The Surrogate.
The testator, Stephen H. Tuttle, bequeathed to his son, Hiram A. Tuttle, one twelfth part of his estate. Hiram died during the lifetime of his father, and after the execution of the will, leaving him surviving, his sons Otto B., OsroB. and Fred B., who are still living.
Hiram died intestate and indebted to his father, and his estate is still indebted to the estate of his father, in the sum of $777.55, after applying his real and personal estate to the payment of his debts. The executors of Stephen H. Tuttle now ask for a decree on [51]*51this accounting, deducting the amount of Hiram’s debt from the one twelfth of the estate bequeathed to him; to which the guardian for the children of Hiram objects, claiming that the legacy to their father vested in them, free from the payment of his debts.
Under the common law, if the legatee died before the testator, the legacy lapsed. But our statute provides as follows:
“Whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate” (2 R. S., 66, §52).
It is evident that this change in the common law was made for the benefit of the descendants of the deceased legatee. Under the common law, the legacy thus lapsed fell into the residuary fund, if any, and might pass to those who had no natural claim upon the testator’s [52]*52bounty, leaving Ms grandchildren penniless. To relieve this harshness and injustice of the common law our statute was passed.
If the intention of the legislature had merely been to save the legacy to the estate of the deceased legatee, that result could have been obtained by simply providing that such legacy should not lapse on the death of the legatee. It would then become a part of the assets of his estate, to be distributed by his representatives to creditors and next of kin. But there are no.words in the statute indicating that any benefit was intended to be conferred upon creditors. The legacy never vested in Hiram, nor in his estate, never formed any part of his estate ; his representatives had nothing to do with it, but upon Ms death and the death of the testator it vested immediately in his children. They did not take the legacy through or from him, but in his place and stead.
If the legislature had passed this statute for the benefit of the creditors as well as the children of the deceased legatee, they would not have restricted the application of the statute to cases where the deceased legatee left children or other descendants.
[53]*53Should the construction urged by the executors prevail, it would follow that, if Hiram had left no children, his more distant relations would be preferred to his creditors, but that, as against his own children, the creditors would be preferred. In other words, the creditors could deprive the children of the legacy but not remote relatives (Van Beuren v. Dash, 30 N. Y., 393). The legislature could not have intended such results as these. I think the last clause of this section “as if,” etc., does not qualify the meaning of what goes before, but is merely explanatory as to the quality and character of the title vesting in the descendant. If the intent of this clause was to encumber the property descending from the grandfather to the grandson, with the debts of the father, it would have been very easy to employ more apt words than these.
It is conceded by counsel upon both sides that, so far as this question is concerned under the N. Y. Statute, there is no reported case construing its meaning; but some light has been thrown upon the subject in the discussion of similar statutes of other states.
I will first consider the English statute, under which the case cited by the counsel for the executors arose.
[54]*54The thirty-third section of the Statute, 1 Viet., ch. 28, provides “That where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed,
This statute saves the legacy from lapsing under the common law, and provides that it shall take effect as if the legatee had survived the testator,—in other words, vest in the legatee notwithstanding his death pre[55]*55viously to the death of the testator. In. this respect, the English statute is entirely different from ours, which vested the legacy in the descendant of the legatee, instead of the legatee himself. Our statute prevents any disposition of the legacy by the will of the legatee, but under the English statute it “takes effect” or vests in him so that he may dispose of it by will, as is decided in Johnson v. Johnson (3 Hare Ch., 157), cited by counsel for the executors. If not disposed of by will, it would go to his administrators. Therefore, under this statute, the distributive share to the next of kin, if no will is made, or, in case of a will, the legacy to the descendant or other object of the bounty of the first legatee, are transmitted through him and not direct from the ancestor—the descendant of the child is not substituted in place of the father, but takes direct from the. father, as heir or next of kin, and not as legatee.
The Massachusetts statute upon this subject is as follows:
“Where a.devise of real or personal estate is made to a child or other relation of the testator, and the devisee dies before the testator, leaving issue who survive the testator, such issue shall take the estate so devised in the same manner as the devisee would have done if he [56]*56had survived the testator,” etc. The words “in the same manner,” in this statute, correspond to the words “as if,” in our own statute. It seems to me they are identical in meaning. They are certainly no more favorable to the position of the executors, than the words “as if,” in our statute.
In Paine v. Prentiss (5 Metc., 396), the testatrix devised real estate to her nephew in trust for her niece, and to her heirs and assigns forever, the income thereof to be paid to the niece during her life. The niece died before the testatrix, leaving a daughter who survived the testatrix. ' It was held that the daughter took the estate in fee and discharged of the trust. Justice Hubbabd, writing the opinion, says : “Thedefendant’s title then flows directly from the testatrix by force of the statute, which preserves the legacy, and substitutes the child as the legatee, in place of the parent, and discharged of the trust.”
The Horth Carolina statute reads as follows: ‘ ‘
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The Surrogate.
The testator, Stephen H. Tuttle, bequeathed to his son, Hiram A. Tuttle, one twelfth part of his estate. Hiram died during the lifetime of his father, and after the execution of the will, leaving him surviving, his sons Otto B., OsroB. and Fred B., who are still living.
Hiram died intestate and indebted to his father, and his estate is still indebted to the estate of his father, in the sum of $777.55, after applying his real and personal estate to the payment of his debts. The executors of Stephen H. Tuttle now ask for a decree on [51]*51this accounting, deducting the amount of Hiram’s debt from the one twelfth of the estate bequeathed to him; to which the guardian for the children of Hiram objects, claiming that the legacy to their father vested in them, free from the payment of his debts.
Under the common law, if the legatee died before the testator, the legacy lapsed. But our statute provides as follows:
“Whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate” (2 R. S., 66, §52).
It is evident that this change in the common law was made for the benefit of the descendants of the deceased legatee. Under the common law, the legacy thus lapsed fell into the residuary fund, if any, and might pass to those who had no natural claim upon the testator’s [52]*52bounty, leaving Ms grandchildren penniless. To relieve this harshness and injustice of the common law our statute was passed.
If the intention of the legislature had merely been to save the legacy to the estate of the deceased legatee, that result could have been obtained by simply providing that such legacy should not lapse on the death of the legatee. It would then become a part of the assets of his estate, to be distributed by his representatives to creditors and next of kin. But there are no.words in the statute indicating that any benefit was intended to be conferred upon creditors. The legacy never vested in Hiram, nor in his estate, never formed any part of his estate ; his representatives had nothing to do with it, but upon Ms death and the death of the testator it vested immediately in his children. They did not take the legacy through or from him, but in his place and stead.
If the legislature had passed this statute for the benefit of the creditors as well as the children of the deceased legatee, they would not have restricted the application of the statute to cases where the deceased legatee left children or other descendants.
[53]*53Should the construction urged by the executors prevail, it would follow that, if Hiram had left no children, his more distant relations would be preferred to his creditors, but that, as against his own children, the creditors would be preferred. In other words, the creditors could deprive the children of the legacy but not remote relatives (Van Beuren v. Dash, 30 N. Y., 393). The legislature could not have intended such results as these. I think the last clause of this section “as if,” etc., does not qualify the meaning of what goes before, but is merely explanatory as to the quality and character of the title vesting in the descendant. If the intent of this clause was to encumber the property descending from the grandfather to the grandson, with the debts of the father, it would have been very easy to employ more apt words than these.
It is conceded by counsel upon both sides that, so far as this question is concerned under the N. Y. Statute, there is no reported case construing its meaning; but some light has been thrown upon the subject in the discussion of similar statutes of other states.
I will first consider the English statute, under which the case cited by the counsel for the executors arose.
[54]*54The thirty-third section of the Statute, 1 Viet., ch. 28, provides “That where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed,
This statute saves the legacy from lapsing under the common law, and provides that it shall take effect as if the legatee had survived the testator,—in other words, vest in the legatee notwithstanding his death pre[55]*55viously to the death of the testator. In. this respect, the English statute is entirely different from ours, which vested the legacy in the descendant of the legatee, instead of the legatee himself. Our statute prevents any disposition of the legacy by the will of the legatee, but under the English statute it “takes effect” or vests in him so that he may dispose of it by will, as is decided in Johnson v. Johnson (3 Hare Ch., 157), cited by counsel for the executors. If not disposed of by will, it would go to his administrators. Therefore, under this statute, the distributive share to the next of kin, if no will is made, or, in case of a will, the legacy to the descendant or other object of the bounty of the first legatee, are transmitted through him and not direct from the ancestor—the descendant of the child is not substituted in place of the father, but takes direct from the. father, as heir or next of kin, and not as legatee.
The Massachusetts statute upon this subject is as follows:
“Where a.devise of real or personal estate is made to a child or other relation of the testator, and the devisee dies before the testator, leaving issue who survive the testator, such issue shall take the estate so devised in the same manner as the devisee would have done if he [56]*56had survived the testator,” etc. The words “in the same manner,” in this statute, correspond to the words “as if,” in our own statute. It seems to me they are identical in meaning. They are certainly no more favorable to the position of the executors, than the words “as if,” in our statute.
In Paine v. Prentiss (5 Metc., 396), the testatrix devised real estate to her nephew in trust for her niece, and to her heirs and assigns forever, the income thereof to be paid to the niece during her life. The niece died before the testatrix, leaving a daughter who survived the testatrix. ' It was held that the daughter took the estate in fee and discharged of the trust. Justice Hubbabd, writing the opinion, says : “Thedefendant’s title then flows directly from the testatrix by force of the statute, which preserves the legacy, and substitutes the child as the legatee, in place of the parent, and discharged of the trust.”
The Horth Carolina statute reads as follows: ‘ ‘ When any person, being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed for any estate or interest, not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any such issue of such person shall be living at the death of the [57]*57testator, such devise or bequest shall not lapse, but shall take effect and vest a title to such estate in the issue surviving, if there be any, in the same manner, proportion and estate, as if the death of such person had happened immediately after the death of the testator. In Smith v. Smith (5 Jones Eq., 305), the Supreme court of that state held that the debt of the legatee, who died before the testator, leaving children, could not be deducted from the legacy; that the statute was passed for the benefit not of creditors, but of the issue of the deceased legatee.
In Newbold v. Prichett (2 Whart., 46), the Supreme court of Pennsylvania held, under a statute similar to our own, that the statute was intended to give a benefit to the issue, and not to confer any right upon the legatee or devisee, to control the devise or legacy; that where A willed real estate to her son B. and then B. willed all his estate to his children, and died before A., leaving children, the children took under the will of A. and not under the will of B. Sergeant, J., says: “It is plain that it was for the issue only, the law was passed.”
I am not aware of any decision in which the views of the executors upon this question have been sustained__
[58]*58Let the decree to be entered provide that the legacy given to Hiram A. Tuttle be paid to the general guardian of his children, Otto B., Osro B., and Fred B. Tuttle, and that the costs, of the executors and the contestants on this- accounting, be paid from the assets of the estate.
Under this statute, has recently been determined in the negative the question whether the exercise, by a testator, of a limited power of appointment, was such a devise or bequest as was saved from lapsing by the death of the appointee before that of the donee of the power (Holyland v. Lewin [Ct. App., Ch. Div., March 1884], 32 Week. Rep., 443). In that case, A. having devised property in trust for such of his children or issue as his wife, by will or codicil, should direct or appoint, A.’s widow made a will appointing the real property, in pursuance of the power, to the use .of certain of his children, some of whom died in her lifetime.