17 N.Y.S. 676 | N.Y. Sup. Ct. | 1892
This proceeding was instituted before the surrogate of Kings •county to compel the surviving executrix and trustee under the last will and testament of John H. Seebeck, deceased, to pay over to Anna M. Tienken, individually, or to her and John S. Gage, as executors of Henry M. Tienken, •deceased, the surplus income in the hands of Anna Seebeck, as such trustee, which would have been payable to Henry M. Tienken if living. JohnH. Seebeck died, leaving a last will and testament, and a codicil thereto, which were proved and admitted to probate by the surrogate of Kings county; and the executors and trustees named in the will, Anna Seebeck and Abraham Lott, both qualified and entered upon the discharge of their duties. Lott is
The question upon which the controversy depends is whether the children of Anna Tienken took the remainder of the income individually or as a class. By a reference to the third clause of the codicil, which modified the nineteenth clause of the last will and testament, it will be seen that it contains no words of devise or bequest either to Anna Tienken or her children. But the executors are directed to pay to Anna Tienken $600 annually out of the income, “and to pay over the balance thereof” to the children. The children are not named, and are only designated as “children;” and that has ever been considered sufficient to show that they took as a class, if no other portion of the will contravened such intention. Ferrer v. Pyne, 81 N. Y. 281. Again, the children are not numbered, and there is no direction to divide the balance of the income, and pay a certain portion to each child. Their individuality is sunk and obliterated, and they are consolidated into a class. The payment is to be made to the “children,” and there is nothing to show that the word was not employed in its ordinary, primary sense, and it does not, therefore, include grandchildren or legatees or devisees. Palmer v. Horn, 84 N. Y. 521; Shannon v. Pickell, (Sup.) 8 N. Y. Supp. 584. The executors are directed to pay over the balance to the children, and they can make payment to no other person, and, so long as there are children of Anna Tienken in existence during her life-time, they must receive the balance of income in equal shares. In the case of Magaw v. Field, 48 N. Y. 668, the language of the will was: “I give, devise, and. bequeath to the children of Van Brund Magaw, late of Gravesend, deceased, all that certain piece or