Murdock v. Ward

James C. Ward, by his will, empowered his executors to pay to his sons, after their arrival at the age of twenty-one years, the whole or part of their portion of his estate as they should deem prudent. Charles F. Ward, a son of testator, died before he had received his share, there being about $67,000 thereof in the executors’ hands at the date of his death. He left a widow and. one child, an infant.

The will provided for distribution in case of death of the son as follows: “ And in case the whole of said principal shall not be paid to them, or either of them, during their lives, then the said principal, or such part or portion thereof as may remain unpaid, to be equally divided among and paid to the persons entitled thereto, as their or either of their next of kin, according to the laws of the State of New York, and as if the same were personal property, and they or either of them had died intestate.” The clause above given suggests three constructions:

1. That the widow and child take equally.

2. That the widow is not next of kin, and the child takes all.

3. That the widow takes one-third and the child two-thirds, as if the son had owned the property and had died intestate.

I think the last the true construction of the clause in question. *14The words “ equally divided ” among the persons entitled thereto are restricted by the last part of tbo clause, “ and as if the same were personal property, and they or either of them had died intestate.” In other words, the direction is to distribute the property equally in the manner provided by law as in case of intestacy. The law does not distribute equally between a widow and child. No other mode of distribution but the one established by statute as to personal property in case of intestacy is furnished, and that should be followed.

Decree modified accordingly.

Judgment modified by giving widow one-third and child two-thirds of fund.