162 Misc. 855 | N.Y. Sur. Ct. | 1936
Nearly twenty years before her death in 1935 this testatrix made her last will, wherein she directed, among other things, that if her husband did not outlive her -— which proved to be the fact •— then her executors should divide her estate into eight equal parts and pay over one of those parts “ to each of my children living at the time of my death, or to the heirs at law of any children of mine now living who shall not survive me.”
To ascertain the persons whom she meant to designate by the words “ heirs at law ” in the alternate clause just quoted has now become, in the sequence of events, the task before this court, especially in respect of the share intended for her son George Merritt Ward, who died before his mother’s death.
This will is in the handwriting of the husband of the testatrix. He, apparently, copied it from a fairly well-drawn draft, although he himself was not skilled in the law. Not unlikely this clause was in the original; for the phrase in question is one that even lawyers sometimes use somewhat loosely. As a whole the will shows much more legal skill than does the ordinary holograph.
The only other place where the will uses this phrase, “ heirs at law,” is in a setting that does not shed any light on the exact sense in which testatrix used this phrase in either place.
The circumstances were that at the date of the will, February 10, 1916, testatrix had a son named George Merritt Ward, who nearly two years before this will had married with the petitioner, now his widow; and of that marriage, and after the date of his mother’s will, there were born four children, all of whom, except one, are now living, The exception was their first-born child, Charles E. Ward, who was born February 17, 1917, but lived only five months. His father died testate on April 12, 1928, leaving his widow and those three children him surviving. The testator’s mother outlived him by seven years, and died May 12,1935.
In that setting, when testatrix used those words, “ heirs at law,” she had known for two years her son George’s wife; and also that this wife as yet had no children; for the first child came a year
In the case at bar, testatrix, in 1916, could not have known that this particular son would predecease herself, nor that his estate would be all in personalty, as in the event it was, nor that he would later will it all to his then existing wife; and the language of testatrix is inappropriate to designate a person who might take under a will other than her own. From the fact she knew this son had a wife, it may be inferred that the words she used were meant to include her. Had she meant to exclude affinities and to include only blood relatives she naturally would have used the' words children or descendants, if not issue, or she could have relied upon the statute to save the legacy from lapsing. In selecting the broader words ‘ heirs at law ” she probably meant all those to whom the law in effect at the date of her own death would pass her property, that is to say, to those who might by that standard be found to be the general substitutes in the supposed death of a child dying in the last minutes of testatrix’s life and at an appreciable interval of time before the death of testatrix. Takers at that time, those in general to whom the law would then pass her property, rather than blood relatives, were intended by testatrix by this phrase “ heirs at law.”
Although it is immaterial' — or at least not decisive* — it is interesting to note that when George died in 1928 his estate consisted wholly of personalty; so that had he died intestate, the petitioner, as his widow, would have taken one-third, and the three children the rest. No change in that legal situation was made in 1930. Incidentally, this testatrix left only fifty dollars in realty, and nearly three hundred thousand dollars in personalty; so that practically the result is the same under the rule applied above to the residual eighth now under consideration.
Enter a decree in accord with this decision holding that the widow of George Merritt Ward, deceased, upon the death of this testatrix became entitled to one-third of one-eighth of the residue of this testatrix’s estate; and that his three children now living likewise became entitled to share equally the two-thirds thereof remaining.