In re the Estate of Utz

[203]By the Court,

Wallace, J.: The material portions of the will of the deceased are as follows:

“I will, give, and bequeath, and order my executors to give after my death to my children the following property, to wit: To my eldest daughter, Elizabeth TJtz, * * * the sum of fifty dollars * * *; to my son, Daniel TJtz, the sum of five dollars; and to my youngest daughter, Margaret TJtz, and to her children, I will and bequeath * * * all my property, moneys, lands, furniture, etc., that will be left after my death,” etc.

The testator had another daughter, who was deceased at the time he published his will, leaving two children, the Harwigs, surviving her, and also'surviving their grandfather, the testator.

The latter omitted in his will to provide for these grandchildren, nor are they in anywise mentioned therein.

First—The Court below held, and we think correctly, that the Harwig infants were together entitled to the one fourth of the estate after the payment of the specific legacies, etc., being the same share which they would have received had the deceased died generally intestate. There is nothing in the point that the testator in the outset having mentioned his “children ” as the intended recipients of his bounty should, therefore, be considered as intending the exclusion of these grandchildren. The Statute of Wills (section seventeen) enacts that in case the testator shall have omitted to provide for his child, or for the issue of his deceased child, such omitted child or issue shall have the same share in his estate as in case of general intestacy, “ unless it shall appear that such omission was intentional.”

'We think that it would be attributing an unwarranted degree of significance to the, perhaps, fortuitous expression “children” used in the introductory clause of the will, [204]should we infer therefrom the existence of a deliberate purpose, actually in the mind of the testator, to wholly exclude the children of his deceased daughter from a share of his estate.

Second—The other question involved concerns the devise to Margaret and her children. Its language has been given already, and it is argued that, by construction of law, the estate which passed thereunder vested solely in the mother. This view is based in the main upon the rule of law known as the rule in Shelly’s Case. But that rule, when applied to wills, is confined to cases in which after a freehold interest is devised to one, the remainder is to go in terms to the heirs of the first taker. In such cases the word “heirs” is considered as importing a limitation upon the estate of the first taker only, and not as denoting that the latter are themselves to take as purchasers. Here, however, the devise is to Margaret and her “children,” and neither the reason upon which the rule itself was founded, nor the adjudged cases- which support it, embrace such a case as this. The word “ issue ”