110 N.Y.S. 868 | N.Y. App. Div. | 1908
We are again called upon to construe the 6th paragraph of the will of David Jones, deceased. (See Matter of Keogh, 112 App. Div. 414; 186 N. Y. 544.)' Said paragraph is set forth in full and the relation of the parties is stated in the opinion in that case. The daughter of Susan J. Dannat, who predeceased the life beneficiary of the trust created by the said 6th paragraph, left two children, Chandler D. Starr, an incompetent person, and Walter D. Starr. After the affirmance of our order by the Court of Appeals the committee of the incompetent and the administrator of said deceased daughter of Susan J. Dannat were made parties to the proceeding, and the modified decree entered on our decision was opened for the purpose of enabling them to present the question of their right to share in said trust fund. The surrogate held upon the authority of said prior decision that they had no such right, and said committee and Walter D. Starr, individually and as said administrator, now appeal.
The point is made by the respondents that the question is res adgudicata. While the order opening said decree is somewhat contradictory in terms, we think its evident purpose was to enable said committee to present de novo all questions respecting the rights of the said incompetent, and that whatever may be the status of the said Walter D. Stair, the prior decree no longer stands as an adjudication of the rights of said incompetent. We do not discuss the question at length, as we have concluded that the decree appealed from should be affirmed in any event.
Upon the prior appeal the only questions presented or considered were the three stated in the opinion. It was assumed that the right of said Chandler D. Starr and Walter D. Starr to share in said trust fund depended on whether the remainders vested on the death of the testator; that they would take, if at all, under their mother and not directly under the will. It is now urged that the word “ children " in the last part of said 6th paragraph should be
The words of substitutionary bequest or devise are the following, viz.: “ In case my said brother John J. Jones shall die leaving no child, children, grand child or grand children, him surviving, I direct the said trustees then to grant, convey, transfer and deliver over the said remaining one-fifth part of my estate so given to them in trust as last aforesaid, together with any income thereof remaining in their hands to the children of my sisters hereinbefore mentioned, the child or children of each to take an equal portion thereof.”
The word “ children ” must be read in its ordinary sense, unless we can find some word or expression within the four corners of the will to show that the testator used it in a broader sense. (Pimel v. Betjemann, 183 N. Y. 194, 200.) It is not enough that we find in other parts of the will evidences of a general testamentary scheme, or that we may imagine that if the testator had considered the matter more carefully he would have used a word of broader significance. We are to interpret, not make, his will, and we must construe the language used by him in its primary and usual sense, unless we can point to some word or expression showing a broader meaning. In providing for a substitutionary bequest or devise, the
Jenks, Hooker, Gaynor and Rich, JJ., concurred.
Decree of the Surrogate’s Court of Westchester county affirmed, with taxable costs to all parties payable out of the estate.