objected that, in our case, the sum distributable after the widow’s death is payable to the surviving children, the answer is, it can make no difference in the construction, even if the survivorship is to be referred to the death of the widow. Eor the words, “ or their heirs,” are used, though awkwardly, in an alternative sense, and, therefore, bear the same meaning as in the cases cited. Our testator could not have meant that his bounty was to be divided among his surviving children, or the heirs of such survivors. There could not, at the moment appointed for the division, be both survivors and their legal representatives. Necessarily, then, the true reading is a direction for division among such of the children as should then survive, and the legal representatives of those then dead. When, too, it is recollected that some of the legatees were daughters, who might marry and bear children, the legal propriety of this reading becomes still more obvious. If essential to subserve such a possible interest, the operation of the word “survivor” would be restrained to the period of the testator’s death. It is scarcely necessary to add, that the investment of the sum set apart for the use of the widow, in real estate, can work no change in the rights of the parties. They have a right to follow the fund.
Judgment affirmed.