Van Houten v. Hall

Bergen, V. C.

Assuming that the bequest to Caty and the children of George was to-a class, and that Caty, if living, would have taken per capita with the children of George, I am nevertheless of the opinion that under the language used the children of Caty take as substitutes for their mother, and only such share as she would have taken if alive at the period of distribution. The gift was not to her and her children. Consequently they formed no part of those first entitled. They could, in no event, participate with their mother, and could only acquire an interest should their mother die before distribution.

The class of donees intended by the testatrix, if any, consisted of Caty and the children of George. They took a vested interest upon the death of the testatrix, subject to its being devested should the life tenant die leaving issue. The testatrix did not create a class which included Caty’s children as original parties, for if the mother had been alive when Adrain died she would have taken, to the exclusion of her children.

The gift was not conjunctive, but disjunctive; not to Caty and her children, but to her, or her children if she was not alive when distribution was made. A gift to two or more persons or *629their children is substitutional, and the children take only their parents’ share. Bartine v. Davis, 60 N. J. Eq. (15 Dick.) 202. The trustees will be advised that the fund is to be distributed per stirpes between the children of Caty and the representative of the child of George. The fees of the trustees and other expenses incident to the distribution of the fund will be settled when the decree is handed up for advisement.