152 Misc. 9 | N.Y. Sur. Ct. | 1934
The court is asked to construe the “ third ” paragraph of decedent’s will, which was admitted to probate in this court June 25, 1888, and which reads in part as follows: “After the death of both my wife Julia A. Herrick and my son Frank C. Herrick * * * I give, bequeath and devise all of said real estate and the proceeds of any sales thereof with the increase to the lineal descendants of my said son Frank C. Herrick per capita, share and share alike.”
Frank C. Herrick died December 4, 1933. He left him surviving three children, Julia H. Kellogg, William C. Herrick and Ruth H. Ward. Julia H. Kellogg has three children, William C. Herrick four, and Ruth H. Ward has one child. All of the grandchildren of Frank C. Herrick are infants.
The special guardian of the infants contends that the phrase “ lineal descendants,” as used in the will under construction, comprehends all persons in the direct line of descent from the ancestor, and that each of his wards is entitled to an one-eleventh part of the residuary estate.
The meaning of the word “ descendant ” as given by Webster is “ any person proceeding from an ancestor in any degree, issue, offspring in the line of generation.” Descendants, when used either in written or spoken language, when unconnected with any qualifying word, describe the children, grandchildren, etc., of the person named, and where that person is dead it embraces his posterity. (Van Beuren v. Dash, 30 N. Y. 393.)
Unless there is something in the will which would indicate that the testator made use of words having in common parlance a definite meaning in other than their natural and ordinary meaning, we must assume that he intended them to be understood in their natural and popular sense. Jarman in his Treatise on Wills (6th ed.), page 1587, says: “A gift to descendants receives a construction answering to the obvious sense of the term; namely, as comprising issue of every degree.”
Decedent’s will was a carefully-drawn document which gives every evidence of the utmost deliberation and caution in its preparation, and of the careful use of the proper legal terms by its draftsman. I can find in it no such expression of a clear intention by the testator to limit the meaning of the words “ lineal descendants ” as to bring them outside of the ordinary rule. On the contrary, we find that the decedent used these words with care and discrimination so as to leave them plain and unambiguous. While it has been said that the word “ issue ” is of even broader import than “ descendant ” (Matter of Schuster, 111 Misc. 534), nevertheless the application of the term is the same and is never limited to children unless an intention is clearly expressed in the will that the testator intended to limit the use of the term. (Matter of Van Etten, 136 Misc. 436.) It is only when there are doubts that it was used in any other than