8 Paige Ch. 375 | New York Court of Chancery | 1840
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
The decision of the vice chancellor must therefore be affirmed, with costs.