The sole question involved in this appeal is whether the term "the lawful issue of my said sisters" includes the sister's grandchildren, whose parents were living at the death of Mary Hopeton Drake. If it does this action must fail, but if it does not it is well brought. The word "issue" has not a precise meaning in the English language as spoken, or as written. The word is more frequently used to denote children, but it is often intended to embrace all of the descendants of the ancestor referred to. Neither has the word a precise legal meaning, for sometimes it has been held to embrace children only, and sometimes all lineal descendants, near and remote.
In the earlier English cases it was held that the primary meaning of the word was, "all descendants," and its secondary meaning, "children." (Leigh v. Norbury, 13 Vesey, 340; Ross v. Ross, 20 Beav. 645; Cannon v. Rucastle, 8 C.B. 880;Ralph v. Carrick, L.R. [11 Ch. Div.] 885; Morgan v.Thomas, L.R. [9 Q.B. Div.] 643-646; Maddock v. Legg, 25 Beav. 531; Re Jones Trusts, 23 id. 242; Hawkins on Wills, 87.)
But this definition has not passed unchallenged. KENT says, (4 Com. 278): "The term issue may be used either as a word of purchase or of limitation, but it is generally used by the testator as synonymous with child or children." Judge REDFIELD, in his learned work on Wills, says: "It seems to us that *Page 233 the term `issue' in its primary signification imports children, and that it is a secondary meaning, by which it has been held to include the issue of issue, in an indefinite descending line. It is susceptible, more naturally than children, of including all descendants, but the primary sense certainly is that of direct issue, and it is only in a secondary sense that it also includes remoter descendants, as the issue of issue." (2 Redfield on Wills [3d ed.] 37, 38, note 5.)
In Freeman v. Parsley (3 Vesey, 421), the chancellor, in applying the rule that the word "issue" included grandchildren and allowed them to take in competition with their parents, said: "In the common use of language, as well as the application of the word `issue' in wills and settlements, it means all indefinitely. I very strongly suspect that in applying that to this will I am not acting according to the intention; but I do not know what enables me to control it. If a medium could be found between a total exclusion of the grandchildren and the admission of them to share with the parents, the nearest objects of the testator, that would be nearer the intention; as by letting in those, whose parents were deceased, to take the share the parents, if living, would have taken; but that construction would be setting up my own conjecture against the obvious sense of the words. When you put the question, whether he meant all these grandchildren should take with their parents, I think he would say he did not; yet, if he was asked the other way, if it should go to the survivor, while there was a descendant, I am equally clear he would not have given it to the survivor. They are, therefore, all entitled."
Judge REDFIELD, commenting on the case last cited, said: "This admission of so experienced an equity judge goes far to convict the English rule of having perverted the intention of testators in the majority of instances. There can be no question that in the great majority of cases, say ninety-nine in a hundred, where testators have given estates to children, or to them and their issue, they do have in mind the precise distinctions adverted to above, and intend the issue to take only by way of substitutionfor, and not in competition with, the *Page 234 ancestor. It might, therefore, seem more just, and surely more frank in the courts, to change the rule of construction by a sweeping overruling of the former cases, than to attempt to reach the same practical result by a multiplicity of exceptions, every one of which demonstrates the fallacy of the rule. In saying this we only intend that if the courts could restore the term issue to its primary sense of children, and treat its extension so as to include all descendants as a secondary signification, it might enable them to escape some of the refinements into which they are driven at present, in consequence of the early English cases having established the opposite construction." (2 Red. Wills [3d ed.] 39, note 9.)
The only facts found by the trial court which are claimed by the counsel for either party to throw any light upon the intention of the testator in respect to the persons whom he intended to include within the term "lawful issue of his sisters" are contained in the twenty-second finding.
"Twenty-second. That the said testatrix, Mary Hopeton Drake, was treated by the said James Drake as his daughter, and it was understood in his family that she was his illegitimate daughter; that he maintained and educated her, and on her leaving school at the age of twenty years, in or about the year of 1860, she went to live with him, and continued to reside with him until his death in the year 1871. That during all that period he displayed great affection for her, and she had not been treated by his sisters and their children with the cordiality and affection which they had shown toward each other."
This finding seems to throw little or no light upon the sense in which the testator intended to use the disputed term, and its meaning must be arrived at from the face of the will. If the words of the power be considered apart from the words of the gift over in default of the execution of the power, the term "lawful issue" is not limited or qualified, and under the English cases it would include the remote descendants of the deceased sisters of the testator, even though such remote descendants had parents living. *Page 235
But in determining the meaning of the term, it is our duty to examine the sense in which it was used in other parts of the will. By the ninth clause, which contains the power, pursuant to which the appointment was made, there is a gift over in default of appointment, in the following language: "I hereby give and devise the said last-mentioned eleven dwelling-houses and lots of land to my sisters above named and to their heirs and assigns, from and after the death of the said Mary Hopeton Drake, forever, to be divided among my said sisters in equal shares, and in case of the death of any or either of my said sisters during the life-time of the said Mary Hopeton Drake, leaving lawful issue, and then in such case last mentioned the said issue of each one so dying shall take the share or part thereof which the parentof such issue would have taken if she had survived." By the language of the devise over, it is apparent that the testator did not contemplate that his bounty, in default of issue of Mary Hopeton Drake, and of an appointment by her, was to extend beyond: (1) His sisters. (2) Their children; and that the term "lawful issue" embraced only the children of his sisters. The words provide that the issue, in case of the parent's death, should take the parent's share, and the word parent plainly refers to the three sisters. The parents of such issue are referred to as of the feminine gender, evidently meaning his three sisters. In this instance at least, the testator did not intend that descendants of his sisters more remote than their children, should become the objects of his bounty.
In determining the meaning of the words "lawful issue," as used in the power, we may inquire if a definite meaning has been given to them in other parts of the will. When a different meaning has been given in independent clauses relating to distinct devises, and to different persons, such meaning is not necessarily controlling. (Carter v. Bentall, 2 Beav. 551; Hedges v.Harpur, 9 id. 479; Waldron v. Bolter, 22 id. 284.) But when the term has been given a meaning in a devise of the same subject, and with reference to the same devisees, it is, in the absence of other circumstances, controlling. *Page 236
In Palmer v. Horn (84 N.Y. 516), the will under construction contained the following bequest: "To divide the sum of $20,000 into as many shares as there shall be lawful issue of my deceased nephew, Matthew Horn, living at my death, and to invest the same and apply the interest and income from each of said shares to the use of each of the said children,respectively, and as they respectively depart this life, to pay over the principal of said share to their lawful issue, share and share alike."
When the will was executed, and when the testatrix died, three children of the aforesaid deceased nephew were living. But before the execution of the will, a daughter of said nephew had died, leaving two children who survived the testatrix. The children of the deceased daughter asserted that they were included in the term "lawful issue," and were entitled to a share. But it was held that the words "each of the said children respectively" limited the word "issue" to the children of the deceased nephew, and that the grandchildren were not embraced within the term "lawful issue."
In discussing the question the learned judge, who spoke for a unanimous court, said:
"The word `issue' is an ambiguous term. It may mean descendant's generally or merely children; and whether in a will it shall be held to mean the one or the other depends upon the intention of the testator as derived from the context of the entire will, or such extrinsic circumstances as can be considered. (Doe ex dem. Cannon v. Rucastle, 8 C.B. 876;Ralph v. Carrick, L.R. [11 Ch. Div.] 873; Earl of Oxford v.Churchill, 3 Ves. B. 59, 67.) In England, at an early day, it was held, in its primary sense, when not restrained by the context, to be co-extensive and synonymous with descendants, comprehending objects of every degree. But it came to be apparent to judges there that such a sense given to the term would, in most cases, defeat the intention of the testator and hence in the latter cases there is a strong tendency, unless restrained by the context, to hold that it has the meaning of children. It will at least be held to have such meaning, upon *Page 237 a slight indication in other parts of the will that such was the intention of the testator. (2 Jarm. Wills [R. T. ed.] 635; 2 Redf. on Wills [2d ed.] 34, 37 and note.) And substantially the same rule of construction prevails in this country. In 4 Kent's Commentaries, 278, in a note, the learned chancellor said: `The term issue may be used either as a word of purchase or of limitation, but it is generally used by the testator as synonymous with child or children.' (Palmer v. Horn, 84 N.Y. 516; Palmer v. Dunham, 125 id. 68.)"
In Edwards v. Edwards (12 Beav. 97), the testator had three unmarried daughters, Mary, Marianne and Ann; to Mary he gave the use for life of £ 1,000 in case she married. To Marianne the use for life of £ 700, in case she married. To Ann the use for life of the residue of the estate in case she married. The remainder over in each case "to be divided among her lawful issue." Ann and Mary died unmarried; Marianne married and had seven children, three of whom died before their mother. One of the four surviving children had four children who claimed to participate in the fund upon the ground that they were included within the word "issue." In a subsequent part of the will the testator provided that in default of issue of all his daughters that the sums bequeathed to them for life should be equally divided among all the children of T.R. and J.A., and in default of "lawful issue" of either of them the whole to be divided equally among the "children of the other," share and share alike. It was held that though the word "issue" was used equivocally in the first part of the will, that in the subsequent part it was used as meaning children, and it was held that it must be assumed that it was used in the same sense in all parts of the instrument. The same rule was stated and applied inRhodes v. Rhodes (27 Beav. 413). In Robinson v. Sykes (23 id. 40), it was held "that though the word issue is nomengeneralissimum and includes all the remotest descendants, nevertheless, held that where issue are pointed out as persons to take, with reference to the share of the parent, a gift which, so far as regards the parent, fails, they take on the principle which may be called a *Page 238 quasi representative principle, that is, that the children of each parent whose share fails takes that parent's share, but not admitting the grandchildren to take in competition with the children, to participate in the share of that deceased parent." The same rule was held in Ross v. Ross (20 Beav. 645).
As before shown, when the testator was providing for a disposition of these eleven lots, in default of issue, and of an appointment, the term "lawful issue" was so limited that it only included the children of the sisters, and it provides that such children should take, representatively, the children of each parent her share. Unless there is something in other parts of the will which lead to the conclusion that the testator intended by those same words to authorize the appointee of the power to execute it in favor of any of the descendants of the sisters, near or remote, it must be held that she was limited in her choice to the sisters and their children, and in case any of the children were dead, to their children.
In the fourth, fifth and sixth clauses of the will the testator devised to each of his sisters a house and lot for life, with remainder over in each case, in the following language:
"From and immediately after the death of the said (sister), to her lawful issue forever, to be divided equally between them in case they should be of equal degrees of consanguinity, and in case they should be of unequal degrees of consanguinity, then the issue of each deceased parent to take the share which the parent of such issue would have been entitled to if he or she had been then surviving."
By these clauses the testator gave (1) a life estate to each sister, and after her death to her lawful issue. It is plain that the word "issue" was not here used in the sense of children only, for it provides that if they (issue) should be of unequal degrees of consanguinity that the issue of each deceased parent should take the share of such parent. Clearly, the term "issue" in the fourth, fifth and sixth clauses was used representatively, the testator not intending that children should take to the exclusion of or concurrently with their parents.
By the eighth clause of the will the testator empowered *Page 239 Mary Hopeton Drake to appoint any or all of the eleven houses and lots devised to her for life in the seventh clause to any or all of her lawful issue, but in case she failed to so appoint, and left lawful issue her surviving, the remainder over was disposed of as follows:
"To the said Mary Hopeton Drake, during her natural life, to her said lawful issue, from and immediately after her death, forever, and if such issue shall consist of more than one person, and shall be of equal degrees of consanguinity, then the said estate hereby given and devised to them is to be divided among them in equal shares, and if such issue shall consist of persons of unequal degrees of consanguinity, then the issue of any deceased parent shall take the share which the said parent of such issue would have taken if he or she had been then surviving."
By this clause the testator plainly intended that if Mary Hopeton Drake left lawful issue, and failed to appoint as between them, that the houses should pass to her descendants, near and remote, upon the principle of representation, the children of each deceased parent taking the parent's share. In the fourth, fifth and sixth clauses the testator provided for the same persons, his sisters and their descendants, that he provided for contingently by the ninth clause, and no sufficient reason appears upon the face of the will or upon the facts found to lead us to the conclusion that he intended by the word "lawful issue," as used in the power, to embrace all descendants, and, in all other parts of the will, that he used the term in a different and more restricted sense. It follows that the attempted execution of the power by Mary Hopeton Drake, as to seven of the eleven houses and lots, was invalid, and they pass under the devise over, one-half to the children of Susan A. Drake and one-half to the children of Sarah A. Lawrence. The counsel for the appellant, in his brief, does not ask for a judgment absolute, but for a reversal and a new trial, which should be granted, with costs to abide the event.
All concur with BRADLEY, J., except FOLLETT, Ch. J., HAIGHT and BROWN, JJ., dissenting.
Judgment affirmed. *Page 240