72 N.Y.S. 301 | N.Y. App. Div. | 1901
This is a -submitted controversy to obtain a construction of the 4th provision of the will of George Hostrand, deceased.
The general sense of the word “ issue ” includes all descendants; it has the same practical effect as the words “ heirs of the body.” (Chwatal v. Schreiner, 148 N. Y. 684; Drake v. Drake, 134 id. 220; Soper v. Brown, 136 id. 244, 247; Kingsland v. Rapelye, 3 Edw. Ch, 1; Schouler Wills, § 554.) When employed to describe a devise to a person and his issue, it is considered as a term of limitation, not of purchase. (Drake v. Drake, supra.) The term, however, has been said to be “ambiguous,” so that notwithstanding its prima facie meaning as a word of limitation, it may be construed as a word of purchase when such intention is to be gathered from the context or from the provisions of the will. (Authorities supra.) I find nothing in context or in any part of the will in this case that would justify a departure from the prima facie meaning of these words. I think that they were used as an expression of limitation for the vesting of the fee in Henry L. Norman. While, of course, this use was not necessary, it is “ quite common,” with the purpose of greater definition or for greater' certainty or by way of pre- " caution. (Thurber v. Chambers, 66 N. Y. 42; Matter of Allen, 151 id. 243; Clark v. Cammann, 14 App. Div. 127.) We are, therefore, of opinion that Henry L. Norman took a fee simple absolute in the real estate devised by the 4th paragraph of the will, and that when the said Henry L. Norman tendered the deed of the premises herein to plaintiff, and when he delivered such deed to plaintiff, he was so seized, and had a good and valid title thereto.
Goodrich, P. J., Woodward, Hirschberg and Sewell, JJ., concurred.
Judgment for the plaintiff on submitted case, without costs.