| NY | Feb 27, 1917
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *198
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *199 The intention of a testator as disclosed by his will and in the light of the circumstances surrounding *202 him at the time it was made should, so far as consistent with the rules of law, control the courts in construing it.
It is, as has been said so many times, the cardinal rule in the construction of wills that the intention of the testator should be ascertained if possible.
If the intention of the testator is ascertained with reasonable certainty and the provisions of the will are valid it is quite unnecessary to discuss the decisions made in other cases. (Cammann v. Bailey,
A careful examination and consideration of the language of the will before us is important to determine the testator's intention.
The testator at the time of making his will had other children than his son Abraham and his daughter Sarah, or at least he had had other children than those two. This appears from the small gifts in trust for two persons named whom he designates as "my sons-in-law" and which amount so given he directs his executors to place in two savings banks and pay the interest to said beneficiaries every six months. Whether he had more than the two children living does not appear, but it is very clear that the testator's chief objects of care and consideration were his son Abraham and the daughter Sarah. The will was probably drawn by a layman and perhaps by the testator himself. In any case the language is in many respects significant. In making the gifts to his sons-in-law he says: "I give and bequeath" — in providing two other specific legacies he says "I further give and bequeath" — and in making the gift to his son Abraham and his daughter Sarah, he says "I further give." In connection with the gift to his son and daughter of the use of his house, he adds, "For their mutual benefit," and then further adds, "Also all my household furniture to be equally divided between them but not sold and also all the residue of money in banks or elsewhere after paying the sums as herein directed." His *203 purpose apparently was not only to have the house retained by his son and daughter, but, by his direction that his furniture should not be sold, he evidences his desire to keep the house furnished, either for occupancy by them or to be rented to produce an income for their use. When he provides for the ultimate disposition of the amount given to his sons-in-law for their lives respectively instead of using in connection therewith the word "gift" or "bequest" he says, "After the decease of the above-named parties" (sons-in-law) the amount held for the benefit of one "shall be paid to the children of my son Abraham Pulis share and share alike," and the amount held for the benefit of the other "to the children of my daughter Sarah Powles share and share alike." He does not in terms give the fee of the real property to any one, but directs that the house shall after the death of the two children named be sold, and without words of gift he directs that the executors shall "divide the net proceeds of said sale one-half the amount between the children of my son Abraham Pulis and the other half thereof between the children of my daughter Sarah Powles."
The words used by the testator descriptive of persons are also significant. He speaks of his "sons-in-law," "children of my son Abraham," "children of my daughter Sarah," "my son Abraham and my daughter Sarah," "my two children Abraham and Sarah," "the oldest of my son and daughter's children," and further on in the will of his "grandson William." The testator's use of words is definite and clear. When he intended a "gift or bequest" to take effect at once he used words accordingly, and when he intended to make a gift by a mere division of particular property through his executors at a time he so stated, and that in clear and unmistakable words. He did not confuse children with grandchildren or great-grandchildren. In specifying among whom the division of the "net proceeds" of his house should be divided he used the word "children" in its primary and *204 ordinary sense. Such a use of the word is a designation of a class.
"The word `children,' in common parlance, does not include grandchildren, or any others than the immediate descendants in the first degree of the person named as the ancestor." (Palmer
v. Horn,
The primary purpose of the testator, as we have seen, was to make provision for his two children named. The division of the net proceeds of the house after the death of the son Abraham and the daughter Sarah was remote and secondary. When he made his will the children of his grandson Sylvester had not been born. It would have been a very simple matter for him had he desired it, to have provided that the descendants of a deceased child of either his son or daughter should take the same share that it or their parent would have taken if living. He did not so provide. The direction, authority and power given to the executors to sell the house took effect immediately upon the death of the testator's children. There was no vesting of title or interest in the children of the testator's son Abraham or daughter Sarah prior to that time, certainly not except upon the contingency of survivorship. Where final division and distribution is to be made among a class, the benefits of the will must be confined to those persons who come within the appropriate category at the date when the distribution or division is directed to be made. (Matter ofCrane,
There is no language in the will that is susceptible of a construction that will avoid the "divide and pay over" rule as is pointed out in the cases mentioned in the dissenting opinion inDickerson v. Sheehy (supra). If it appeared from the will that the testator intended to vest the *205 title to the house in the children of his son Abraham and daughter Sarah as of the date of his death it would, of course, be the duty of the court to carry out such intention and sustain the judgment appealed from, but it does not so appear from the will.
The order should be modified by directing that the one-half of the net proceeds of the sale in controversy and of the income thereon as provided in the order be divided in equal shares between the appellants and excluding the widow and children of Sylvester Pulis therefrom, and as so modified affirmed, with costs payable out of the fund.
HISCOCK, Ch. J., COLLIN and CUDDEBACK, JJ., concur; HOGAN, CARDOZO and POUND, JJ., dissent.
Ordered accordingly.