61 N.J. Eq. 412 | New York Court of Chancery | 1901
This bill, filed by the executors of the will of Joseph Baldwin for instructions in the distribution of his personal estate, under his will, raises two question for decision:
First. Whether testator died intestate as to the remainder of his personal estate, in which his' wife was given an interest during widowhood, which life estate has terminated by her death, and
Second. If he did not die intestate, then whether, under the clause of his will which disposes of this remainder of his estate, the children or issue of one of the four children of the testator, who died before the date of the will, receive one-fourth of the estate, or whether the estate is to be divided into three shares between a son and daughter of testator, living at the death of the tenant for life, and the children of a daughter who, though living at the date of the will, died before the termination of the life estate.
As to the 'first question: The will, after directing testator’s debts to be paid and appointing executors, bequeathed to his wife a farm in Minnesota and his household furniture in fee, “and also, for the time she shall remain my widow, all rents, interests and profits into and out of my estate,” excepting certain property, on Market street, Newark, devised to a son and daughter, from which she was to receive certain quarterly payments during her life. The executors were then authorized to sell all other property of which testator might die seized, at their discretion, the proceeds of sale to be invested in unencumbered real estate, sufficiently productive “to pay interest, &e., so accruing to his wife during life.” Next follows the only provision in the will as to the disposition of his estate after the death of his wife, in these words:
“At the death of my said wife the intest so aerwmg shall be paid eaqually to my living children, or their heirs, share alike—the children receiving the share coming to my children.”
It will be observed that the corpus of the estate, as distinct from the interest or income, was not, expressly and in plain
“At tlie death of my said wife, the interest so accruing shall be paid equally to my living children, or their heirs, share alike—the children receiving the share coming to my children.”
It is insisted on their behalf that the clause in question is a primary or original bequest to testator’s children living at the date of the will (or of his-death) as a class, and that the bequest to “their heirs” was a subsequent bequest by way of substitution only to the heirs of this class of children in case of the death of any member of this class before the time of distribution, and that no heir of a child of testator can take by way of substitution, unless the parent for whom they are substituted was himself (or herself) intended to take, and capable of taking, as a member of the class of primary legatees. And it is claimed, therefore, that inasmuch as a child who was dead at the time of the will could not be intended as one of the testator’s “living children,” or “children,” at the date of his will (or of his death), the heirs or children of such child, dead at the date of the will, cannot take as substituted legatees. Upon the other hand, it is claimed that the bequest of the testator, “at the death of my wife, to my living children or their heirs,” &c., refers to children of testator living at the period of distribution (the death of the wife) or the heirs of any of testator’s children then dead, and
“A gift to children living at the period of distribution, or their issue, will be construed as a gift to the children then living, and the issue of those then dead, including the issue of those dead, at the date of the will, but not, it would seem, of those who were dead befor testator was born.”
He also says {Ibid.): “If there is anything to show that the original and substituted classes are to take co-ordinately, 'or’ will be read ‘and.’ ” In the following English cases, cited by Theob. Wills, supra, being some of those referred to by counsel, the gifts to the heirs were, as here, by a single clause, the word “or” was read as conjunctive, and heirs of children were held to include the heirs of children dead at the date of the will. In King v. Cleaveland, 26 Beav. (Romilly, M. R., 1858), the bequest was to the children of testator’s brother, or their legal representatives. In re Philips’ Will, 7 Eq. 151 (Romilly, M. R., 1869), the direction was after the death of testator’s wife, to divide a sum among his children then living, or their heirs. In re Sibley’s Trusts, 5 Ch. Div. 494 (Jessel, M. R., 1877), a leading case thoroughly discussing the question as to how far authorities aid decision in this class of cases, there was a gift of real estate to A. for life, and then, in trust, to sell and hold proceeds for all and every the children of F., or their issue, in equal shares. In other cases of bequests by a single clause the word “and” was used in a single clause, instead of “or,” but “children” was construed as including the children dead at the date of the will. Clay v. Pennington, 7 Sim. 370 (Vice-Chancellor Shadwell, 1835); Tytherleigh v. Harbin, 6 Sim. 329 (1835). In Parker v. Tootal, 11 H. L. 143 (1865), a different rule was applied to a bequest to “my daughters, and their children.”
The wills construed in our own courts, so far as I have been referred to the decisions, are those where the issue or heirs took
“among my several children, share and share alike, and in the event of any -of my said children dying before my wife and leaving issue them surviving, such issue shall be entitled to receive the parent’s share, the same as said parent would receive were he or she living.”
The issue of a child who was dead at the date of the will were held to be included, and it was held that by “my several children” testator did not mean his several children then living, but meant all of his children. A fortiori, where the gift to the children or their heirs is made, as here, by a single clause, it must be presumed that the testator had in mind the heirs of all his children.
The argument most strenuously urged for the exclusion of the heirs of a- child deceased at the date of the will is that the words “their heirs” refer, and must refer, not to “children,” but to “living children,” as their antecedent, and therefore cannot include the heirs of any child deceased. But, as above pointed out, the real question is whether, by a gift after the death of his wife “to my living children,” the testator meant “my [now] living children,” or “my [then] living children.” By making the gift not immediate, but to take effect and be enjoyed at a future time, the testator has rendered the expression “my living children” ambiguous, but as it must, upon the whole will, be referred to some time, the question is at what time did testator intend to refer to his children as “living.” If he meant children living at the date of the will, and those only, then “their heirs” refers to these “living children.” If, on the other hand, he meant either living at the date of his death, or at the date of ■ distribution, then “their heirs” refers to “children” as its only antecedent, for' there could be no “heirs” to a child living at either of those periods, nor could the testator be presumed to have intended a gift to the heirs of a “living child.”
My conclusion is that the heirs of a child of testator who