Riker v. Gwynne , 124 N.Y.S. 124 ( 1910 )

Ingraham, P. J.:

The property in question was owned by Edith O. Gill, who died leaving a last will and testament which was admitted to probate in May, 1899. By that will, she left all her real property to her husband for life or until his remarriage. He is still living and unmarried and in possession of the property in question. Hpon the death or remarriage of her husband she devised.her real property to her brothers David and Abraham “in fee share and' share alike,” with this qualification: “ Should either of my said brothers die before me, or before the death or the remarriage of my said husband not leaving lawful issue him surviving, then the survivor of them shall have and take the share of the said real and personal estate which the deceased if living would have taken. But if the deceased shall leave lawful issue then I-give and devise and bequeath to such issue their parent’s share in said real and personal estate ; ” and by the 5th clause of the will the testatrix directed her executor to take the chargé, management and control of her estate during the life or until the remarriage of her husband, to pay the rents and income therefor to her husband, “ and from and after the death of my said husband or his remarriage to deliver over all and singular said real estate to my said brothers David Eli Gwynne and Abraham Evan Gwynne or to such other person or persons as shall be entitled to same pursuant to the térms and conditions of this will.”

In construing this will the question that confronts us is, to whom did she intend that her real property should go on the death or remarriage of her husband? If her brothers survived her husband there would be no question but that she intended that they should take a estate in fee simple; but she realized that her husband might survive one or both of her brothers, and made provision for that contingency. If the one dying left no issue him surviving (issue here clearly meaning descendants) then the survivor was to take; but if the deceased brother should leave lawful issue him surviving then the testatrix gave and bequeathed the deceased brother’s share to “ such issue.” The use of the word “ issue ” is significant. If it had been intended to confine the devise of the remainder to the children of the deceased brother, that word would have been used instead of one which is capable of a more extended meaning, and which as ordinarily used includes descendants to whatever degree. The intent throughout the will was that the persons who were to take were to be determined at the death of the testatrix’s husband. Thus, as is said, futurity was of the substance of the gift. It was only in the event that the brothers survived the husband that they could take. “ Should either of my said- brothers die * * * before the death or the remarriage of my said husband” ¿Aerethe survivor should take if he left no issue; but if the deceased left . lawful issue “ then I give and'devise and bequeath to such issue their parent’s share in said real and personal estate; ” and then to make clear the meaning of the 5th clause of the will, she expressly directed the executors from and after. the death of her husband “ to deliver over all and singular said real estate ” to her brothers or to such .other person or persons as should be entitled to the same pursuant to the terms and conditions of the will.

It would not be disputed, I think, that the surviving brother would not be entitled to the real property to the exclusion of the grandchildren of a deceased brother, and yet, if the word “ issue ” is limited to children, and the deceased brother left no child, but left grandchildren, I do not see why the surviving brother would not be entitled to the property.' If the words “ such issue’’ include the grandchildren of the deceased brother, I cannot see why such grandchildren constituting the “ issue ” of the deceased brother at the death or remarriage of the husband would not be entitled to have the executors deliver over to them the real property to which they were entitled by the terms of the will.

In every provision of this will the gift and the direction to deliver-over speak as of the time of the death or remarriage of the testatrix’s husband, and I think- it was clearly the intention to preserve this property to her brothers or their descendants at the time of her husband’s death or remarriage. David Eli Glwynne died in January, 19.00, leaving the bankrupt a child surviving. On February 8,1901, the bankrupt conveyed his interest in this real property to his mother. This conveyance would only be effectual to convey any interest in this property if he outlived the life tenant. It is this conveyance that the court has held was void as to creditors, and there was vested in the plaintiff, as trustee in. bankruptcy, the bankrupt’s interest in said property; but, as I construe the will, that interest was divested by the death of the bankrupt before the death of the life tenant. The bankrupt died in May, 1904, the life' tenant surviving, and thereby the bankrupt becariie divested of any interest in' the property, which vested in the “ issue ” of David E. Gwynne, which included the bankrupt’s children,, and neither the bankrupt granted nor his trustee took any interest in the property.'

It follows that the judgment should be reversed and the complaint' dismissed, with costs in this court and in the court below.

Clarke and Sóott, JJ., concurred; Laugh lin and Miller, JJ., dissented.