Hendricks v. . Hendricks

Bartlett, J.

The testator, Joshua Hendricks, left him surviving his widow, Emma, and three sons, Edgar, Clifford and Henry H. The testator died in 1893; the son Edgar died in 1894, leaving the defendant and appellant, Henry S. Hendricks, his only child; the son Clifford departed this life in 1901 without issue. The widow, Emma B. Hendricks, and the son Henry H. Hendricks still survive.

The mother of Emma B. Hendricks, Bachael Brandon, referred to in subdivision “ Fourth ” of the will, predeceased the testator, thereby requiring the payment to the sons of three-eighths of the principal of the trust estate at testator’s death, share and share alike.

This appeal involves the question as to the disposition to be made of the principal and income of the share of the .residuary estate bequeathed to the son Clifford, who died leaving no issue. The plaintiff, as the only surviving son of the testator, contends that after the death of his brother Clifford childless, he became entitled to the income of Clifford’s share during the life of his mother, and at her death to the principal thereof. The defendant and appellant, Henry S. Hendricks, the grandson of the testator and sole surviving child of testator’s son Edgar, insists that he and his uncle, the plaintiff, should receive equally the income of Clifford’s share during the life' of the widow, and at her'death the principal thereof must be divided between them in like manner.

The Special Term adopted the theory of the plaintiff, and the Appellate Division affirmed the judgment, with a divided court.

The question presented must be answered by construing subdivision “Fourth” of the will, paragraph 3, and subdivision “ Fifth,” reading as follows :

“Fourth. * * *

“III. From and after the decease of said Bachael Brandon and until the decease of my said wife, to pay to my said three sons two-eighths of the income of said trust estate; and upon the decease of my said wife to pay the principal of the then remaining five-eighths of my said trust estate to my said three sons, share and share alike.

“ Fifth. In case of the decease of either of my said three sons before the decease of their mother, leaving lawful issue, the issue of such deceased son shall take by representation the share the parent would be entitled to if then living, and in case of default of such issue, then my said executors shall pay over to’ my surviving sons equally the portion of said trust property herein bequeathed, to the son so dying without issue.”

We are of opinion that the scheme of the testator and the reading of his will are jffain, and that his intention is clearly expressed to place the issue of a son, dying before his mother, in the precise position his father would have occupied as to the income and principal of the share of a son who predeceased his mother leaving no issue. The evident intention of the testator was not to deal with his sons as a class, but to bestow upon the issue of a deceased son all rights of the father.

The testator was confronted by three possibilities — a son might die before his mother, childless; a son might predecease his mother leaving issue ; all of his sons might survive their mother.

In paragraph “ Fourth,” subdivision III of the will, he dealt with the latter possibility and provided that upon the decease of his wife the principal of the remaining five-eighths of the trust estate should be paid to his three sons, share and share alike. Then contemplating that which as matter of fact did happen, he provided for it in subdivision “ Fifth ” of the will, to the effect that in the event either of the three sons died before his mother, leaving issue, the latter “ shall take by representation the share the parent would be entitled to if then living.” The words, “ if then living,” refer to the time when interest or principal is payable out of the share of a son who had died leaving no issue.

Applying this provision to the facts in this case, what is the situation disclosed ? Testator’s son Edgar died in 1894, leaving his only child, Henry S. Hendricks, the appealing defendant, and in 1901, the son Clifford died, leaving no issue, so at the latter date Henry S. Hendricks, the only grandson, took by representation the share that his father, the testator’s son Edgar, would have taken “ if then liming,” which was one-half of the income of Clifford’s share during the life of testator’s widow, and one-half of the principal of that share at her death.

We not only regard this as the proper reading of the will, but 'as a most natural disposition of testator’s estate. The result is that testator makes no distinction between his surviving son Henry H. and liis deceased son Edgar, the issue of the latter being permitted to stand in his father’s place.

The judgments of the Special Term and Appellate Division should be reversed, with costs to the appealing defendant in .all the courts to be paid out of the estate, and judgment entered in his favor, according to the views expressed in this opinion.

Parker, Ch. J., Gray, O’Brien, Martin, Vann and Werner, JJ., concur.

Judgments reversed, etc.