12 A.D. 335 | N.Y. App. Div. | 1896
The question to be determined in this case depends upon the construction to he given to the eighth clause of the will of George .Chesterman, deceased. The will ivas executed on the 16th day of October, 1865. .At the time the testator had living four children, two-of age and two infants. James, the oldest, was then twenty-four. ■ Carrie, the mother of the plaintiffs,, was then twenty-two, was married and had one child living, and the other two children of the testator were then ten years of age. James, at that time, had not nor since that time has he had, children. The other two children are alse unmarried and without issue. By the eighth clause of the will the ' .testator, having made certain provision for his wife during her life,, gave all the rest and residue of his real estate to his ■ executors in trust, to divide the net income, after deducting a .third part thereof" which had been given to his wife, between his children in equal pro- ' portions during their natural lives, and further provided that “ upon the death- of either of my said children, I do give and devise" the fourth part of such real estate to the issue or heirs of such child, in •fee, to be equally .divided between them.” The question depends, ripon whether we are to construe the words “ issue or heirs ” as making an alternative devise to the issue of each child if he or she should leave issue surviving, or in case of failure of issue to the heirs-; of such child generally; or whether the words “ issue or heirs ” are to be considered as synonymous,, so that in the absence of issue of a. child dying, that child’s share would -go to the testator’s heirs at law,, who woiild then take by descent and not by purchase.
The word “ heirs ” is used but once in the rest of the will,, namely, in the seventh clause, where it is quite evident that it.
By the eighth clause of the will he created a trust substantially similar to that he had created as to his personal property. Such real estate was devised to his executors in trust, one-third óf the income therefrom to be paid to his wife during' her life, two-thirds to be divided equally among his children during their respective lives, and, upon the termination of the trust as to each share by the death of a child, the share held for that child was disposed of by the clause in question. I think we must consider the age and condition of the children at the time the will was executed in determining just what ultimate disposition of his estate the testator intended by these words. Two of his children were of age, one unmarried and without children, the other married with one child, and the other two children, infants, about ten years of age. The testator must have had in mind at the time of the execution of this will the possibility of one of these three unmarried children dying without issue; and, certainly, there is nothing in the will which would
. The rule applied ¡in the construction of wills, that in a doubt- " fill case the court is never to give to a will a construction that will involve Intestacy of any portion of a testator’s property, is well settled, ds is conceded by the learned counsel for the appellants; and ■ I think we should apply this rule in this case, unless it appears by the Will itself, or from the circumstances surrounding the testator at the time of ¡the making of the will, that he had an intention not to dispose of Ills real estate by the will upon the happening of the quite possible contingency of one of his three children dying without leaving issue surviving.. The two words used, “issue” and “'heirs,” : have a well-settled legal meaning, and, while, this legal meaning will yield in a case where, such meaning would defeat the intention- of the testator, it has been many times held that, in the absence of anything indicating such an intention, the primary legal meaning will be given to'such words when used. The primary meaning of the word “issue” includes all descendants (Drake v. Drake, 134 N. Y. 224), but.-would not include the heirs at law of a person dying without, children. The meaning of the word “ heir ” is much more extensive, and is applied to the person upon whom, the law casts the estate in lands, tenements and hereditaments immediately upon the death of his ancestor. Thus, while the word “issue” would be included within the broader definition of the word “ heir,” a devise to heirs might include a class not included within a devise to his “ issue.” We must presume that the testator was. acquainted With the primary legal-meaning of these two words when applied to a devise of real • estate, and that when he added the words, “ or heirs of such child,” he had an intention of doing something that Would not be accomplished by the will without the use of those words. If either of his children died leaving issue, such issue would include the children and grandchildren df the child so dying. He must have intended
We have carefully examined the codicils to the will,, but find nothing in them that will tend to indicate that the testator had a different intention. The first codicil of any importance was executed twelve years after the will; and the other two upwards of fifteen years after the will. The situation of the testator’s children had then materially changed. The youngest children had become of age, and an intention of the testator at that time, as a modification
We think, therefore, that the construction adopted by the referee was right, and that the judgment should be affirmed, with costs.
.Yah Be'unt, P. J., Rumsey, Williams and Pattebson, JJ., concurred.
Judgment affirmed, with' costs.