The opinion
Laughlin, J. (concurring).—
I concur in the views expressed by Mr. Justice Smith, and vote for reversal. I am of opinion that the provisions of the will directing that the residuary estate be divided into as many shares or portions as the testator left children him surviving is qualified by the further provisions with respect to the prior death of a child leaving issue, and that the true construction of the will is that if the testator left children and the issue of a deceased child, no matter whether the death of such child occurred before or after the making of the will, the residuary estate should be divided into a number of shares equal to the number of sons and daughters of the testator who survived him, plus the number of his sons and daughters who pre-deceased him, leaving issue surviving the testator.
The plaintiff and the defendant Rosemary Kane, who are the children of the testatrix’s son Michael, are, therefore, entitled to take the share which Michael would have taken had he survived the testatrix.
Ingraham, P. J., Clarke, Soott and Smith, JJ., concurred.
Judgment reversed, with costs, and motion denied, with ten dollars costs.