The opinion
Learned, P. J.,
(dissenting.) The rule of construction is clearly stated in Britton v. Thornton, 112 U. S. 526 , 5 Sup. Ct. Rep. 291: “When a devise is made to one person in fee, and, ‘ in case of death, ’ to another in fee, the absurdity of speaking of the one event, which is sure to occur to all living, as uncertain and contingent, has led the courts to interpret the devise over as referring only to death in the testator’s life-time. But when the death of the first taken is coupled with other circumstances which may or may not ever take place, as for instance death under age, or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death under the circumstances indicated, at any time, whether before or after the death of the testator.” And it is well said that this is “the ordinary and literal meaning of the words. ” No one would probably have any doubt as to what the testator intended. And when he declares that, in the event of one child dying without leaving issue surviving, he wishes his property to go to another child, it is difficult to believe that he referred only to a death preceding his own. Testators expect that their children will survive them, and they make their wills accordingly. In O'Mahoney v. Burdett, L. R. 7 H. L. 388, this subject was very carefully considered in opinions by Lords Cairns, Hatherley, and Selborne. They held that a bequest to A., and, if she shall die unmarried or without children, to B., is an absolute gift to A., defeasible by an executory gift over in the event of A. dying at anytime unmarried or without children; that this construction can be affected only by a context which renders a different meaning necessary. This is the doctrine of 2 Jarm. Wills, marg. p. 688. This rule is recognized in the opinion in Vanderzee v. Slingerland, 103 N. Y. 54 , 8 N. E. Rep. 247, citing Jarman, and stating that this rule relates to personal property, but giving a different rule in the case of real estate. And the court remarks in regard to real estate that “the rule rests more upon authority and precedent than reason; for it is by no means certain that it was not the intention of the testator to control and provide for the ulterior devolution of the title after it had been enjoyed during life by the primary devise, in case he then died without issue; and such a construction would, it would seem, give effect more completely to the language used.” That last remark is forcibly true.’ A testator looks forward to time and to events after his death. He does not usually contemplate events which may be previous thereto. If he does, he indicates this by specific language. When he says, “If any of my children shall die, ” he speaks of their death after his. If he were thinking of the death of a child prior to his own he would say: “If any of my children shall die before me, not leaving children.” And since the object of courts should be to carry into effect the intention of the testator, they would do this better by following the literal meaning, rather than artificial rules. The will directs the executor to sell the land. Therefore there is a conversion into personalty, and the rule as to real estate does not apply. All, or nearly-all, the cases cited in opposition to the decree were cases of devises of real estate. Nor do 1 see anything in other parts of this will to take it out of the rule laid down in Britton v. Thornton and O’Mahoney v. Burdett. On the contrary, item 7 provides for the distribution of Jonathan’s share, if he died intestate, among his own children according to the discretion of the executors. If he died before his father, then he could not make a will which would dispose of his share of his father’s estate; therefore this provision must have reference to Jonathan’s dying intestate after his father’s death. In that case the executors were to distribute in their discretion his *738 share among his children. Hence Jonathan was not to take an absolute title; and his death mentioned in item 7 was a death at any time. There is no reason to suppose that the testator had any different time in his mind when, in item 8, he provided for the contingency (in Jonathan’s case, as well as in the case of others) of dying “without leaving surviving child or children or heirs of the body.” He did not intend in any case that his property should, under the will, pass from his descendants, at least till it had reached his grandchildren. I think the decree should be affirmed.