23 Wend. 513 | N.Y. Sup. Ct. | 1840
By the Court, It is too late to contend that a devise to the survivor or survivors of another, after his death without lawful issue, or any other clause of equivalent import, is void as being a limitation upon an in
The question to be decided arises on the last clause in the will; and the objection started upon the remoteness of the event on which the limitation of Barbara’s share was to pass to the survivors, being out of the way, the only remaining one is, whether the words used to designate the persons who were to take by survivorship, comprehend either Margaret, the deceased mother of the plaintiffs, or the plaintiffs themselves. If the former, then the share in question vested in her on the death of Barbara without issue, and came to the plaintiffs by descent. If the latter, then they take by direct devise.
The testator devised to his grand children in fee, his farm, viz.: So much to the children of his step-daughter Margaret, so much to the children of his daughter Susannah, and so much to the children of his other daughters respectively, and of his sou. All the interest he gave to any of his children in the real property, was life estates to Margaret and her husband in her children’s share, and the same to Susannah and her husband in the share of their children; with a provision in trust, securing the income to the other children for their lives, in the shares which were devised to their children respectively. The residuary shares of the personal estate, except the bequests made directly to Margaret and Susannah, were disposed of very nearly in the *same form [ *519 J as the shares of the real estate. And the final clause of the will, so far as it may be construed to reach both kinds of estate, carries them over on the same event, to the same objects. On the death of any of the testator’s children or his step daughter, without issue, then the share or portion which otherwise would have gone to the issue, was to be equally divided among the survivors of his children or grand-children., The event happened on the death of Barbara. Did any interest in that share of the farm intended for her children, pass, either to Margaret or her children ? She was the testator’s step-daughter; neither she nor her children were of his blood ; and it is not contended that either come within the primary meaning of the words under which they claim. Nor is Margaret called the testator’s child in any part of the will; but always his step-daughter, whenever she is named, being some five or six times in different parts of the instrument. It is said she is provided for as a child ; but the same thing might be said of any one for whom the testator had made a similar provision, a sister or a niece, or an adopted child. There is more plausibility in saying that she was considered by the testator as one of his children, from the circumstance that, in the devise which 'distributes the farm, her children are grouped with those of Susannah, John, &c., under the common title of grandchildren. But in that very clause she is styled, as elsewhere, the step
Beside, admitting Margaret to rank as one of the children, it [ *520 ] can hardly be maintained that she would have taken *a fee. The original devise of the fee in the farm shares was to the grand children, the parents taking no more than life estates respectively, either legal or equitable ; and the will would totally depart from the scheme with which it set out, unless the contingent clause meant that the parents should still be confined to the same limited interests — grand children taking the fee by direct devise.
In either view, the claim of the plaintiffs, as heirs of Margaret, cannot be sustained.
We next come to the question, whether her children are, in this particular case, to be considered as the testator’s grand children. I say in this particular case: for the counsel have no difficulty in agreeing that the law, when left to its own operation, denies that they could take as being included in the class of grand children, any more than Margaret, by a devise to children. The counsel also agree that the testator may make his own glossary in the will itself; and that if he is to be understood in any part of it as declaring that for all the purposes of his will, the children of his step-daughter were to bo considered as his grand children,, that overcomes the law. This brings the question down to one of mere construction on the main devising clause. The glossary is to be found there if any where. In this he says, “ I give to my grand children my farm, as follows, to wit: to the children of my step-daughter Margaret, lot No. 1; to the children of my daughter Susannah, lot No. 3,” &c. apportioning his farm. He would not have been understood in this devise, which was quite special, either as to persons or parcels, had he stopped with the words grand children and farm. He therefore adds, to wit, that is, meaning Margaret’s children to come in for so much of the farm, and Susannah’s for so much, &c. And there can be no doubt, that for the purposes of this particular devise, he is to be understood as calling Margaret’s children his grandchildren. But was this merely for the sake of explicitness in this clause, or did he mean to define the term grand children for the purposes of the last clause. That he meant it for the sake of being clear in the first clause, we know. He then goes [ *521 ] on as I have mentioned, contradistinguishing *Margaret as his
I have not looked into this case the 'less, because the vice chancellor of the first circuit adhered to the primary sense when appealed to for a distribution of the personal estate of Barbara, which was carried over by virtue of the words in question, surrounded with the same circumstances now again insisted on as qualifying them. Barnes v. Greenzebach, 1 Edw. Ch. R. 41. The result is, to my mind, what I had supposed it would be from the known learning and industry of that judge ; a conviction that his decision was *not only warranted, but required by the spirit of the [ *525 ] adjudged cases, and the only safe principles of construction.
The result is, that judgment upon the special verdict must be rendered in favor of the defendants.