[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 410 The infant defendant, Alice L. Harmony, is the only appellant, and the point most strenuously urged in her behalf by her guardian ad litem is that she is entitled, under the fifth clause of the will, to a share of the residuary estate of the testator. By that clause the testator gives his residuary, real and personal estate to his wife and all his living children, share and share alike, and refers to his marriage contract with his wife. By this contract he had agreed that if she survived him she should have such share of his real estate as she would be entitled to by the laws of the country where it might be located, were she a daughter of the testator and he died intestate, subject to certain qualifications and limitations in case of her marrying again.
The guardian ad litem contends that Miss Harmony, although a granddaughter of the testator, is entitled to take under the fifth clause as one of his living children, and he has cited numerous authorities to the effect that grandchildren may take under the denomination of children, where from the context it appears that such was the intention of the testator, and the guardian and his counsel have argued with much earnestness that that intention appears in the will in controversy here.
Upon this point we feel constrained to concur in the judgment of the Supreme Court. From an examination of the *Page 413 whole will, we think it satisfactorily appears that the testator, in the fifth clause, used the word "children" in its primary signification. He had, in the third clause, made a provision for the support of the appellant to the amount of $10,000, describing her as the daughter of his late daughter Sarah Ann, and in the fifth clause he gives his residuary estate, after the payment of the legacies before given, to his wife and living children. We think this language manifests an intention not to include the representatives of any deceased child. If he had intended to include all his heirs in the residuary clause, and to give to the descendants of his deceased daughter an equal share in his residuary estate with his surviving children, and $10,000 in addition, he certainly would have used some words indicative of such an intention, and would not have employed the restrictive term "living children" in disposing of the residue. The absence of any direction for the investment or management of any part of the residuary estate for the benefit of his granddaughter is also confirmatory of the view that he did not intend that she should share in it, when we look at the provisions made in the sixth clause for the protection of the female beneficiaries under the will, which provisions he declares to be of the first importance. They would be quite as important for his granddaughter, who was of tender years, as for his daughters. We also concur in the opinion and judgment that the $10,000, bequeathed for the benefit of the appellant, was intended to be held in trust for her and to be disposed of as declared in the judgment.
But in regard to the limitation over in the sixth clause of the shares of the daughters, in case of their dying without heirs (which must be construed as meaning without issue), we do not concur in the opinion and judgment at General Term that Miss Harmony is not included in the description "my other children and wife or their heirs," and consequently that she could not in any event take anything under that clause. We think that under the sixth clause, in the event of the death of Evelyn T. and Adele F. Low, or either *Page 414 of them, without leaving issue, or without being married, and disposing by will of the shares held in trust for them, Miss Harmony would be entitled to participate as an heir of one of the other children of the testator in the shares of the daughters so dying, or either of them. The bequest is to his "other children and wife or their heirs," which necessarily means the heirs of such of them as shall be dead. Miss Harmony is certainly an heir of one of the testator's "other children," and comes within the description, if construed literally. Had the fifth clause, instead of limiting the residue to the testator's wife and living children, given it to his wife and children or their heirs, there can be little question that the heirs of children dying before the testator would have been included. It is only by reference to the language of the fifth clause that the sixth was construed not to include such heirs. That construction is, therefore, based upon an implication of the testator's intention from the context, rather than upon the language of the sixth clause standing by itself.
The limitation in question is undoubtedly capable of the construction placed upon it at General Term, and a forcible argument may be made in its favor. But it is also capable of the construction we place upon it, and we have adopted it upon the principle that when the language of a limitation is capable of two constructions, one of which would operate to disinherit a lineal descendant of the testator, while the other will not produce that effect, the latter should be preferred. An intention to disinherit an heir, even a lineal descendant, when expressed in plain and unambiguous language, must be carried out; but it will not be imputed to a testator by implication, nor when he uses language capable of a construction which will not so operate.
We have carefully examined the other points in the case, and are of opinion that, with the single exception just mentioned, they were all correctly decided at General Term, and that the judgment, after being modified accordingly, should be affirmed. *Page 415
The costs of all parties in this court should be paid out of the estate.
All concur, except MILLER, J., absent.
Judgment accordingly.