41 N.J. Eq. 89 | New York Court of Chancery | 1886
Wilson Eldridge, late of Mercer county, died in September, 1872. By his will, after directing payment of his debts and funeral expenses, he gave to his wife, for life, the use and occupation of his homestead farm (except eight acres devised to his son Alexander), and of all his household goods and furniture,
“ I also further direct my executors to secure at interest one-eleventh of my estate, as above named, together with the one-tenth of said $300, and that they pay the interest thereof, yearly, to my son, Robert Eldridge, during his-natural life; and, at the decease of my son, Robert Eldridge, they pay the principal sum to his lawful heirs, s'hare and share alike.”
The testator’s widow died in 1872. Robert Eldridge died August 27th, 1885, leaving a widow and six children, all born before the testator’s death. He had had another son, Robert Eldridge, Jr., who died October 7th, 1872, after the death of the testator and before the death of the testator’s widow, leaving a widow and an infant child named Robert Oliver Eldridge, who died January 26th, 1875, in the fourth year of his age. The child’s mother survived him, and is a defendant in this suit.
By the term “ lawful heirs,” in the clause under consideration, the testator meant children. He gives, not the fund, but the interest thereof merely, to his son Robert for life, and then provides that at the decease of Robert the principal sum be paid to Robert’s “ lawful heirs, share and share alike.” The fact that the division among those who are described as Robert’s lawful heirs is to be an equal one, is some evidence that the testator did not mean, by the term “ lawful heirs,” next of kin. The use of the qualifying term “ lawful ” is also somewhat indicative of the same thing. The cases in which such language has been interpreted to mean children are numerous. In Bowers v. Porter, 4 Pick. 198, the testator devised to his daughter the improvement of a farm — the premises to be equally divided between all her legal heirs at her decease. It was held that she took a life estate only, and that her children living at the testator’s death took a vested remainder in fee. In Davis v. Davis, 12 Stew. Eq. 13, the words “ lawful heirs ” were construed to mean legitimate children. The word ■“heirs” is used in the clause under consideration as a word of purchase. Under the will, Robert took a life interest in the fund _ and his children a vested remainder. That remainder vested at the death of the testator. Though the gift is found only in the direction to pay, yet there being a prior gift for life, and the direction being to pay on the decease of the legatee for life, the gift in remainder vested at once on the death of the testator; the contest of the will showing no different intention. Theob. Wills. 275; 1 Rop. Leg. 589; Bowers v. Porter, ubi supra. The case differs es