United States Trust Co. v. Tobias

4 N.Y.S. 211 | N.Y. Sup. Ct. | 1888

Patterson, J.

The only question argued upon the motion relates to the right of the great-grandchildren and great-great-grandchildren of the testatrix to share in that portion of the estate enjoyed by Selina Hendricks during her life, under the will. I cannot perceive that anything can be added to the arguments made at the bar on the motion to confirm the report of the referee, particularly after the admirable presentation of the case made by the counsel opposing the report, whose brief I have read with great interest. It seems to be conceded that the whole case turns upon Sibley v. Perry, 7 Ves. 522, being a controlling authority. There is nothing decided in the courts of this state which should make it so, nor do I perceive anything which entitles it to be regarded as such in this country, whatever may be the views of the English judges as to its having established a general rule of construction binding upon them. The word “issue, ” in its legal sense, is broad enough to cover “descendants,” and this is not denied by any respectable authority. Lord Eldon, in the case cited, while recognizing this view, considered that in the particular case it should be limited; but I can discover nothing in the will before me which would justify an assumption that it was the intention of the testatrix to confine her bounty to her children and grandchildren. What she meant, as I conceive, was to provide for her children, and, after the expiration of their particular estates, to extend her bounty to those who were her descendants in being at that time, in whatever degree they might be. Upon the whole case, I am not inclined to differ with the conclusions at which the referee has arrived. The report is confirmed.