The motion to dismiss the appeal must be overruled. The appellant is the issue of a deceased child of the testator ; and if not entitled to the same share of his estate as if he had died intestate, on the ground of his omission to provide for her in his will, she is at least entitled to a distributive share of all undevised estate. That interest gives her the right to appeal from a decree allowing the account of administration rendered by the executor.
The devise of the residue to the three sons of the testator, “ to be equally divided between them,” gave to each one undivided third part only. Lombard v. Boyden, 5 Allen, 249. Whiting v. Cook, 8 Allen, 63. The death of Asa D. would not affect the division. But for the revocation, the appellant would have taken her father’s share. Gen. Sts. c. 92, § 28.
The revocation, by the codicil, of the legacy to Asa D. did not enlarge the gifts to George and Benjamin. It was a revocation and nothing more. The interests of the surviving brothers must still be determined by the language of the clause in the original will.
The argument from the presumed intention of the testator to dispose of all his estate, and the apparent intention to prefer his sons, even if sufficient to support the interpretation claimed, that the gift was joint with right of survivorship, does not aid the appellees because the interest of Asa D. has not fallen in.
Case to stand for hearing.