96 N.Y.S. 1014 | N.Y. App. Div. | 1905
William Wall, a resident óf this State, died on the 20th day óf April, 1872, leaving a last will and testament which was duly admitted to probate. He was survived by eight'children, among them -being
The daughter Celia, subsequently known as Mary Cecelia de Goicouria, died on the 18th day of August, 1904, leaving her surviving her two daughters, the respondents Bosalie W. de Goicouria Cameron and Alice W. de Goicouria, and a grandchild, the appellant, Bosalie de Goicouria Cameron, the only child of the said Bosalie W. de Goicouria Cameron. Tlie respondents, the two daughters of Mrs. de Goicouria, claim, and in this they are sustained by the judgment from which this appeal is taken, that they az-e entitled to have-the principal divided equally between them, each taking one-lzalf, while the appellant, Bosalie de Goicouria Cameron, on the other hand, contends that she comes within the “ lawful issue ” contemplated by the will of William Wall, and should participate equally with her mother and aunt, each takizig one-third of the same. The only question involved is the legal interpretation of the phrase “ lawful issue,” as used by the testator; is it to be taken in its technical legal sense, as embracing descendants, or is it to have a limited sense, and be confined to the children of the life tenant ?
We look to the language of the wifi in vain for any indication of the testator’s undez’standing of the phrase “ lawful issue; ” he uses the same expression in relation to each of the eight trust estates, and
While it may be that this language was not essential to the determination of the question then before the court, a careful examination of the cases which paust be regarded as controlling here shows that it is in harmony with the law as understood and administered in this State, and it is too late, if it were desirable, to change the meaning of words having a well-defined legal interpretation. In Palmer v. Horn (84 N. Y. 516), which has gone perhaps as far ■ as any case in this State to limit the phrase “ lawful issue” as used in wills, the meaning of the word “ issue ” was ■ clearly restricted to children by the terms of the will, as the terms “ issue ” and “ children ” were used synonymously. (Drake v. Drake, 134 N. Y. 220, 225.) And it was pointed out that whether it was to be understood as referring to children or to descendants must depend “ upon -the intention of the testator as derived from the context or the entire will, or such extrinsic circumstances as can be considered.” It was also suggested by the learned jurist writing in Palmer v. Horn (supra) that the word would be limited to children “ upon a slight indication in other jiarts of the will that such was the intention of the testator,” but an examination of the cases shows no instance in which the court has felt justified in construing the words in and of themselves as limiting a gift to the immediate children, and in the case at bar we are wholly unable to discover in the context, in the will as h whole, or in any of the circumstances surrounding the testator, anything to indicate that the words “ lawful issue ” were used in any other than their legal sense. It may be, as suggested, that if the testator had realized that his great-grandchild was to become the competitor of his grandchildren in the distribution of one of these trust estates, he would have used different language, but the trouble is that he has not done so, and the authority of this court is limited to the construction of the language used, in the light of the circumstances under which it was employed, and the judicially determined use of language cannot be changed to suit our conceptions of what would have been the testator’s intention if he had foreseen what has actually happened.
Bartlett and Hooker, JJ., concurred; Hirschberg, P. J., and Jenks, J., dissented;
Judgment, in so far as appealed from, réVersed and new trial granted, costs to abide the final award of costs.
3 Yes, 421.^ [Rep.