88 N.J. Eq. 513 | New York Court of Chancery | 1918
This bill is filed by the executors of William Taylor, deceased, to obtain a construction of the fifth item of the will of Joseph Taylor, the father of William, which reads as follows:
"Item ó. I order and it is my will that my personal estate be sold as soon after my decease as can conveniently be done and my real estate except what I have heretofore bequeathed within one year after my decease and the proceeds together with all my estate except what I have otherwise Sequeathed and one hundred dollars to him (my Executor) for settling my estate and no more to be equally divided among my children hereafter named, viz.: Peter M. Taylor, William Taylor, George W. Taylor, and Matilda Green (wife of Henry Green) share and share alike should any of my children die without issue then in that case the amount of property they get from my estate to revert back to my other-children if living and if not living to their children if they have any.”
“Subject to rules, any person claiming a right cognizable in a court of equity, under a deed, will, or other written instrument, may apply for the determination of any question of construction thereof, in so far as the same affects such right, and for a declaration of the rights of the ■persons interested.”
The defendants, however, are clearly within the purview of the act, according to a recent construction placed upon it by the chancellor In re Ungaro's Will (ante p. 25). Their claim to the legacy is of a right cognizable in a court of equity, and having admitted the allegations of the bill and joined in the prayer for the construction of the will, thereby submitting themselves and the subject-matter to the jurisdiction of the court, the mooted question will be decided as on their behalf, and they will be bound by the decree.
The estate bequeathed by the residuary clause above quoted, vested in the four children of the testator therein named absolutely at his death, and the words, “should' any of my children die without issue'-' are to be construed as meaning death before the testator, and in the event of the death of any child before that period without issue, then the remaining children are to take the share by way of substitution. This rule of construction is laid down by text-writers and has been adopted and applied by the courts of this state in cases where the language was substantially the same as in the will under consideration. Baldwin v. Taylor, 37 N. J. Eq. 78; Denise v. Denise, 37 N. J. Eq. 163; Barrell v. Barrell, 38 N. J. Eq. 60; affirmed, 39 N. J. Eq. 603. The point is definitely settled by these authorities, and the opinions are so explicit and lucid as to dissipate all doubt the litigants-ever entertained as to their respective rights.
A decree will be entered declaring that the defendants are not entitled to the legacy and have no claim therefor against the complainants. No costs.