3 Barb. Ch. 466 | New York Court of Chancery | 1848
The objection that the residuary legatees and all other persons w.ho were entitled to legacies under the will should have been made parties to the suit, was not made imthe answer of the defendants. It was too late, therefore, to make it at the hearing; even if the objection would have been valid if made in the answer, or by a demurrer to .the complainant’s bill. I think, however, all the necessary parties Were before the court to enable the complainant to claim his general legacy under the fourth clause of the will. The bill showed that no account was necessary ; and as a general rule a legatee may sue the executor for his own particular legacy without making the residuary legatees, or any other legatees, parties to .the suit. The case is otherwise where one of the residuary legatees sues for his share of the-residue. For as an account of the estate .must be .taken in that case, the executor may insist that the other residuary legatees shall be brought before the court; tosa velum the trouble of accounting, a second time, at their.suit. (Pritchard v. Hicks, 1 Paige's Rep. 270.) It .is true the particular legacy claimed, if allowed, will reduce the fund bequeathed to the residuary legatee, who is therefore interested in the .question. But this is one of those cases in which the interest of .the residuary legatee is .protected .by representation ; the.executors representing the residuary estate and those interested therein, fo.r the purpose of protecting it against all prior claims upon it, which might diminish its amount. (Calvert on Part. 20. Wainwright v. Waterman, 1 Ves. jun. 313. Anon, 1 Vern. 261. Lawson v. Baker, 1 Bro. C. C, 303.)
The declarations of-the testator could not be received, as evidence of what .[re intended hy the terms nephews and nieces. But the situation of the testator’s family relatives, and the fact that these grand-nephews and nieces, together with the child of the complainant’s deceased sister, were at the time of the making the will the only representatives of the testator’s deceased sister Elizabeth, are proper to be taken into consideration, in connection with what appears upon the face of -the will.
As a general rule, in the construction- of wills, the testator must-be presumed to have used words in their ordinary or primary sense and meaning; unless from the context of the will it appears that he must have intended to use them in some other, or secondary sense; or where by reference to extrinsic circumstances which existed at the time of making of the WÜ1, or which .must necessarily exist iii.the event or at tJ,ie time contemplated by him, the use of such words in their ordinary, or primary sense, would render the provision of the will in reference to which such words were used insensible, absurd, or inoperative. Thus the word children, in its primary and ordinary sense, means the immediate legitimate descendants of the person named. And where there is nothing to show that the testator intended to use it in a different sense, it will not be held to include illegitimate offspring, step-children, children by marriage only, grandchildren, or more remote descendants. (Radcliffe v. Buckley, 10 Ves. 195. Earl of Orford v. Churchill, 3 Ves. & Bea. 69. Izard v. Izard’s Ex’rs, 2 Desaus. Rep. 309. Gardner v. Heyer, 2 Paige’s Rep. 11 Hussey v. Berkeley, 2 Eden’s Rep. 194.) The words nephew's and nieces, likewise, in their primary and ordinary .sense, mean the immediate descendants of the brothers and sisters of the person named ; and do not include grand-nephews and grand-nieces, or more remote descendants. (Falkner v. Butler, Amb. Rep. 514. Shelly v. Bryer, Jacob’s Rep. 207.) But there are several circumstances, in .the case now under consideration, from which it may fairly .be inferred that the testator, in the fourth clause of his will, used the words nephews and nieces in a secondary sense; so as to include the more remote descendants of his sister Elizabeth, except her grandson John Cromer. The fact that the .testator excepts John Cromer,by name, be being a grand-nephew only, from ,t.he class of-nephews and nieces to whom lie gave .legacies of $>500 each, and that he also gave a similar legacy to his children collectively, by the description of the children of .his nephew John Cromer, very clearly shows he
Again ; I infer from the bill and answer, though that fact is not stated in terms, that the testator’s brother was a lunatic, and had been under the charge of the testator as his committee. The principal part of the estate is given to that brother for life, and after his death it is devised and bequeathed to all the testator’s collateral heirs. And the third and fourth clauses of the will appear to have proceeded upon the principle of giving to each of those who were to share in the ultimate remainder, in the residuary estate, a legacy of $500 in the meantime. The testator therefore, by the third clause of the will, gives to each of the children of his sister Catharine a legacy of $500; and then, by the fourth clause, he gives to each of his other nephews and nieces, except John Cromer, whose children are provided for in the 10t.h clause, a similar legacy of $500. And as the testator himself showed that the words nephews and nieces were not used in their primary sense, of immediate descendants of brothers and sisters, they were broad enough to reach more remote descendants of his sister Catharine, if any of her children had died, leaving issue. But it would be out of the usual course of construction to give to the children of his sister Catharine double portions, or distinct legacies," under the third and also under the fourth clauses of the will; or to permit both parents and children to take under the description of nephews and nieces of the testator. The vice chancellor was therefore right in holding that the three children of Catharine Emerson were not entitled to legacies, and that she took a legacy, as a niece of the testator, under the fourth clause of his will.
I am also inclined to think the vice chancellor was right in deciding that the great-grand-niece of the testator, Mary Elizabeth Ferris, whose ancestors of his blood were all dead at the time of making the will, was also entitled to a legacy under the fourth clause of the will. But even if the declaration in the decree is wrong in that respect, it cannot be reversed or altered upon this appeal, to which that legatee is not a party. The
