Hone v. Van Schaick , 3 Barb. Ch. 488 ( 1848 )

The Chancellor.

It is stated in the affidavit in opposition to the appellants’ petition in this case, that the deponent believes Mrs. Kneeland inherited a large estate from her father, and that she had expectations from her grandfather, who was a wealthy man. But these circumstances cannot affect the construction of the will or codicil in this case, as it is not shown that the other grandchildren of the testator were destitute of property, or that they had not similar expectations from the property of their parents, and from their grand-parents other than the testator. No réason therefore appears for making any discrimination between Mrs. Kneeland, or her children who might be in esse at the death of the testator, and his other grandchildren who might be then in existence. "And if appears to be impossible to resist the conclusion that by the third article of the first Codicil 'the testator either intended to give a legacy of $6000 to Mrs. Kneeland, if she should be living at the time of his death, or that he intended to give a similar leg'acy to each of her children, who should be in esse at that time, by the description of grandchildren." The vice chancellor, therefore, appears to have erred in supposing that the testator intended to exclude the issue of his deceased son Philip S. Hone from the class of persons who were to have legacies of $6000 each.

The question then arises as to which of the descendants of Philip S. Hone are entitled. Mrs. Kneeland was a grandchild of the testator and was living at the time of his death- She was therefore entitled to the legacy, unless there is something ia the will, or in the codicil, to show that in relation to her or her children the testator did not use the word grandchildren in its "primary sense. The word children in' its natural sense only embraces the immediate descendants of the person named or described, and does not include descendants of a more remote degree. Nor does the term grandchildren, without something further to extend its natural signification, include great-grandchildren. It is true Lord Chancellor Henly, in the case of Hussey v. Berkeley, (2 Helen’s Rep. 194,) expressed the opinion that the word grandchildren, without further explanation, would include great-grandchildren, unless there was something to indicate a contrary intention. But such is not the natural sense of the term grandchildren. And the testator is to be presumed to have used words in their natural or primary sense, unless there is something in the situation of his family, or in his will, to lead to a contrary conclusion. It is a cardinal rule, however, in the construction of wills, that the" intention of the testator is to govern, if consistent with the rules of law: That is, the testator cannot create a trust which the law prohibits, or suspend the power of alienation or the absolute ownership of property beyond the period allowed by law; nor create any other interest in property which the law repudiates. But he is not bound to use any particular form of words to devise or bequeath a legal interest in property, or to designate the objects of his bounty; provided he uses language sufficient to show his intention. That intention is to be ascertained from the whole will taken together, and not from the language of any particular provision or clause thereof when taken by itself. (Crone v. Odell, 1 Ball & Beat. Rep. 466.) And for the purpose of construction, a will and a codicil may be considered to. gether and construed as different parts of the same instrument. (1 Rob. on Wills, 3d Land. ed. 355.)

In the case under consideration, I think the will and the codicil, taken together, show that the testator did not intend the legacy of $6000 for Mrs. Kneeland, but that he meant to give a legacy of that amount to each of her children; who should be in esse at the time of his death, by the-designation of his grandchildren. Although the trusts attempted to be created by the will have been declared void and inoperative, as suspending the power of alienation of the estate beyond the period allowed by law, it is proper to look at the disposition which the testator intended to make of his estate, by his original will, for the purpose of ascertaining the meaning and intention of the provision in the first codicil for his grandchildren. The object of the testator, in his original will, was to create an absolute term of twenty-one years in his real and personal estate, during which time the capital was to be managed and controlled by his executors and trustees, and the income only divided among his children, or their representatives, in case of their deaths; and to give the control of such income to the sur viving parent of his grandchildren during that term, if one of the parents was dead. And even after the expiration of the trust term, he intended that his children should enjoy the income of the property, during the continuance of their lives. This of course would leave those who were to have the ultimate remainder in fee in the estate wholly unprovided for during the lives of their parents ; and such parents could not furnish them any provision for the support of a family out of the capital of the estate, in the meantime. To obviate this difficulty, the tenth clause of the original will provided for an advance to the grandchildren of the testator, who should have married or have attained the age of twenty-one, with the assent of their parents or parent, not exceeding a certain proportion of the capital of the estate to which they would eventually become entitled under the provisions of the will; which the testator supposed to be valid. All the grandchildren of the testator, except Mrs. Kneeland, were then under age and unmarried, and either one or both of their parents were living. Both of the parents of Mrs. Kneeland, however, were dead; and she had become of age and was married, and had one child, at the date of the will. The testator therefore intended to put her and her husband and her children upon the same footing with his daughters and their husbands and children, in relation to the share of the estate which would have belonged to her father and his issue if he had then been living. And to carry into effect the intention of the testator in that respect, under the provisions of the original will, if they had been valid, the sixth subdivision of the ninth clause of the will would have been construed as being applicable to the partial division of the estate contemplated in the tenth clause of the will; so as to authorize an advance to the children of Mrs. Kneeland, by the description of the testator’s grandchildren, upon their marriages or the attaining their majorities, upon the request of their mother if living, or of their surviving father if she was dead.

What was the particular object of the testator in substituting an advance t<p each grandchild out of the estate generally, upon their marriage or attaining the age of twenty-one, instead of an advance out of the capital of the share of the parent, does not appear. But, that the legacy of $6000 to each grandchild, given by the first codicil, was intended as a substitute for the provision made in the tenth clause of the original will, is evident. For immediately after providing for the payment of such legacies, the testator abrogates the tenth' clause absolutely; and directs that the residue' arid" remainder of his'real- aiid personal estate shitlí remain subject to'the clauses and provisions of'th'éoriginal'will.5 \ He also ratifies and confirms the will," in-express terms, in every thing which is not revoked and altered by the-' codicil. "

The testator having started with the principle of treating Mrs', Kneefahd in every respect asr one of--his’ daughters; ail'd-placing tier husband and her issue upon a footing with' the husbands and issue of his daughters, the' inference appears to bé irresistible’thdt he "meant the same principle to apply to this-substituted bequest of portions to his grdndchildren, dtiring the' lives of their parents ór" of one of them. The provision in the codicil requiring'the approbation of the parents, hr'of the surviving'parent,i:to thb payment of the legacy to the! grandchild, would bé éutirely senseless upon any other cdnstrüction1. Fof the testator' must be presumed to: know the state of his' family, and tb have known that both the paretits óf his- grandchild Mrs. Kneelán’d'were already dead. -But upon the supposition • that he'intended" tú place Mrs. Kneeldtid and her husband' upon the-footing of d daughter and a-sOn-in-Iaw, and their children: upon the footing'of grdndchildren,':as in’the original will,-:iihat provision beéómés perfectly sensible in' relation to this- branch" :of his family as well as hi respect-to all his other grandchildren. I conclude therefore that each of -the children of Mrs.-Knéeland whowere m esse at the death- of‘the testator is entitled" to a legacy of $6000, to bé paid when they are married, hr upon-then*- at taming" th e age of twenty-one, in the sainé manner "as tlfe other grandchildren of fhe-te'stator; "and Subject' to the same-restriction, that the capital of the fund is- not to be paid-over to them by the executors1'without 'the written approbation óf théir n'bw" "surviving "parent, while he continues to" live. ■ " -• -

1 Although the second soil of the petitioner was not actually born before the testator’s death, he'iilust have be eft begotten many months'before ’that 'éverit. '■ He'is therefore'to be considered as in esse at the death of-'the -téStaíof, for the purpose of entitling"him to' this legacy; 'as'oné'of thé grahd’childréti of"the testator then living. For an unborn child, after conception, if it is subsequently born alive and so far advanced to maturity as to be capable of living, is considered as in esse from the time of its conception where it is for the benefit of the child that it should he so. considered. (See Marsellis v. Thalhimer, 1 Paige’s Rep. 35, and the cases there referred to.)^(a)

When the case under consideration was before the vice chancellor in, 1841, the case of Cutter v. Doughty, (23 Wend. Rep. 513,) was unreversed; and the reported decision of the vice chancellor, (3 Edw. Rep. 474,) shows that he relied upon the opinion of Mr. Justice Cowen in Cutter v. Doughty as perfectly decisive of the present case. Since that time, however, the court of dernier resort has reversed the decision of the supreme court in Cutter v. Doughty; contrary, I admit, to my own opinion as to the intention of the testator in that case. (7 Hill’s Rep. 305.) In the present case, however, I have no doubt of the intention of the testator to consider and treat Mrs. Kneeland as a daughter, and .her children as his grandchildren, in the distribution of his estate among his descendants, in the first codicil as well as in the original will.

, The decretal order appealed from must therefore be reversed; .and a:decree must be entered declaring the rights of the two oldest children according to this opinion; and directing the executors to pay them their respective legacies when they shall be entitled to the same according to the third clause of the codicil of August, 1831. The costs of both parties upon this appeal, as well as upon the original application to the vice chancellor, ,, are to be paid out of the personal estate of the testator which is .-undisposed of: by his will, and which is in the hands of his executors to be administered.

(a) See also Mason v. Jones, (2 Barb. Sup. Court Rep. 231.)