stirpital succession, so that the share of a daughter deceased without leaving a child would fall back into the residue to be distributed according to the existing stirpes.

5. Where there was no law in the state for the adoption of children at the time testator made his will, he could not have had in mind the subsequently adopted child of one of his children in directing that the "child or children" take the parent's share of the residuary estate on distribution under certain conditions.

6. Act of 1877 (P. L. 1877 p. 126 § 4), investing an adopted child with the right of inheritance from the adopting parent, does not create in such child capacity to take the share which the deceased adopting parent would have taken under such will, if living.

On final hearing on bill, answer, replication and proofs.

Mr. Edward M. Colie, for the complainant.

Mr. John R. Hardin (Mr. Joseph D. Lee, of the New York bar, with him on the brief), for Margaret S. Cook and others.

Mr. William J. Magie, for Thomas H. Stout and others.

Mr. Mark A. Sullivan (Mr. Robert H. Griffin, of the New York bar, with him on the brief), for Audrey Osborn.

HOWELL, V. C.

The bill in this case is filed to obtain a construction of the will of John W. Stout, who died in 1861. He left a widow and seven children, among whom was his daughter Augusta, who married one Appleton and who died in December, 1907, without issue. At the time of her death the children of the testator who were living were Gideon L. Stout, one of the complainants, and Thomas Stout, a defendant. The four other children were dead, one of them, Jacob, having died without ever having had issue, but leaving the defendant, Audrey Osborn, whom he had adopted as his daughter in accordance with the laws of the State of New York in 1900. Amelia, Margaret and Abby, three of the children, died, leaving issue, all of whom were made parties defendant to this suit. The litigation arises over the disposition of the share of the testator's estate, the life estate in which had

been enjoyed by Mrs. Appleton. On her death without issue three sets of claimants to the fund have arisen-first, her two brothers who actually survived her; second, the issue of her three sisters who predeceased her, and third, Audrey Osborn, who claims to take as the adopted daughter of Jacob Stout, one of the testator's children.

The paragraph of the will which causes the dispute is as follows:

“Fifth. The whole residue of my estate I order and direct shall be divided into seven equal parts or shares, and to each of my sons, to wit, Jacob, Thomas & Gideon Lee I give and bequeath absolutely and without condition or qualification one full part or share and the remaining four shares of the residue of my estate, I order and direct my executors the survivors or survivor of them, to invest at interest on good landed security, and the interest and profits arising therefrom I direct to be paid from time to time as the same may be received in equal shares or proportions to each of my four daughters, (their respective receipts to be a full discharge for the same) during their respective natural lives, and on the death of either of my said daughters I give and bequeath her share of the said residue of my estate to the child or children of such deceased daughter in equal shares or proportions; and in case such deceased daughter shall leave no child or children such share shall be esteemed as part of the residue of my said estate the interest and profits of which, to be paid in equal proportions to my surviving children during their natural lives, and on their respective deaths, the principal to be paid to the child

or

children of such deceased child; such child or children to take the parent's share, and I do order and direct that any advancements made or moneys loaned to either of my sons in law, and for which I have or hold any evidence in writing, shall be deemed and taken as advancements made to my daughter who is the wife of such son in law, and shall be charged to and deducted from such daughter's share or proportion of my estate herein bequeathed to her."

It will be observed that the general scheme of the will was to provide for the descendants of the testator not equally as amongst the children who survived him, but equally among the stirpes or stocks of his issue. As to his sons he provided for an immediate vesting of their shares and for immediate possession thereof. As to the daughters there was a settlement of an equal share upon them during the terms of their respective lives, with remainder to their issue and a devise over in default of issue. The devise over is to those persons whom the testator had in mind when he used the term "surviving children” and

eventually the issue of such surviving children per stirpes. The problem is to determine who were meant by the testator when he used the term "surviving children."

An examination of the decided cases shows that the phrase or its equivalent has been very often used in wills and has been very often the subject of litigation. One of the English judges remarked that the cases on the subject were so numerous and so conflicting that he did not think the wit of man could reconcile them. This is owing to the fact that it is difficult to frame a general rule according to which all cases involving the construction of particular words and phrases may be decided. There is sufficient variation in the wording of wills to account for the different manner in which the words which are in dispute in this case have been construed. Lord Halsbury said in Inderwick v. Tatchell (1903), A. C. 120; 72 L. J. Ch. 393: "I confess I approach the interpretation of a will with the greatest possible hesitation as to adopting any supposed fixed rule for its construction. If I can read the language of the instrument in its ordinary and natural sense I do not want any rule of construction; and if I cannot, then I think one must read the whole instrument as well as one can, and conclude what really its effect is intended to be by looking at the instrument as a whole. I so far go with the contention of the appellants here, that I think it quite possible-nay, I may go further and say I think it is probable that if the testator had contemplated the particular event that has happened in this case he would have provided for it. But with that single observation I am not at liberty, because an event has happened which I think has not been provided for, to conjecture what the testator would have provided if he had thought of it beforehand. I am not at liberty to disregard the application of the ordinary rule of construction of every document-namely; that you must look at the whole document, and, if you can, you must read the words according to their natural and reasonable meaning."

* * *

I may say in passing that this idea was given expression to in a case in which the facts were quite similar to those in the case in hand, the prime difference being that the devise over was to "their then surviving brothers and sisters."

Notwithstanding the fact that each will in the matter of construction must stand upon its own footing, many attempts have been made by the courts and text writers to formulate a rule which should have a more or less general application touching the construction of the words in question. It must be admitted that generally these words must be given their common ordinary meaning unless there is something in the text which requires that a different meaning should be given to them. This is so held in Holcomb v. Lake, 24 N. J. Law (4 Zab.) 686, and in other cases cited in the briefs before me, and also so held very strongly in the several opinions delivered in the case of Inderwick v. Tatchell above cited. I think it is equally clear that the words in question refer to such persons as shall answer the description at the time of the distribution of the fund and not at the death of the testator.

Ashurst v. Potter, 53 N. J. Eq. (8 Dick.) 608; Slack v. Bird, 23 N. J. Eq. (8 C. E. Gr.) 238; Dutton v. Paugh, 45 N. J. Eq. (18 Stew.) 426, affirmed, sub nom.; Jones v. Jones, 46 N. J. Eq. (1 Dick.) 554. The New York and Massachusetts cases are not a safe guide on this point. They seem to favor another view. See, also, Cripps v. Wolcott, 4 Mad. 12, and In re Duke, 16 C.

D. 112.

We are, therefore, to inquire who were the persons who answer the description of surviving children at the date of the death of Mrs. Appleton. Mr. Jarman (3 Jarm. Wills 547) states a rule of construction which Mrs. Cook and those belonging to her class urge should be applied to this case. It is expressed in these words:

“Where a gift to the 'survivors' of several legatees, limited to take place on a certain event (as the death of any of them under age or without issue), is followed by a gift over, not if there should be no survivor at the time the event hapens, but if that event should happen to every one of the legatees; (as if all die under age or without issue) 'survivors' is read others. From the contingent gift over of the whole in a mass it is inferred that the testator meant the legatees to take it amongst them in every other contingency which can only be secured by means of cross limitations between them,"

citing for his authority Doe v. Wainewright, 5 T. R. 427; Cole v. Sewell, 4 D. & W. 1; 2 H. L. Cas. 186, and Wilmot v. Wil

mot, 8 Ves. 10. A much better expressed statement is found in 2 Wms. Ex. 1332. The writer says:

"The word 'surviving' has been construed 'other' to give effect to the apparent intention. Thus where a fund is given between a class or number of persons as tenants in common for life, with interest in the nature of remainders to their children respectively, and a valid provision is made that in the event of the death and failure of issue of any of the original takers, the share of the original taker or takers so circumstanced shall go to the survivors or survivor of them, the words survivors or survivor may, if the scheme of the will requires it, be considered as an expression of contrast used for the purpose of distinguishing the takers not so circumstanced, and therefore as meaning 'others or other.' But the word 'survivor' must receive its natural construction and not be read as meaning 'other' unless the nature of the disposition itself, or the context of the will, renders a departure necessary to effectuate the apparent intention of the testator."

Watson, in his Compendium of Equity (vol. 2) p. 1222, extracts this from the cases. When following the limitation or gift to the survivor or survivors, and if any should die without issue or without attaining the age prescribed, there is an ultimate gift over if all die without issue or without attaining the prescribed age, survivors or survivor will be construed as others or other, letting in the issue of deceased children to share from the surviving children.

In Waite v. Littlewood (1873), 8 Ch. App. 70; 42, L. J. Ch. 216, the testator directed one-sixth of a fund to be held in trust for each of his six daughters for life with remainder for the benefit of their respective children, with a proviso that if any of them should die without leaving issue who should live to attain a vested interest, her share should be in trust for his surviving daughters in equal shares during their respective lives. with remainder for their respective children per stirpes. The will contained a gift over in case none of the testator's daughters should have a child who should live to attain a vested interest. One of the daughters died leaving three sisters and children of two deceased sisters her surviving and without leaving any issue of her own. Held by Lord Selborne, L. C., that the children of the deceased sisters were entitled to participate in the share to which the daughter having the life estate had been entitled, and that the words "surviving daughters" must be construed to mean