126 N.J. Eq. 391 | N.J. Ct. of Ch. | 1939
The parties ask a construction of the residuary clause of the will of the late Sarah W. Marsh:
"All the rest, residue and remainder of my property, I give, devise and bequeath in equal shares to my children, Frances Edgar Hebbard, Alice M. Ollive, John C. March and Mary J. Thedford. In case any of said remaindermen are not living at the time of my death, the descendants of such person shall take the share to which he or she would be entitled if living. In case any of said remaindermen are not living at the time of my death and leave no descendants, the share to which such person would be entitled, if living, shall go to or for the benefit of his or her surviving sisters or brother or the descendants of those who may have died." *392
Between the date of the will and the death of testatrix, a period of twelve years, two events happened which affect the succession to her estate. Her son John died, and his only daughter Josephine married Mr. Kaercher and bore two children. So the question is presented whether the daughter is entitled to the whole of the share of the residue which was primarily given to her father, or whether the share must be divided in three equal parts among Mrs. Kaercher and her children. The case turns on the sentence, "In case any of said remaindermen are not living at the time of my death, the descendants of such person shall take the share to which he or she would be entitled if living." The parties agree that the word "remaindermen" refers to the residuary legatees, that is, Mr. Marsh and the other three children of testatrix. Mrs. Kaercher asks the court to narrow the meaning of "descendants" so as to exclude Mr. Marsh's grandchildren. The guardian argues that it should be given its ordinary import.
There is no doubt of the usual meaning of the word "descendants." It signifies children, grandchildren and other issue to the remotest degree. While there appears to be no New Jersey case in which this word has been defined, we have numerous decisions on the similar term "issue."
"The word `issue' in its ordinary legal meaning embraces grandchildren and remoter descendants, as well as children. When used in deeds, it has been adjudged to have a technical sense to that effect. Weehawken Ferry Co. v. Sisson,
Vice-Chancellor Leaming in Security Trust Co. v. Lovett,
Counsel for Mrs. Kaercher cites several cases in which "descendants" has been construed to mean children, but in each of them, the will contained something to justify such a restricted meaning. For instance, in Snyder v. Greendale Land Co.
(Ind.), 91 N.E. Rep. 819, there was a devise to testator's children "and the descendants of such as may be dead, they to receive the parts respectively which their parents would have received if alive." The court decided that since parent means father or mother, the correlative term should be interpreted children. The same rule, applied to issue, is well illustrated in our reports. Coyle v. Coyle,
Over objection and subject to a motion to strike, the draftsman of the will was permitted to testify to his instructions from testatrix in order to prove that she intended the substitutionary gift to go to her grandchildren, and that the *394
word "descendants" was not suggested by her. While his testimony was too uncertain to affect the outcome of the case, it will be struck because testimony of this character is incompetent.Hudson Trust Co. v. Horwood,
Mrs. Kaercher and her two children each takes one-third of the part of the estate which is in controversy.