concurring.—I concur in sustaining the exceptions as to distribution of the residue for the reasons just given, but think it worth while to refer to a body of decisions which throw some additional light on the question. Precedents can be overvalued in construing wills, but what other men have thought under much the same circumstances is a guide to right thinking. The cases will be found collected in the note at 40 Cyc., 1522.
Where the gift to issue of children who may die is substitutionary, it plainly follows that the issue of a child who is dead at the date of the will are not included, for there is no primary gift to the ancestor and nothing for which to make substitution. The difficulty isi to know whether the gift to the issue is substitutionary or is itself primary. There is little to aid construction; the result is often elusive, and I would not be able to reconcile all the cases. If looked at coldly, the gift to issue is generally substitutionary, and it has been so regarded in most cases, including Ritter v. Fox, 6 Wh. 99. Where there is no other provision for the issue of a child already deceased, the result is harsh, and it is not to be wondered at that contrary opinions are found in Park’s Estate, 21 W. N. C. 227, by Judge Penrose, and In re Smith, 5 Ch. Div. 497 (note), by Sir George Jessel.
In the present case, as there is other provision for this issue of a child already deceased, and as the gift to issue is expressly called “the parent’s share,” I now think that it is substitutionary. Long v. Labor, 8 Pa. 229, is influenced by the lack of any such special treatment of the son of a child already deceased. Because of a general plan of equality in the body of the Will including the grandson, it was considered in that case that he was not to be omitted from the residuary clause.