In re the Judicial Settlement of the Account of Kleeman , 61 Misc. 560 ( 1908 )

Ketcham, S.

The will is in part as follows:

“ Fourth. I give to my deceased wife’s brother, Alfred Brett, my house and lot located in Mill street Matteawan Dutchess County )$!". T, for his use of his natural life. After 'his death said house and; lot to be sold and the proceeds divided between my wife’s brother Frank Brett of Chicago and the children and grandchildren of my wife’s deceased sister Adeline Churchill of Manhattan Borough.

“ Fifth. I direct my executors to sell my house in St. Marks Place Ho. 119, as soon as convenient, at private sale or public auction 'and divide it with remaining personal property into three parts. One part of these I give and bequeath to my brother Josef Gutgesell, the second part to my sister Margaretal Ealb and the third part ¡to -the two children of my deceased; brother, Herman Gutgesell and Maria Zagel.”

The will contains a power in the executors to sell real estate. One question is whether the proceeds of the sale contemplated in the fourth paragraph are to be distributed to the wife’s brother, and the children 'and grandchildren of the wife’s deceased sister per capita or per stirpes.

A devise to one person named and to others indicated gener-. ally ¡as children of another person is a disposition per capita, unless a contrary intention can be extracted from 'the will. Ferrer v. Pyne, 81 N. Y. 281; Vincent v. Newhouse, 83 id. 505. This rule has been accepted with distrust and reluctance in this . 'State, and our courts 'have permitted it to' survive only within the limitation that it will not be followed if there is “ a faint glimpse of a different intention manifested in the ■will.” Cases cited supra, and Woodward v. James, 115 N. Y. 346; Bisson v. West Shore R. R. Co., 143 id. 125.

This does not mean that a stray glimmer of the contrary intention from one comer of the will shall supply the only light under which instruction shall proceed. The will must he read in all 'the light which its contents may yield and only when the reluctant ray, however, faint, reveals any intention to provide for the per stirpes distribution is the general rule to be escaped.

It is insisted that the direction in the fourth paragraph, that the distribution shall be made “ between ” persons, more than two, carries the narrower grammatical meaning that the distribution shall be by the twain and indicates a purpose that the wife’s brother shall have one-half and the remaining beneficiaries shall have the other half among them.

This argument overworks the word “ between.” In spite of its primary meaning it is often made to express the idea of distribution among more than two, not only in common discourse, but by writers of good English. The fourth paragraph itself indicates that the testator contemplated a distribution among individuals and not classes, and that the fact of a distribution along lines of race was not in his mind. Rot only the children, but 'the grandchildren, of the deceased sister are included in the provision; and it is within the beneficial purpose that a grandchild, whose parent is living, shall take a share equal to its parent’s share. It cannot be imagined that the idea of representation by stock was in the mind of a testator whose will ordained that the ancestor of the stock should share equally with his descendants.

In the fourth and fifth paragraphs, the testator deals with two funds substantially alike in their nature and in their relation to his general estate. The beneficiaries named in each paragraph bear a like, though not identical, relation to each other find to the testator’s grace and consideration.

If, then, the will surrounds one fund with 'apt and deliberate -expressions which manifest a, desire that it shall not be disposed of under the prima facie rule and refrains from similar expressions with regard to the other fund, one fund is manifestly outside the general rule, where the testator has placed it, and the other within its control, where he has left it.

In the fifth paragraph, one of .these funds is divided into ■three portions, so that, of four persons, two shall receive one-third each and the other shall go; to two; persons representing the stock of the testator’s deceased, brother.

Here is a determined purpose, wrought into precise language, that as to the fund in question the division is not to be proportioned to the number of beneficiaries. Ho such purpose is expressed in the fourth paragraph. Hone is implied in that para.graph, unless it be by the word “ between.” That implication; is not the necessary result of the word, and, even if it were, its intimations would be too slight to prevail over the manifest intention to .the contrary, which is derived from the other parts of the will hereinbefore considered.

The remaining question is presented by the fact that Margareta Ealb, to whom in the fifth’ paragraph was given one-third of the proceeds to be derived from the sale of real estate, died before the testator. Upon her death the provision in her bdhalf lapsed, and as to the share covered thereby the testator died intestate. Real Prop. Law, § 56; Matter of Wells, 113 N. Y. 396; Matter of Kimberly, 150 id. 90:

The decree should conform to these views.

Decreed accordingly.