In re Hallet, 8 Paige Ch. 375

In re Hallet

8 Paige Ch. 375 | New York Court of Chancery | 1840

The Chancellor.

The real estate specifically devised is, as to all the shares, limited to the grandchildren of the testator ; among whom the children of the step-daughter are designated by him by the term grandchildren. If the question arose, therefore, as to that portion of the real estate specifically devised to the children of Barbara, in case she should have any, there certainly would be much reason to suppose that by the term grandchildren in the last clause of the will, the testator had included the children of his step-daughter, who were called his grandchildren in a previous clause. In the case of Hussey v. Berkley, (2 Eden’s R. 194,) Lord Northington, upon the question whether the testatrix intended to include great grandchildren under the term grandchildren, considered the fact that she had in another part of the will called a great grandchild her granddaughter, as conclusive evidence of her intention to include such great grand-daughter in the residuary clause of the will, under the general description of her grandchildren. (See also Wigram on Wills, 29.) As a general rule, however, the testator must be presumed to have used words in their ordinary or primary sense ; especially where he has in other parts of his will used different words to designate a person, who is sought to be included in a bequest or limitation over to a class, by giving a secondary sense to the language which the testator has used to designate that class. (7 Paige’s Rep. 339.) Here the construction is to be put upon the last clause of the will as to the limitation over of the personal property only; as the proceeds of the real estate directed to be sold are to be considered as personal estate, and to be distributed and disposed of in the same manner. The question therefore is not upon the word *379grandchildren ; as the children of Susannah and of the stepdaughter were not entitled to any share of the personal estate, the two-sixths thereof being absolutely vested in their parents at the death of the testator. It is only that share of the testator’s estate which by the will is given to the grandchildren, or to the issue of Susannah and of the stepdaughter, to which this clause of survivorship among his grandchildren applies : that is, the two lots devised to the children of Susannah and of the step-daughter after the death of their parents, and the four lots and the four-sixths of the personal estate, and the residuary real estate converted into personalty and given to the issue of the four other children. The question therefore is, whether the testator’s surviving children, in this last clause, includes his step-daughter; so as to entitle her to a share of the personal estate and of the proceeds of the residuary real estate bequeathed to the children of Barbara. In reference to this question, I think the vice chancellor was right in supposing that the testator did not intend to include the step-daughter in the term children ; although he probably did intend to include her issue in the term grandchildren. By examining the will, it will be seen that in every other clause where any reference is made to her, and even in the commencement of this last clause, he shows that he recognized the difference between her and his real children; as he uniformly calls her by the appropriate name of step-daughter, while he calls the others his daughters, or his children. There are perhaps some grounds for believing, from the general frame of the will, that she was left out of this clause of survivorship by inadvertence, or by mistake of the scrivener who drew the instrument; and that the testator might have intended to put her and her children upon the same footing with his daughter Susannah and her children, in every respect, in the disposition of his estate. But if such was his intention, it is not sufficiently manifested, by any thing contained within the four corners of this will, to authorize this court to give effect to such an intention ; upon the settled rule of construction to which I have before re*380ferred. Here the limitation over “ to his surviving children and grandchildren, in the proportions in the will previously mentioned,” is perfectly sensible, and consistent with the situation of the testator’s family ; whether the words "survivors of my children” were used by him according to their natural import, or in a secondary sense. And as there is nothing in the context showing these words were intended to be used in a secondary sense, so as to include the step-daughter, their primary sense must prevail in giving a construction to that clause of the will.

The decision of the vice chancellor must therefore be affirmed, with costs.