136 N.Y. 227 | NY | 1892
This appeal calls for the construction of the will of James Sullivan, who died in the year 1866. The testator provided that all his real estate should be deemed converted into personalty, and then proceeds to make certain specific devises and bequests to his wife and certain of his children, the validity of which are not in question. The residuary estate was devised and bequeathed to his executors in trust to invest and hold the same in equal shares and to apply the income thereof to the use of such of his children as should survive him "during the life of each of them severally, and upon the death of each of my said children, to pay over the capital of the share of such child so dying to his or her descendants, if any, equally to be divided between such descendants, if more than one, and if any of my said children should die without leaving any descendant, then to pay over the capital of such child's share to his or her surviving brothers and sisters." The testator left surviving him six children, and consequently the executors were required by the terms of the will to divide the residuary estate into six equal shares and to pay the income thereof to each of the children respectively. Three of these children have since died, two of them without descendants and the other leaving two children, who are parties to this action. No question seems to be presented by the record as to the disposition of the shares of the first two children *230
who died, but upon the death of the third child, Frances, in April, 1891, without descendants, the question arose whether her share devolved upon her three surviving brothers and sisters, or whether the two grandchildren of the testator above mentioned took such share of it as their parent would have taken if living. They are the children of Mary Ann Mullarky, one of the testator's daughters, who died in 1874. The courts below have held that the words "surviving brothers and sisters" include the children of a deceased sister, and that, therefore, the share in question should be paid over to the three surviving brothers and sisters of the deceased child, and to the two grandchildren of the testator, the latter to take the share which their parent would have been entitled to if living when the share was released from the trust. The three surviving children of the testator claim the whole share of Frances, and have appealed from the judgment. While it is true that courts favor a construction which will permit the children of a deceased child to take, rather than one which will exclude them (
Neither the language of the residuary clause nor any provision of the will is in any respect ambiguous. The testator *232 has succeeded so well in expressing his meaning and intention in clear and plain words that there is no occasion or necessity for construction, and the only function that courts can have in such a case is to enforce the will according to its terms.
The judgment should therefore be reversed and judgment entered for defendants construing the will in conformity with this opinion, costs of all the parties in all the courts to be paid out of the estate.
All concur.
Judgment accordingly.