156 A.D. 22 | N.Y. App. Div. | 1913
The determination of this case involves the construction of the will of Charles Wilson. Charles Wilson died October 29, 1882. He left a widow, Lucy J. Wilson, who died April 2, 1886. He left two children, a son, James E. Wilson, and a daughter, Kate Cornell Wilsón. At the date of testator’s death James E. Wilson, his son, was married to the defendant Arline A. Wilson, and' he had living one son, Charles E. Wilson, at that time about eight years old. He never had any other children. Charles E. Wilson died on April 12, 1894, at which time he was not quite twenty years of age. He died intestate, unmarried and without issue. James E. Wilson, his father and the son of testator, died April 29, 1909, leaving a will by which he devised all of his estate to his widow, the defendant Arline A. Wilson. Testator’s daughter, Kate Cornell Wilson, was about sixteen or seventeen years of age at the date of her father’s death. On February 5, 1891, she married the plaintiff, William A. Overton. She never had any children. She died April 18, 1901. She devised all her estate to her husband, the plaintiff.
This action is brought for the partition of real property of which Charles Wilson died seized. The court at Special Term held that as to the ultimate estate in remainder he died intestate, and that the same descended one-half to his son, James E. Wilson, who devised the same to his wife, the defendant Arline A. Wilson, and the other to testator’s daughter, Kate Cornell Wilson,, who devised the same to her husband, the plaintiff. The judgment was to the effect that the plaintiff and Arline A. Wilson were seized as tenants in common each of an undivided one-half of. such real property. We think the judgment is correct and that it should be affirmed.
By the 8th clause of his will Charles Wilson devised all the rest, residue and remainder of his estate', real and personal, to his executors in trust for a term measured by the life of his
Let us consider, first, the one-half of the estate in which Kate Cornell Wilson had the beneficial interest during her life, and see what becomes of the remainder in that portion of the estate. If we suppose that: instead of dividing the estate into two parts after his wife’s death he had devised the whole to his executors in trust for a term to be measured by his daughter’s life,. the income to be paid to her, and then a clause had followed to the effect that upon her death said estate should go to her issue in the same manner as though she had died intestate, there would be no room for argument that as to this estate in remainder, inasmuch as Kate Cornell Wilson never had issue and there is no gift of the remainder over in default of issue, the testator died intestate, and that one-half óf his estate passed by descent to his daughter, and the other half to his son, being vested in interest in them at Ins death, although not then vested in possession. But except that a fractional part,
As to the one-half part of the estate which was given to the executor in trust for a term measured by the life of the son and in which he had the beneficial interest, there is more difficulty, but we have reached the conclusion that as to the ultimate remainder in this portion of the estate testator also died intestate.
Again, let us read the 10th clause of the will as relating to the son alone: “Upon the death of my son the one-half part of my estate, real and personal, of which he had the beneficial interest during his life, shall go to his issue in the same manner as though such half part had belonged to my son absolutely and he had died intestate.” Upon the death of testator there was in' being ■ a person answering the description of “issue” of his son, namely, his grandson, Charles E. Wilson. If he had been expressly named in the will or specificially described, I think clearly that the remainder would have vested in him, because there was a person in being who would have an immediate right to the possession of the property on the determination of the intermediate or precedent estate. (Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], §40.)' But this grandson'was not expressly named nor specificially described. He was referred to as one of a class, namely, the issue of testator’s son. Clearly the testator did not intend to limit the recipients of his bounty to those children of his son or daughter who might be living at the time of his death. In this respect the devise in this will is clearly distinguishable from the devise construed by us in the case of Staples v. Mead (152 App. Div. 745) and relied upon by appel
But even if the estate in remainder as to one-half of the real property of which testator died seized might be deemed vested at testator’s death in his grandson, Charles E. Wilson, it was a defeasible estate, and by his death during the lifetime of his father was defeated. As we have before pointed out, the residuary clause must be construed as though it read, “ Upon the death of my son the one-half part of my estate, real and personal; of which he had the beneficial interest during his life, shall go to his issue in the same manner as though such half part had belonged to my son absolutely and he had died intestate.” Force must be given to the words “in the same manner.”' The use of these words necessarily conveys the idea of survivorship of the parent by the issue. The words are not “in the same shaires and proportions,” in which case it might be referred to the fractional parts of the estate which each
The judgment should be affirmed, with costs.
Thomas, Carr, Rich and'Stapleton, JJ., concurred.
Judgment affirmed, with costs.