The decision of this appeal depends upon the meaning and legal effect of the word “ issue,”'as used in the 6th clause or paragraph of the will of the late George J. Foster, which will was duly admitted to probate in the year 1876 in the Surrogate’s Court of the county of Few York. • The appeal is taken from a decree of one of the surrogates of that county, passing the accounts of a substituted trustee of a trust created by that will and making distribution of the trust fund, which consisted of a sum of money held by such trustee under such 6th clause of the will primarily for the benefit of a niéee of the testator. It became necessary for the surrogate to construe the 6th clause. The principal of the fund in the hands of the trustee was $30,000, and it was composed of a sum of $5,000, being one-tenth of $50,000, referred to in the 3d clause of the will, and an additional amount of $25,000, also referred to in that 3d clause and in the 6th clause. The latter clause reads as follows:
*298“ Sixth. The share so set,apart to my niece Mrs. Margaret Beeckman together with the sum of Twenty-five thousand dollars above directed to be set apart for her use I give to my executors in trust to keep, the same invested .upon good and lawful security and to apply the whole net income thereof' to the usé of the said Margaret during her life, and upon her death such share shall go,and be paid . or transferred to her issue, and in default of issue to her next of kin in such proportions as they would be entitled to under the laws of, the State of .New York upon distribution .of personal estate ■ belonging'to her upon her dying intestate — with power nevertheless to my said -niece by. her last will executed in due form of law or Instrument of -appointment executed in like manner to alter and regulate at her discretion the proportions in which the same shall Be distributed among thp persons who shall be entitled thereto under - . the foregoing provisions of this Article."”
■ The surrogate held that the word “issue,” as it appears.in the 6th'clause, related to both the children and grandchildren bf ; Margaret Beeckman, and.indicated the intention of the testator-that children and grandchildren should take per capita. Mrs. Beeckman made a will, which was ■ duly admitted to probate, but .she did not exercise the power of altering and regulating, at her discretion,, the proportions in which the trust fund should be distributed among the persons entitled thereto. She left her surviving four children and eight grandchildren. The plain cjuestion, therefore, is whether the word “issue” is to be construed as limited to children, or', embraces' the grandchildren also. ' ' '
It is now the settled law of this State that the word “ issue,” contained in a domestic will, has a fixed, primary legal signification,, and that it.includes descendants and not merely children. In Palmer v. Horn (84 N. Y. 516) the court said that “the Word ‘issue” is an ambiguous term.. It' may mean descendants generally ór merely children ; and whether in a will it shall be held to mean the -one or the other depends upon the inteiition'of the» testator as derived from 'the context or-the entire will, or such extrinsic circumstances as can be considered.” In Drake v. Drake (134 N. Y. 220) it is said : “ In its .general sense, unconfined by any indication or intention to the contrary, the word issue’ includes in its meaning all descendants. * * * It may, however, when such appears to have been *299the intent, with which the word is used; have the restricted import of children.” In Soper v. Brown (136 N. Y. 244) the subject is elaborately considered. There the case turned upon the meaning of the word “ issue ” in a gift in remainder to the lawful issue of -a daughter of the testator. The plaintiffs insisted that the word meant “ children.” Andrews, J., writing for the court, says: “I am of the opinion that the word ‘ issue/ in a deed or will, when used as a word of purchase, and where its meaning is not otherwise ' defined by the context, and there are no indications that it was used in any other than its legal sense, comprehends all persons in the line of descent from the ancestor, and has the same meaning as ‘ descendants/ and that while it embraces the children of the ancestor it is because they are descendants in common with all other persons who can trace direct descent from a common source. It is common learning that this has been the accepted meaning of the word/issue’ in that large class of limitations to issue of the first taker, accompanied with a gift over in default of issue.” The learned judge also says : “ There are many authorities on wills in which the word has been construed to mean ‘ children ’ only. These authorities rest upon the undisputed principle that words used by a testator in his will are to be interpreted in the sense which • he attributed to them, where it appears by the context that they were not used in their' strict legal sense. It is but one of the applications of the doctrine that in the construction of wills the intention of the testator is to govern when not inconsistént with the rules of law. In Sibley v. Perry (7 Ves. 522) the word ‘issue’ was held to mean ‘children/ because coupled with and used as the antithesis of the word ‘ parent.’ ” The court then refers to the statement of the rule by Jarman (2 J arm. Wills [Big. 5 th Am. ed.], *101) and other text writers, namely, “that while the meaning of the word ‘issue’ is not inflexible, and may in some cases designate ‘ children ’ only, depending upon the- intention as disclosed upon the whole instrument, nevertheless where its meaning is not restrained by the context, it is to be interpreted as synonymous with ‘ descendants/ and as comprehending objects of every/degree, and that the construction is the same whether used flu á bequest or devise.” The learned judge also says: “ It is settled that under a gift to ‘ issue ’ where the word is used without any terms in the context to qualify its *300meaning, the children of the aiicestor and the issue of such children, although t'hexparent is living, as well as the issue of deceased children, take in equal sha res per capita and not per ■stirpes, as primary-objects of the. disposition.” -
The rule of construction was again anhotinced by the Coin-t ,of Appeals in the case of New York Life Ins. & Trust Co. v. Viele (161 N. Y. 19, 20), where it is said : “ The words ‘ lawful issue,’ when tised in a domestic will, primarily and generally mean descendants. (Citing cases.) Where there is nothing to the contrary to be found in the context of the instrument or in extraneous facts proper to be considered, that is the sense in which they are presumed to be used in a will. The real question in this case is whether the testatrix used . tliem in'that sense or in some other sense.' In giving construction to the words used by the testatrix in a domestic will, we (cannot assume, without the clearest evidence, that she used the words ‘ lawful issue ’ in'the sense they might possibly-bear,” under the laws of a foreign, country in which she .died.
We must endeavor to ascertain whether the testator intended that the word “ issue ” in -the 6th clause of his will should have other than' its primary meaning. Only a slight indication of such intention gathered fi-qm other parts of the instrument would be required. (Palmer v. Horn, supra.) The record is barren of .evidence of extraneous facts or circumstances that would aid. in the inquiry. We know nothing of the family of Mrs. Beeckman at the titile of the testator’s death. All we are informed of is that she was his niece, the daughter of his deceased brother Samuel H. Foster.
Looking'into the will we find nothing to justify the conclusion that the word “issue”.in th'e 6th clause was used otherwise than in its legal sense. It is noticeable that provisions for the benefit of the other children and their issue of the--testator’s brother Samuel are entirely different from the provision made for Mrs. Beeckman and her issue. - After directing the payment of his debts and funeral expenses, the testator disposes of all the rest, residue and remainder of his estate. He bequeathes one part to the children of his deceased sister Caroline,- or to such of them as are living at the i • , time of his death, and to the issue living of any deceased child, in equal shares; -the issue of any such deceased child taking -by representation the share which the parent would have taken if living. *301Out of the remaining two-thirds, he constituted a trust for $50,000 for the benefit of the wife of his deceased brother Samuel H. Foster, and then by the 4th clause lie directs that the residue of the two-thirds be divided into as many equal shares as there should be children of his brother Samuel H. Foster living at the time of his, the testator’s, death, or who have died in his lifetime leaving issue surviving him, the testator. He then gives his nephew Edward, the son of Samuel, absolutely the share to be set apart to him. Then follows the 6th clause which, as said before, is radically different in every respect from the provision made for the other children and issue of children of his deceased brother Samuel. By the 7th clause the several shares of the said two-thirds of his residuary estate set apart for the other children of Samuel H. Foster, who should survive him, the testator, are given to his executors in trust to keep the same invested upon good and lawful security and to apply the whole net income of the respective shares to the use of the several children of his brother, to whom the same shall have been set apart during their lives, and upon the death of any of said children, the share so set apart shall go and be paid or transferred to his issue. Here, the gift is in trust for the benefit of the children named in the 7th clause with remainder over to their issue; and there, the word• “ issue ” is used in a different manner and relation from that in which it is used in the 6th clause. By the 8th clause it is provided that such shares of the residue of the two-thirds of the residuary estate as shall be set apart and designated for the issue of any deceased children of his brother Samuel shall be held in trust for such issue, and the whole net income thereof applied to the use of such issue (descendants of children taking only their parent’s share by representation) during the lives of two persons named, and upon the “ death of the longest liver ” of such two persons the shares are to go and be paid over or transferred to such, issue respectively, if then living, and if not then living, to the next of kin. The scheme of the will relating to issue of children of his deceased brother Samuel, other than the issue of Mrs. Beeckman, is, therefore, distinct from that which relates to her issue. The 6th clause stands alone and independent of other testamentary provisions. If the grandchildren of Mrs. Beeckman are to be excluded and the remainder interest in the trust fund after her death is limited to her *302children, then it must be upon the theory that her grandchildren ■ could only take by representation or substitution. But it is manifest from this will that the testator knew what taking by representation meant. When speaking.of the gift of one-third of the residuary estate to the: children of his deceased sister Caroline and the issue living of any deceased child of his said sister in equal shares, he directs that the issue of such deceased child shall take by representation the share which,the parent Would have had if living; And so in the 8th clause he directs that the issue of deceased children of his brother (other than issue, of Mrs. Beeckman) shall only take their parent’s share by representation. This will is not in artificially drawn. Where the testator intended that issue should take. by representation he said so. The 6th clause, standing aloné indi- ' cated that the trust fund set apart to Mrs. Beeckman for her life should be distributable by her (if she exercised the power of distribution) among her descendants in such proportions as she might direct, and upon her failure to do so the amount of the trust fund should be distributable among her issue in the primary sense of that ' .word. " ' i i ■
As said before,. We are unable to find anything hr this will which - . varies the primary meaning of the word “ issue,” and we conclude that it was the intention of the testator to allow all of the descendants of Mrs. Beeckman who come within that primary meaning to participate in the distribution of this trust fund.
The decree, of the surrogate should be affirmed, with costs.
• Laughlin,’ J., concurred. ■
l . Decree modified as directed in opinion,, and as modified affirmed, with costs to executors and appellants payable out of the estate.