majority">Hirschberg, J.

On the first trial of this action — a partition suit —the defense was a defect of parties defendant in that the' grandchildren of both the testator and his widow had contingent interests and were not made parties. Judgment for the plaintiff on-a trial of this issue of law was reversed and a new trial ordered. See report of case, Schwencke v. Haffner, 18 App. Div. 182. -Since that decision and on the 29th day of June, 1897, the testator’s widow died, and the rights and interests of the parties in the real estate are now to be finally determined.

Christopher Huss, the testator, died December 3, 1880, leaving Caroline Huss, his widow, and four children, all children of a former marriage, viz.: Amelia, Louisa, Charles and Elizabeth. At .the time of his death, his widow had living issue of a former marriage, two children and a grandchild, viz.: George Zaeh and Bertha Zaeh, children, and Henry Himsell, grandchild, the son of a deceased daughter. Thé testator and-his widow had no children in common. ...... .

George Zaeh died July 22, 1889, intestate -and unmarried. Caroline Huss, the widow, and her daughter Bertha Zaeh- executed a conveyance April 24, 1889; of all their interests in the es*295tate to the testator’s children, Amelia Huss, now the plaintiff, Amelia Sehwencke, Louisa Huss, now the defendant Louisa Haffner, and Charles Huss, equally. Charles Huss died December 22,1895, leaving his widow, the defendant Rosa Huss, to whom he devised all his estate by will dated June 21, 1890, and admitted to probate January 21, 1896.

The widow, Caroline Huss, did not remarry. By the terms of the will of Christopher Huss, the full text of which will.be found in 18 App. Div. 183, it was provided.that “ upon the death of my wife, if she should die without having again married, that then my said real and personal estate shall be equally divided, share and share alike, between my wife’s children and my children then living or their heirs.” From the context and the fact that this provision embraces the personal estate, and that the daughter Elizabeth and the grandchild are excepted from its benefits, I conclude that the word “ heirs ” is not used in its legal and technical sense, but in the sense of issue or descendants. At the time of the widow’s death, the only children living who could take were Amelia, Louisa and Bertha, and each would be entitled to a third, but for Bertha’s conveyance. By her deed, she conveyed her third to Amelia, Louisa and Charles, and the one-third of that third which Charles thus acquired goes to his devisee, the defendant Rosa Huss. The other eight-ninths belong equally to the plaintiff and the defendant Louisa Haffner.

In the Matter of Baer, 147 N. Y. 353, the rule is stated as follows: “Where final division and distribution is to' be made among a class, the benefits of the will must be confined to those persons who come within the appropriate category at the date when the distribution or division is directed to be made. Bisson v. W. S. R. R. Co., 143 N. Y. 125; Goebel v. Wolf, 113 id. 405-411; Teed v. Morton, 60 id. 506; In re Smith, 131 id. 239, 247. In such cases the gift is contingent upon survivorship, and if it vests at all .before the date of distribution, it is subject to be divested by the death before that time of a person presumptively entitled to share in the distribution.”

• Decree will be settled in accordance with the terms of division herein stated.

Ordered accordingly.

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