Pfender v. Depew ( 1910 )

Scott, J. :

This appeal presents the question which often recurs, and is frequently difficult to answer, whether or not the word “children” when used in a will should be construed in its primary sense dr in a more general and comprehensive sense as the equivalent of “issue” or “ descendants.” The question arises in an action for partition, and relates to the will of one Hannah Depew.

Joseph Depew, husband of Hannah, died on or about August 26, 1856, seized of certain real property in the city of Hew York. He left surviving his widow Hannah Depew, and sons and daughters. By his will he devised and bequeathed one-third of his estate to his widow Hannah Depew, absolutely, and gave her the income of the remaining two-thirds for her life with remainder over to his children, and the issue of such as should have predeceased him. Hannah Depew died on or about July 20, 1876. She left one married daughter, the plaintiff herein, two unmarried daughters, Laura A. and Hannah L. Depew, and several sons. She had also, several grandchildren of tender age, living at the time of her decease. Her will was dated December 31, 1874, and, after providing for the payment of her debts, made, the following disposition of her estate: “ Third. After the payment of my debts ánd liabilities I direct my executors of this will to hold and invest a different moiety, or one-half part, of all the rest and residue of my estate for the benefit of each of my two daughters Laura A. Depew and Hannah L. Depew, and to pay the interest, rents and income of the property so held án.d invested to the person for whose benefit it shall be invested once in six months,,.or oftener', during the natural life of the person for whose benefit that property shall be invested, provided she shall remain so long unmarried; and on her death or marriage the principal of the money and property above directed to be held and invested for her benefit is to be held and invested for the benefit of my other daughter above mentioned, in case she is' still living'and unmarried.

" Fourth. Upon the occurrence of the death or marriage of both of my said daughters above mentioned, I then direct that the jnincipal part of my said estate so directed to be invested for their benefit, or the survivor of them, be divided equally among my other children who may be surviving at the time, the child or children of any son or daughter who may have died. before such contingency taking the share to which the parent, if living,-would have been entitled.”

Laura A.. Depew never married, and died April 30,1903. Hannah L. Depew never' married and still survives. Since the death of Hannah Depew other grandchildren, as well as great-grandchildren have come into being, and the question to be determined is whether these great-grandchildren aré entitled to participate in the division of the estate when the trust estate shall terminate, and consequently whether their contingent interests must be provided for by the decree. ■

It is elementary law that as a general rule the words “ child ” or “ children ” when used in a will or other document will be taken to refer to issue or descendants of the first degree, and to exclude descendants of a more remote degree. (Low v. Harmony, 72 N. Y. 408; Palmer v. Horn, 84 id. 516.) The rule, however, is not inflexible, and there are many cases in which the word will be given a wider signification and read as standing in a collective sense for grandchildren or even more remote descendants. The subject was exhaustively treated in Prowitt v. Rodman (37 N. Y. 42), wherein the Court of Appeals, after a careful review of many authorities, laid down the rule “ that the term ‘ children ’ may include issue however remote, and will be held so to include whenever the reason of the thing demands it.” In Matter of Brown (93 N. Y. 295) the testator gave to each of his six daughters a life estate in one-tenth part of his estate, real and personal, with remainder over to their respective children, and the question presented was whether the remainder was intended to vest in all the children of each daughter, or whether it was contingent upon such children surviving their mother, so that issue of a son of one of testator’s daughters who died before his mother was to be cut off from all participation in the remainder limited upon- her life estate. The court found enough in the language of the will to let in the grandchildren of the life tenant, saying, per Papaleo, J.: “ If, however, this language is capable of any construction which would permit the issue of the deceased son to participate in the remainder limited upon his mother’s life estate, that construction should, on well-settled principles, be adopted in preference to one which should exclude them.” In Matter of Paton (111 N. Y. 480) the will submitted for construction provided that upon the happening of a certain event the property should be divided “equally among the children I may then have, or those who may be legally entitled thereto.” The court realized that this clause was susceptible of two interpretations, one of which would exclude, arid the other include, grandchildren, and found no difficulty in adopting the latter interpretation, quoting with ajjproval Judge Stoby’s remark in Parkman v. Bowdoin (1 Sumn. 367), that “ although in its primary sense, the word ‘ children ’ is a desoriptiopersonarum who are to take, there is not the slightest difficulty in giving it the other sense, when the structure of the devise requires it.” The Court of Appeals, quoting from Kent (Vol. 4 [2d. ed.], p. 419) that “ children, as well as issue, may stand, in a collective sense, for grandchildren when the justice or reason of the case requires it,” cites a large number of well-known authorities for the proposition that “ The word ‘ children ’ is a flexible expression, and we think that' meaning should be preferred, when the reason of the thing sustains it, which permits the children of a deceased child to inherit.” ■ 'Where two interpretations of the word “ children ” are possible, the courts have been much disposed to adopt that one which will not serve to disinherit the heirs of the testator. (Scott v. Guernsey, 48 N. Y. 106, 120; Matter of Keogh, 126 App. Div. 285, 289.) In the present case the gift over is to take effect at the end of the trust term, and is to the testatrix’s other children and.to the child or children of any son or daughter who may have died “ before such contingency; ” that is,, before the death or marriage of the last survivor of the two daughters for whom the trust was created. It is clear that this creáted á contingent remainder to vest in possession at the end of the trust term, and that those designated then to take the estate will take it directly under the will and not by representation. The testatrix was creating a trust which might run, as indeed it has,, for a long time, and she clearly contemplated and undertook to provide for the probability that some of her own children might die before the expiration of the trust term, and that her married sons, and daughters might have children, grandchildren to her, born after her death, but before the expiration of the trust, and -it is clear that she intended to include among the ultimate beneficiaries sucli after-born grandchildren, if their parent, who was her son or daughter, should have died, before the time for division and distribution arrived. She was careful to provide that the distribution should be made per stirpes, at least so far as concerned her own children and grandchildren, preserving, so far as possible, an equality between her own children who suryived the trust and the families of those who did not survive. In all this; We discern, without difficulty, a very simple testamentary design to provide for her unmarried daughters so long as they remained unmarried, and, when they should both have died or _ married, to distribute the estate among those who at that time would answer to the description of her heirs at law. To give effect to tins testamentary scheme it is necessary.to include among those who may become entitled to share in the distribution of the estate, when' the time comes to distribute it, the great-grandchildren of the testatrix. All the facts have been found by the referee in his report, and it will not, therefore, be necessary to send the' case back for. a new trial. ' ■

The interlocutory decree will, therefore, be modified in accordance with this opinion, with costs and disbursements to the guardian ad litem for the infant appellants.

■ Ingbaham, P. J., Clabke and Millee, JJ., concurred; Laughlin, J., dissented.