186 A.D. 738 | N.Y. App. Div. | 1919
The testator died on January 6, 1910. The provisions of the will of which a construction is sought are the following: The testator devised and bequeathed two-thirds of his residuary estate to his executors in trust to pay to his wife all the net income thereof during her life, and upon her death to be divided as follows:
“ 1. A one undivided one-half part of said portion of my estate so held in trust, I give, devise and bequeath unto my brother John Joseph Petry, provided he survives my wife, * * * and in the event of the death of said John Joseph Petry prior to the decease of my wife, then I give, devise and bequeath said one undivided one-half part of said portion of my estate so held in trust, unto the issue of my brother John Joseph Petry, absolutely and forever.
“ 2. A one undivided one-half part of said portion of my estate so held in trust, I give, devise and bequeath unto the issue of my deceased brother John Petry absolutely and forever.”
John Joseph Petry survived the life beneficiary and he, therefore, took one-half of the trust estate. Eight children and nine grandchildren of John Petry were living at the time of the testator’s death and one grandchild was born after the death of the testator but before the death of the life beneficiary. The two constructions which are respectively urged upon the court are, first, that by the use of the word “ issue ” the testator intended to give that portion of the remainder to the children of his deceased brother John, whereby each would receive one-eighth thereof; second, that by the use of the word “ issue ” the testator intended to give that portion of the remainder to the children and grandchildren per capita, whereby each would receive oné-eighteenth thereof.
The learned justice at Special Term decided in accordance with the latter rule and his decision is supported by many authorities in this State. After citing many English cases, Judge Andrews, writing for a unanimous court, said: “ It is
This was in terms reaffirmed in the case of Schmidt v. Jewett (195 N. Y. 486, 491). And it is pointed out that where any other construction has been given to the word “ issue ” and it has been held to mean “ children ” or given a stirpital signification, there has been something in the context of the will that showed the latter meaning was necessary to carry into effect the intention of the testator.
In a very recent case on this subject Judge Cardozo, writing for the Court of Appeals, said in Matter of Farmers’ Loan & Trust Co. (213 N. Y. 168, 173): “ The presumption in this State favors a per capita distribution (Schmidt v. Jewett, supra; Bisson v. West Shore R. R. Co., 143 N. Y. 125), but the presumption _yields to ‘ a very faint glimpse of a different intention ’ (Ferrer v. Pyne, 81 N. Y. 281, 284; Vincent v. Newhouse, 83 N. Y. 505, 513; Bisson v. West Shore R. R. Co., supra).”
In my opinion there is nothing in the context of this will upon which we can predicate an intention to give to the word “ issue ” any other meaning than that it is said to have fixed upon it by the decisions of the courts. In disposing of the other half of this particular trust estate, the testator provided that upon the death of the life beneficiary it should go to his brother John Joseph, if he should survive such beneficiary, but if he should predecease her, then it was devised and bequeathed “ unto the issue of my brother John Joseph Petry, absolutely and forever,” using the identical language that he used in the devise and bequest to the issue of his deceased brother John.
In a prior clause of the will the testator established another trust in one-third of his residuary estate, making his wife the life beneficiary, and after her death making his brother Frank A. Petry the life beneficiary of the trust, and on his death the will provides that “ the said trust is to cease and
It is generally admitted by judges who have, felt compelled to enforce this rule of construction that by so doing they have done violence to the real intention of the testator.
In Soper v. Brown (supra) Judge Andrews, after enunciating the rule above quoted, said: “ It might well be doubted whether a testator actually contemplated that the children of a living parent would take an equal interest with the parent under the word ‘ issue ’ or that the issue of a deceased child should not take by representation the share of its parent.”
In Matter of Farmers’ Loan & Trust Co. (supra) the court said, citing authorities: “The presumption yields to ‘a very
In Matter of Union Trust Co. (170 App. Div. 176; order modified, 219 N. Y. 537, to extend to all of the class with the appellant, and, as modified, affirmed, 220 N. Y. 657) this court, in modifying a decree of the Surrogate’s Court which had applied the rule that a distribution was to be made per capita, among the children and grandchildren of the deceased, in an opinion by Presiding Justice Ingraham said: “ As before stated, the controlling intention all through this will is equality. And this equality is not taking all the descendants of the daughter as a class, no matter what their degree of relationship should be to the testator, but equality among the children of his daughter, leaving their descendants to take the share of the parent dying before the death of the life beneficiary. It certainly would not be equality to give seven shares to one granddaughter having six children and one share to a granddaughter having no children, and such a construction would seem to defeat what is to me the controlling intention as expressed in this will. It may be that in this construction of the will an intention to confine this distribution per stirpes rather than per capita has gone beyond any reported case, but after examination of a great many wills I am clearly of the opinion that to give to the word‘ issue ’ a construction that would include all descendants, whether their parents were living or not., has resulted in a distribution of estates which has really been contrary to the testator’s intention and which has really worked great injustice among a testator’s descendants; and so I think, in construing such a will, that equality means, not equality of all descendants, but equality in the branches into which the person’s family' are naturally divided.”
Because of the feeling that the rule that issue means all descendants, and that where used in a gift by will or deed they all take per capita, grandchildren taking equally with their living parents, does not effectuate the intention of the testator, the courts of this State have seized upon very slight indicia of a stirpital meaning and held the rule did not apply,
First. The word “ issue ” when used in a conveyance or devise of real• estate was synonymous with “heirs of the body ” and created an estate in tail. In order to render the entail effective it was necessary that it should comprehend all the descendants in the line to the remotest degree. The estate, however, did not devolve on all simultaneously but successively. While it was held that “ issue ” prima facie was equivalent to “ heirs of the body ” it was more easily restricted by the context, and the use of words of distribution, as for instance the adding of the words “ share and share alike,” would show an intention not to entail the estate, as a distribution would destroy the entail. Therefore, the rule was stated to be that the word “ issue ” unless controlled by the context embraced descendants of every degree whensoever existent. (See 2 Jarman Wills [6th Eng. ed.], 1590.) If the word “ issue ” was given the limited meaning of children then the children would take an absolute fee, and the estate would not be entailed. So far as its application to deeds of real estate or devises is concerned the comprehensive meaning which would establish an entail was favored.
Second. A bequest to the issue of a man was a bequest to a class. All those persons living at the time of the taking effect of the bequest who were within the designated class took equally. If the word “ issue ” were given the limited meaning of children, then all the children living at that time
In the opinion in Freeman v. Parsley (supra) Lord Lough-borough said: “ When you put the question, whether he meant all these grandchildren should take with their parents, I think, he would say, he did not; yet if he was asked the other way, if it should go to the survivor, while there was a descendant, I am equally clear, he would not have given it to the sxirvivor.” This was the alternative, and he gave that construction which would allow the grandchildren, being children of a deceased child, to take rather than that which would disinherit them.
These two rules, one of which has reference to the word “ issue ” in a devise where it would create an estate in tail and where the same word when used hi a bequest would confer absolute ownership in all living descendants, explains the comment of Lord Thurlow in Knight v. Ellis, above cited, for he said in the case of real estate A would take for the purpose of transmitting the property through him to his issue, and he was, therefore, considered as taking an estate tail which would descend to his issue. An estate in chattels
Our courts have adopted these rules for the construction of instruments of gift where the word “ issue ” is used, although the reason that caused the English courts to adopt them does not obtain in the laws of this State. Estates tail were favored by the English law. They were abolished in this State. Under our Statute of Descent and Distribution, if there are lineal descendants of equal degree of consanguinity to the intestate the real estate descends to them in equal parts; that is, per capita. If any of the descendants be living and any be dead, leaving issue living, so that there are lineal descendants in unequal degrees, “ each living descendant shall inherit such share as would have descended to him had all the descendants in the same degree of consanguinity who shall have died leaving issue been living; and so that issue of the descendants who shall have died shall respectively take the shares which their ancestors would have received; ” that is, per stirpes. (Decedent Estate Law, §§ 82, 83.) While in the distribution of personal estate, the same rules apply to the distribution among lineal descendants. . (Id. § 98, subds. 1, 4.)
The children of an ancestor and the grandchildren, being children of a deceased child, do take under- our law. The Statutes of Descent and Distribution both recognize the right of descendants of unequal degrees to take per stirpes. It is not necessary to allow the living children of living parents to take in order that living children of deceased parents may not be disinherited. Therefore, the reason for the rule having ceased, or rather not' having existed in this State since 1782, when our first Statute of Descent (Laws of 1782, chap. 2; Laws of 1786, chap. 12) and our first Statute of Distribution (Laws of 1774, chap. 11; 5 Colonial Laws of N. Y. [Comp. Stat. Rev. Comm.] 614, chap. 1649; Const. 1777, art. 35; Laws of 1787, chap. 38) were enacted and in force, the rule should be abrogated. “ The law favors that construction of a will which will make a distribution as nearly conformed to the general rule of inheritance as the language will permit.” (Rivenett v. Bourquin, 53 Mich.
Clarke, P. J., Laughlin, Sheaen and Merrell, JJ., concurred.
Judgment and order affirmed, with costs to all parties filing briefs herein payable out of the portion of the estate devised and bequeathed to the issue of John Retry. :