156 N.Y.S. 112 | N.Y. App. Div. | 1915
Lead Opinion
Bridget Kane died the 11th of March, 1914, leaving a last will and testament which is here for construction. The will was executed on the 6th day of July, 1909. On that date there were living three sons and four daughters. Another son, Michael Kane, had died on December 13, 1903, prior to the execution of the will. The plaintiff and the defendant Rosemary Kane are daughters of said Michael Kane, who left no other issue.
There is a single question involved in this appeal, arising upon the construction of the 4th clause of Bridget Kane’s will. That clause, so far as is relevant, reads as follows: “ All the rest, residue and remainder of my property and estate, both real 'and personal and wheresoever situated, I divide into as many equal shares or portions as I may have children living at the time of my death and one of such shares or portions I give, devise and bequeath to each of my children surviving at the time of my death. * * * In case any of my children shall die before me, leaving lawful .issue surviving, then such issue shall take the share or portion the parent would have taken if living at the time of my death * * *. ”
The judgment appealed from denies to the children of Michael Kane the right to take under the will. With this conclusion I am not in accord.
The wording of the will is faulty and inaccurate. The two clauses quoted are contradictory of each other. There are two rules of interpretation which are to guide us in construing this will: (1) The intent of the testatrix is to govern the interpretation of the will when that intent be ascertained, and words may be transposed and the tense of a verb changed if necessary
That the children of Michael are included in this provision is undoubted, and in view of this fact and of the inaccuracy of expression found throughout the will, and of the presumption that the issue of the child that died before the making of the will should share equally with the issue of the children who should die thereafter, it seems fair that- the provision for the children who “shall die” before the death of the testatrix includes this plaintiff and her sister.
This exact phrase has been the subject of judicial construction in wills. In Matter of Chapman's Will (32 Beav. 382) the will recites in part: “that in case any of my nephews and nieces or great nephews and great nieces, shall die in my lifetime leaving any child or children who shall be living at my decease,” the child or children of such nephew or niece should take the share of its parent. It was there held that the issue of a child who had died before the making of the will was entitled to share. In the opinion, Sir John Romilly says, in part: “ Much stress cannot be placed on the words ‘ shall die in my lifetime; ’ it is vague. It is argued, that it means 'shall hereafter die,’ but I think the expression is constantly used in the sense ' shall be dead at the time of my death.’ ”
In Loring v. Thomas (1 Dr. & Sm. 497) the court held that the words “shall die” did not import future dying, but are equivalent to the words “ shall be dead ” or “ shall have died.”
The order and judgment should, therefore, be reversed, with costs, and the motion denied, with ten dollars costs.
Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Concurrence Opinion
I concur in the views expressed by Mr. Justice Smith, and vote for reversal. I am of opinion that the provisions of the will directing that the residuary estate be divided into as many shares or portions as the testator left children him surviving
The plaintiff and the defendant Rosemary Kane, who are the children of the testatrix’s son Michael, are, therefore, entitled to take the share which Michael would have taken had he survived the testatrix.
Ingraham, P. J., Clarke, Scott and Smith, JJ., concurred.
Judgment reversed, with costs, and motion denied, with ten dollars costs.