| New York Court of Chancery | Feb 15, 1870
The bill is filed by the complainants for the construction of the will of Mary Eeit, and for directions as to the execution of it, which devolved upon them as the executors of ■ Paul Feit, her surviving executor. Mary Feit bequeathed to each of her other children $700, and then bequeathed to her executors $700, in trust, to pay the interest annually to her daughter, Ann Davision, during her natural life, and
The residue of her estate she directed to be equally divided among her children; and that the part which should fall to her daughter, Ann Davison, should remain in the hands of her executors, and the interest of it be paid to her daughter Ann, during her natural life; and after the decease of Ann, she gave her part of the residue to her children, equally to be divided among them. At the date of the will Ann had one child, Mary, who afterwards married Samuel Vanatta, by whom she had children. She died in the lifetime of her mother, leaving her husband and children surviving her. Ann Davison died in 1866, leaving no other children or descendants than the children of Mary Vanatta. Ann Davison’s share of the residue was $746, which was retained for her by the executors; and the question now is, whether this specific and residuary bequest passes to her daughter’s children, or to her representative, or falls into the residue of the estate.
The word children used in this will, does not, in its settled and usual signification, include grandchildren, though it is sometimes used to include them. The settled rule in the construction of wills is, that it will not be construed to include grandchildren, tuiless there is something in the context to show that the testator intended that it should include grandchildren, or unless the provision will be inoperative without such construction. 1 Roper on Leg. 68; 4 Kent 345; 2 Jarman on Wills 69; 2 Williams on Executors 988; Crooke v. Brookeing, 2 Vern. 106; Radcliffe v. Buckley, 10 Ves. 195; Moor v. Raisbeck, 12 Sim. 123; Mowatt v. Carow, 7 Paige 328; Cutter v. Doughty, 23 Wend. 522; Tier v. Pennell, 1 Edw. Ch. 354; Hone v. Van Schaick, 3 Edw. Ch. 474; S. C., in Error, 3 N. Y. 538.
In this case, there is nothing in the will to show that the testator intended to include grandchildren. There is no
This limitation over is confined to the specific legacy, and . is not annexed to the bequest of the residue. The gift of the interest of the residue to Ann, for life, and the principal to her children at her death, gave a vested interest to such child of Ann as was living at the date of the will, and the death of the testatrix. This was held by the Court of Errors, in a will where the children were named, in Howell’s Ex’r v. Green’s Adm’r, 2 Vroom 570.
The result of the decisions on this point, is correctly stated in 2 Williams on Executors 983. “ Upon an ordinary limitation by way of remainder to children, &c., in a class, all who are in esse at the time of the death of the testator, take vested and consequently transmissible interests, immediately upon the testator’s death, and all who come in esse before the particular estates end, and the limitation takes effect in possession, are to be let in, and take a vested interest as soon as they come in esse, and they and their representatives will take, as if they had been in esse at the testator’s death.” In the residuary bequest there was no limitation over in case no child of Ann was living at her death, as in the gift of the $700. The residuary legacy to Ann being vested in her daughter Mary, from the death of the testatrix, and no other child having been born in the life of Ann, must be paid to the representative of Mary; that is the administrator of her estate. It is personal estate, and after payment of debts must be distributed according to
It was a proper case fcr the executor to ask directions, and the costs of the parties must be paid out of the estate; also, a counsel fee to the executors.