93 N.Y.S. 811 | N.Y. App. Div. | 1905
Lead Opinion
The question upon this appeal depends upon the construction to be given to the 6th clause of the will of George J. Foster. The, will was admitted to probate by the surrogate of New York county-on the 16th day of November, 1876. After making specific legacies and giving to his executors a power of sale of his real property the testator directed his executors to divide his residuary estate as follows: One-third of his residuary estate he gave and bequeathed to the children of his deceased sister Caroline, “ or such of them as shall be living at the time of my death and the issue then living of any deceased child of my said sister in equal shares as to each child of my said sister, the issue of such deceased child taking by representation the share which their parent would have taken if living.” Out of the other two-tliirds of the residuary estate the testator directed his executors “ first, to make or set apart a separate investment upon good and lawful security of the sum of Fifty thousand dollars to be held by them upon trust to apply the entire net income thereof to the sole and separate use of Mrs. Eliza R. Foster, the widow of my deceased brother Samuel H. Foster, during her life to be paid quarterly as near as conveniently may be — and secondly to set apart the further sum of Twenty-five thousand dollars which is to be added to the share hereinafter directed to be held in trust for the use of my niece Mrs. Margaret Beeckman.” The residue of the said two-thirds of his residuary estate the testator directed his executors to divide into as many equal shares as there should be
By the: 7th clause -of his will the testator left the shares of the residue of the two-thirds of his residuary estate' set apart for the other children of his brother Samuel H. Foster who should survive him, to his 'executors in trust, to apply the income of the respective shares to the use of the several children of his -said brother, to whom respectively the same shall have been set apart during their respective lives, and upon the .death of each of said children his share so, set apart to go.and be paid or transferred to his issue, and in default of issue, to liis next of kin in such proportions as they would.severally be entitled to- under the laws of the State of New York upon distribution of personal estate belonging to him Upon his dying intestate;
By the 8th clause of his will the testator provides that the shares that should be set .apart and designated for the issue óf any deceased children of his/said brother should be held in trust by bis executors for such issue and ..the whole net income thereof applied "to the usé of such issue, “(descendants of children taking only their parent’s share, by representation) during the lives of the said Eliza R. , Foster and Margaret Beeckman and upon the death of the longest
And by the 9th clause of the. will the testator provided that upon the death of. the said Eliza R. Foster the said sum of $50,000 held in trust for her shall be apportioned equally among and added to .the several shares of the other portion of the said two-thirds of bis residuary estate, and remain in trust to be otherwise disposed of and paid over, precisely as if it had originally formed a part of the said shares respectively.
At the time of the death of the testator there were living ten children of his brother Samuel H. Foster, so that on the death of Eliza R. Foster the trustees under this will held in trust for Margaret Beeckman, who was also one of the children of Samuel JL Foster, the sum of $25,000, and also one-tenth of the sum of $50,000 that was held in trust for Eliza R. Foster during her life, and also one-tenth of the residuary estate of the testator under the 4th clause of his will, which amounted to the sum of $1,052.05.
Margaret Beeckman died on the 19th of April, 1904, leaving her surviving four children. No child of Mrs. Beeckman died during her life leaving issue, but these four children had living at the. time of Mrs. Beeckman’s death eight children who were grand- ' children of Mrs. Beeckman, their parents still living. Mrs. Beeckman also left a will which was admitted to probate by the surrogate of the county of New York, and the first question is whether by this will she exercised the power of appointment given by the 6th clause of the will of George James Foster. The surrogate held that Mrs. Beeckman did not attempt by her will to exercise tfye power of appointment contained in the 6th clause of the will of George J. Foster, and in that we concur. By this will Mrs. Beeckman gave all her estate, real and personal, to her executors in trust, to pay the rents, income and profits equally to each of her children who should survive her, share and- share alike, during the term of his or her natural life, with remainder over to such person as her said children should appoint by a last will and testament. The power given to Mrs. Beeckman by the 6th clause of the will in question was to “ alter and regulate at her discretion the proportions in which the same shall be distributed among the persons who
. The remaining question is as to the persons intended to be designated by" this clause of the will as the issue of Margaret Beeckman.. The testator used the word. “ issue ” in several clausés of the will. Thus, in" the 2d clause, in, providing for the one-third of Iris' residuary éstate- which was bequeathed to the children of- Ins deceased sister Caroline, he gives and bequeaths the one-third of his residuary" estate to the children of his deceased sister “ and . the issue then living of any deceased child,” the issue, of' such deceased child taking by representation the share that their parent would have taken if living; "thus providing that the issue shall take by .way' of representation, so that.tihe share of a deceased -child would go to the issue of such deceased child. By the 4th clause of the will the word is used in the same connection, evidently intending 'to substitute the issue óf a deceased nephew in place of a nephew dying before." the testator. By the 7th clause of'‘the will ■the word is used' in the same connection, the issue of a nephew or niece to take the share set- apart for the nephew, or niece dying. There would thus seem to be an express- intention of the testator to substitute for a beneficiary in whose favor a life estate was created the issue of such beneficiary upon the beneficiary’s death, and in each case the share of the parent is,to be' divided equally, share and share alike, among the parent’s issue, disclosing, as I view it, an intent that the issue should take by way of ^representation, so that thére should be an. equal distribution of a share of a deceased beneficiary, for whose benefit a life estate is established, among those succeeding to the right of the beneficiary for life.- Such equal distribution ^could o.nly take place if .the word “issue” was used as meaning children, the. issue of a- deceased child to- take its -parent’s share. • ■ ■
In Drake v. Drake (134 N. Y. 220) the testator, gave certain real property to an adopted ■ daughter, Mary Hopeton Drake, for life, with a power to appoint by her last will and testament, to either of his three sisters, or to all or any or either of .the lawful issue of his three sisters, from and after the death of the life tenant, and in sucli shares and proportions as she might think proper. 1 His sisters died before the life tenant, some of them leaving children and grandchildren, and the life tenant attempted to execute the power of appointment in favor of certain grandchildren of the testator’s sisters while the parents of these grandchildren were alive. The court held that the meaning of the word “ issue ” in this will was synonymous with descendants and that the appointment was valid ; but in this case it will be noticed that the testator intended to give .the right to appoint during the lives of his sisters to the sisters or the sisters’ children, thus clearly indicating that there was no idea of equal distribution or representation in his mind ; that it was not intended that the child should stand in the place of'a deceased parent, because the children of his sisters were to have a right to receive the estate in case of an appointment in their favor during
In Palmer v. Horn (84 N. Y. 516) Judge Earl speaks of the word “ issue ” as an ambiguous term.' He says that it may mean descendants generally or merely children, and whether in a will it shall be held to mean the one or the other, depends upon the intention of the testator as derived from the context or the entire will, or such ^extrinsic circumstances .as can be considered.
In Soper v. Brown (136 N. Y. 244) there was a bequest to the testator’s daughter for life, and upon her death the ¡iroperty was to go “ in fee simple as tenants in common to the lawful issue of my said daughter Eliza;, if -more than one, share and share alike:” 'Eliza died having had two children who died before her. but after-the testator.. The surviving descendants' of Eliza were, two ■ children of a deceased son of Eliza, three children of a deceased daughter-of Eliza, and three children' of a deceased child of the deceased-daughter of Eliza. Thus, the descendants of Eliza living at 'her death were five grandchildren and three great grandchildren. ' It was claimed that “ issue ” was here intended as* synonymous with children, and that the grandchildren, although■ their parents were dead, were not entitled to share in the estate* but the court held' that' issue included grandchildren as well as children.
In Chwatal v. Schreiner (148 N. Y. 683) the word “ issue ” was held to mean children rather than remote descendants, because, the testator in one clause of the will had given a definition of the word ■ as meaning that the issue were to take by way of representation the-' estate of the respective parents, and that the testator having thus disclosed his- intention,, the word “ issue ” in the other part of the will would be given a similar meaning. Here, in the second clause of the will the testator expressly provides that .'the issue of a child ' -of his deceased sister was to take by way of representation the shares which their parents would have taken if living. Here he had in ■
The conclusion at which we have arrived results in a modification of the decree of the surrogate by providing that this fund held by the trustee be divided equally among Margaret’s children, and as so modified the decree is affirmed, with costs to the executors and the appellants payable out of the estate.
Yan Bbunt, P. J., and McLaughlin, J., concurred; Patteeson and Laughlin, JJ., dissented.
Dissenting Opinion
The decision of this appeal depends upon the meaning and legal effect of the word “ issue,”'as used in the 6th clause or paragraph of the will of the late George J. Foster, which will was duly admitted to probate in the year 1876 in the Surrogate’s Court of the county of Few York. • The appeal is taken from a decree of one of the surrogates of that county, passing the accounts of a substituted trustee of a trust created by that will and making distribution of the trust fund, which consisted of a sum of money held by such trustee under such 6th clause of the will primarily for the benefit of a niéee of the testator. It became necessary for the surrogate to construe the 6th clause. The principal of the fund in the hands of the trustee was $30,000, and it was composed of a sum of $5,000, being one-tenth of $50,000, referred to in the 3d clause of the will, and an additional amount of $25,000, also referred to in that 3d clause and in the 6th clause. The latter clause reads as follows:
■ The surrogate held that the word “issue,” as it appears.in the 6th'clause, related to both the children and grandchildren bf ; Margaret Beeckman, and.indicated the intention of the testator-that children and grandchildren should take per capita. Mrs. Beeckman made a will, which was ■ duly admitted to probate, but .she did not exercise the power of altering and regulating, at her discretion,, the proportions in which the trust fund should be distributed among the persons entitled thereto. She left her surviving four children and eight grandchildren. The plain cjuestion, therefore, is whether the word “issue” is to be construed as limited to children, or', embraces' the grandchildren also. ' ' '
It is now the settled law of this State that the word “ issue,” contained in a domestic will, has a fixed, primary legal signification,, and that it.includes descendants and not merely children. In Palmer v. Horn (84 N. Y. 516) the court said that “the Word ‘issue” is an ambiguous term.. It' may mean descendants generally ór merely children ; and whether in a will it shall be held to mean the -one or the other depends upon the inteiition'of the» testator as derived from 'the context or-the entire will, or such extrinsic circumstances as can be considered.” In Drake v. Drake (134 N. Y. 220) it is said : “ In its .general sense, unconfined by any indication or intention to the contrary, the word issue’ includes in its meaning all descendants. * * * It may, however, when such appears to have been
The rule of construction was again anhotinced by the Coin-t ,of Appeals in the case of New York Life Ins. & Trust Co. v. Viele (161 N. Y. 19, 20), where it is said : “ The words ‘ lawful issue,’ when tised in a domestic will, primarily and generally mean descendants. (Citing cases.) Where there is nothing to the contrary to be found in the context of the instrument or in extraneous facts proper to be considered, that is the sense in which they are presumed to be used in a will. The real question in this case is whether the testatrix used . tliem in'that sense or in some other sense.' In giving construction to the words used by the testatrix in a domestic will, we (cannot assume, without the clearest evidence, that she used the words ‘ lawful issue ’ in'the sense they might possibly-bear,” under the laws of a foreign, country in which she .died.
We must endeavor to ascertain whether the testator intended that the word “ issue ” in -the 6th clause of his will should have other than' its primary meaning. Only a slight indication of such intention gathered fi-qm other parts of the instrument would be required. (Palmer v. Horn, supra.) The record is barren of .evidence of extraneous facts or circumstances that would aid. in the inquiry. We know nothing of the family of Mrs. Beeckman at the titile of the testator’s death. All we are informed of is that she was his niece, the daughter of his deceased brother Samuel H. Foster.
Looking'into the will we find nothing to justify the conclusion that the word “issue”.in th'e 6th clause was used otherwise than in its legal sense. It is noticeable that provisions for the benefit of the other children and their issue of the--testator’s brother Samuel are entirely different from the provision made for Mrs. Beeckman and her issue. - After directing the payment of his debts and funeral expenses, the testator disposes of all the rest, residue and remainder of his estate. He bequeathes one part to the children of his deceased sister Caroline,- or to such of them as are living at the i • , time of his death, and to the issue living of any deceased child, in equal shares; -the issue of any such deceased child taking -by representation the share which the parent would have taken if living.
As said before,. We are unable to find anything hr this will which - . varies the primary meaning of the word “ issue,” and we conclude that it was the intention of the testator to allow all of the descendants of Mrs. Beeckman who come within that primary meaning to participate in the distribution of this trust fund.
The decree, of the surrogate should be affirmed, with costs.
• Laughlin,’ J., concurred. ■
l . Decree modified as directed in opinion,, and as modified affirmed, with costs to executors and appellants payable out of the estate.
