dissenting. — I might well stand upon my adjudication as written, but because of the rulings in the majority opinion, I have felt it necessary to re-analyze the will and codicil and make a further study of the questions involved in the light of the excellent brief submitted as well as the arguments made at bar. As a result, being unconvinced of error in my interpretation, I deem it proper to epitomize my conclusions:
1. Nowhere in the will is the word “issue” used except to describe children of the four daughters — for whom the trust is created — or grandchildren of testator.
2. No per capita distribution can be made where the distributees stand on different platforms — and a per capita distribution is ordered by the will.
3. If the estate in remainder is vested, I could at least understand a per capita distribution among ten grandchildren, issue of two of the four cestui que trusts; if there is no vesting, but on the contrary a division among grandchildren living when the division became effective on the death of the survivor of the four daughters, I can understand a division among the then living grandchildren per capita; but nowhere do I find any warrant for a division among seven; and that is the result of the rule of construction adopted by the majority opinion; a one-seventh to each of five living children of two of the four daughters, and one-seventh each to two grandchildren of one of these daughters. Let us test the rule; suppose there were seven granddaughters of these four daughters, if the rule be a true one, would not there be a division among twelve people? Must that not follow if there is a per capita distribution — a division which prorates the fund among children and grandchildren of the daughters to the disadvantage of the children. Great precision marks the wording of the will. “And whereas,” states testator in the seventh item thereof, “there are now living of my children four daughters,” he names them and directs that the whole of the net annual income shall be equally divided among them and paid to them by his executors and trustees during their lifetime; on the death of either leaving issue, the share of the daughter so dying shall inure to and be paid to said issue or applied to their use during minority. “Issue” standing alone might cover all descendants of these daughters were it not for the fact that in the codicil testator defines what he meant by the word “issue” as contained in the will. If a daughter dies without issue, the income thus released goes to increase the shares of the daughters; the will then continues, “and on the death of the last of my aforesaid daughters it is my will and I hereby direct that the whole of my estate, not herein specifically disposed of shall be divided equally per capita among my grandchildren the legal issue of my aforenamed daughters, the shares of such of them as shall have attained the age of twenty one years to be paid to them without unreasonable delay, and the shares of such of them as may be then minors to be retained by my executors and trustees and the income therefrom applied to the use of said minors until they shall have attained the age of twenty one years when the principal of their share of my estate shall be paid to them respectively.”
By codicil written some six weeks after the will, testator states that he has guarded against the application of the general rule of a stirpital distribution in the final distribution of his estate (see second paragraph of codicil), and by this he must refer to the disposition per capita, and thus continues: “I *670now wish in furtherance of the same principle to modify that provision in the seventh clause of my aforenamed will whereby in case of the death of either of my daughters leaving legal issue her said issue shall receive the share of the net income of my estate to which their mother would be entitled if living until the principal of said estate shall be finally distributed by substituting therefor the following provision, namely that on the death of either of my daughters leaving legal issue one eighth of the share of such daughter of the net annual income of my estate shall be paid to, or if minors for the use and benefit of each of her said children and the residue if any of such share of the net income of my estate of the said deceased daughter shall be paid in equal portions to her surviving sisters.”
Does he not thereby 'define what he meant by the use of the word issue in his will by the use of the word “mother?” The issue is to take what their mother would be entitled to if living; “their mother” spoken of was one of the four daughters of testator, and the issue necessarily confined to children of that mother, thus excluding grandchildren. Could language more clearly express the whole scheme and purpose of the will; the four daughters, each for life, and those who composed the class “their children” when the survivor of them died were to have the principal, and testator undertook to show what he had in mind by the word issue (both in the will and codicil) by that codicil: a per capita division, which necessarily, as before stated, excludes grandchildren of the daughters and great-grandchildren of the testator, “divided equally per capita among my grandchildren the legal issue of my aforenamed daughters. . . .” The word issue is synonymous with grandchildren (of testator) , and in view of what I have heretofore set forth, ignores descendants other than those specifically described.
The adjudication as written should be upheld and all exceptions dismissed.