190 Misc. 502 | N.Y. Sur. Ct. | 1947
On this judicial settlement proceeding construction of the will is requested to determine whether or not the word “ children ” as used therein includes descendants beyond
At the testator’s death he had thirty-nine nephews and nieces living, all of full age, and by coincidence the same number of grandnephews and grandnieces. His older daughter, Louise, died in 1933 leaving just the one child before mentioned, to whom was paid the sum of $25,000. The other daughter is living, is about sixty-six years of age, and has only the one daughter before mentioned, who is about thirty-two years of age, and it appears that she has children.
Only eighteen of the original thirty-nine nephews and nieces are now living. Some of those who have died have left children who have died leaving issue. Over one third of the remaining nephews and nieces are without issue. There are now at least sixty-four great-grandnephews and great-grandnieces and eight great-great-grandnephews and great-great-grandnieces.
Presumptively the word “ children ” means descendants of the first degree. (Pimel v. Betjemann, 183 N. Y. 194; Matter of King, 217 N. Y. 358; Matter of Pulis, 220 N. Y. 196; Matter of Schaufele, 252 N. Y. 65; Matter of Curtis, 252 App. Div. 256,
At the time of the execution of the will the testator’s only children, though not young, had just begun to have children. It was natural that he should expect that they might have several more; and that one or more of them might die leaving issue prior to the death of the life beneficiaries. He gave to each of the children whom his daughters might leave the sum of $25,000 payable out of the trust fund. He dealt equally with them. If the word “ children ” were limited to first degree descendants of testator’s daughters, and if Helen, the daughter of testator’s daughter Caroline, were to predecease her mother, the gift which the testator meant for such grandchild would fail. Section 29 of the Decedent Estate Law is not designed to save such a gift. The testator gave all the rest of the trust fund to his nephews and nieces and their “ children ”. It cannot be presumed that even though his grandchildren predeceased his children, leaving issue, he meant to give all of this fund to his collaterals to the exclusion of his descendants. Hnder the circumstances it is not reasonable to believe that the testator used the word “ children ” in this respect in the limited sense. The presumption is that he did not intend to disinherit his descendants. (Matter of Brown, 93 N. Y. 295, 300, supra; Smith v. Lawrence, 66 Hun 362; Davids, New York Law of Wills, §§ 496, 647, 661.)
Hnder the plan of the will, and in view of the age of the testator’s daughters at that time, it is evident that the testator expected that the greater part of the trust fund should be distributed among his collateral relatives as a part of his family, and that this was a “ family ” gift. There is nothing in the will to indicate his desire to favor one branch of such beneficiaries as against another. The contrary is true, for he directed that each nephew and niece and the children of each nephew and niece who survived him but predeceased the life beneficiaries, should share equally, in effect per stirpes. The
The primary gift to the nephews and nieces and the secondary gift to their children are gifts to classes. The Restatement of the Law of Property (part 3, § 302) provides for this situation as follows: “Distribution — Glass ‘Children’ Substituted as the Takers of a Share of an Excluded ‘ Possible Taker ’ in a Primary Class. When a conveyance contains (a) a primary limitation in favor of a class; and also (b) a secondary limitation in favor of the ‘ children ’ of a possible taker under the primary limitation, substituting such group as the takers of that share under the primary limitation which such possible taker would have taken if he had lived to the time of distribution, then, unless a contrary intent of the conveyor is found from additional language or circumstances, any share which becomes distributable under the terms of the secondary limitation is distributed per stirpes to the members of such substituted class, ascertained in accordance with the rules stated in §§ 285-290 and 294-299.”
It has also been held that a testamentary provision deferring for a long time the determination of the ultimate takers of a gift, indicates an intention to include remote descendants. (Pfender v. Depew, 136 App. Div. 636, 640.)
The language of the will shows an intent to have equal per stirpital- distribution, “ and such intent is more completely accomplished by a broader inclusiveness of the term ‘ children ’ ”. (3 Restatement, Property, § 285, subd. [2], pars, [b], [d].) The word “ children ”, therefore, is construed as meaning “ issue ”, to wit, the descendants of such nephews and nieces in any degree. The “ broader inclusiveness ”, however, must be limited to per stirpital distribution (Matter of Farmers’ Loan & Trust Co., 213 N. Y. 168); and in this case it must also
Submit decree accordingly.