93 N.Y. 295 | NY | 1883
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *297 The testator gave to each of his six daughters a life estate in one-tenth part of his estate, real and personal, with remainder over to their respective children, and the question now presented is whether this remainder was intended to vest in all the children of each daughter, or whether it was contingent upon such children surviving their mother, so that the issue of a son of one of the testator's daughters, who died *299 before his mother, were cut off from all participation in the remainder limited upon her life estate.
The seventh clause of the testator's will, upon which this question arises, contains language capable of the construction that the remainder was contingent upon the children surviving their mother. The language is, "And upon the death of any or either of my said daughters, I give, devise and bequeath unto such child or children as my said daughter shall have or leaveliving at her decease, and to the heirs and assigns of suchchild or children, as tenants in common, one part or share of my said estate, that is to say, the children of my said daughters to have the part or share whereof the mother received the rent and income during her life."
If, however, this language is capable of any construction which would permit the issue of the deceased son to participate in the remainder limited upon his mother's life estate, that construction should, on well-settled principles, be adopted in preference to one which should exclude them. (Scott v.Guernsey,
There are several peculiarities in the form of the disposition of the remainder, which lead us to the conclusion that its true meaning is that the remainder limited upon the life estate of each daughter, should be vested in all the children of such daughter, so that upon the decease of any of such children, leaving issue, such issue would succeed to the interest of the parent in such remainder. If the intention of the testator had been to admit to participation in such remainder only such of the children of each of his daughters as should survive their mother, that intention would have been clearly expressed by omitting much of the language used, and leaving to stand only the words, "unto such child or children as my said daughters, so dying, shall leave living at their decease." But instead of leaving these simple words, the testator inserted, first, the words "have or," so as to make the sentence read unto such child or children as my said daughters, so dying, shall have or leave living at their decease; second, he adds the explanatory words, "that is to say,the children of my said *300 daughters to have the part or share whereof their mother received the rent and income during her life." This clause would be quite controlling had the language been that the children of said daughters should have the part of which the income was given to the mother during her life, instead of whereof their motherreceived the income. For in this explanatory clause the remainder is given to all the children of each daughter, and no intention is manifested of restricting the gift to such of the children as should survive their mother, or of making the gift contingent upon such survivorship. Taking this explanatory clause in connection with the principal sentence giving the remainder "to such child or children as my said daughters, so dying, shallhave or leave," etc., we think it discloses that the testator was endeavoring to express the idea that after carving out of each of the parts a life estate to each daughter, the whole remainder should vest in the children of the daughter entitled to the life estate. This would, of course, be a vested remainder which would vest in each child as soon as born, subject only to open to let in after-born children, and descendible to the heirs of any of said children who might die before their mother.
It is not incumbent upon the respondents to show that this is the necessary construction of the will. It is sufficient to show that it is reasonably capable of such construction, and although it may be equally capable of the construction claimed by the appellants, that construction should be rejected under the rule before referred to, as laid down in Scott v. Guernsey andLow v. Harmony, and kindred cases.
There are several considerations which confirm us in the view that the construction claimed by the respondents is the correct one. It is not reasonable to impute to the testator the intention to exclude wholly from the inheritance, the descendants of either of his daughters, a result which, upon the construction claimed by the appellants, would necessarily follow should such daughter leave her surviving no living child, but only the descendants of a deceased child or children, and in this point of view the words "and to the heirs and assigns of *301
such child or children forever," have some significance. In Den
v. Manners (
The order should be affirmed, with costs.
All concur, except ANDREWS, J., absent.
Order affirmed.