Pfender v. Depew

Laughlin, J. (dissenting) :

I do not' agree with the construction given to the will by Mr. Justice Scott. A will should be so construed as not to disinherit heirs if the language used be susceptible of such construction. (Scott v. Guernsey, 48 N. Y. 106, 121.) In the case at bar, however, if the word “ children,” as employed by the testatrix in the will be construed in its primary sense, that will dispose of her property to those of her heirs who were in being and for whom she intended to make provision, and where, as here, there are children in the primary sense, the rule is that -grandchildren. are not included therein, unless clear intention to embrace them be found in' the will. (Palmer v. Horn, 84 N. Y. 516, 521.) I do not, however, agree with the contention made in behalf of the respondent that the provision in the 4th. clause of the will that the child or children of any son or daughter who shall have died before "the termination of the trust shall take the share which his, her or their parent would have taken, if living, was entirely unnecessary and superfluous on any 'theory other than as indicating an intention on the part of the testatrix to confine the disposition of the remainder of the corpus of the trust to the children and grandchildren of the testatrix. The claim is made that if the word “ children ” as used in that clause were intended to embrace grandchildren it would have been entirely unnecessary to make the specific provision with respect to the share which the grandchildren would take. If the specific provision had not been'made and the word children” included grandchildren, then the grandchildren would doubtless take per capita with children, but under this provision of the will they would only take per stirpes. I do, however, attach much importance to the phraseology of the *6424th clause of the will as bearing upon the construction of the word “children” Us therein used, It is perfectly clear that.the testatrix intended to make provision out of this remainder for both children- and grandchildren; but she did not intend to provide for all of her descendants, for she has expressly excluded by the words “other children” her two children who are life beneficiaries of the trust and their issue. This indicates that slje did not intend to make a devise by which this remainder should go to all of her' descendants,- to all of her children and grandtihildren, but on the contrary it appears that she intended to limit her descendants who should participate therein. The contingency upon which the remainder- should vest in possession in the deriseps of the testatrix has not arisen, for one of the life beneficiaries, Hannah L. Depew, is still alive and unmarried. The question arises in an actiop in partition as to who have contingent interests in the remainder of the trust property, and, at the time we are called Upon to decide the question it appears that one of the “ other children ” of the testatrix the plaintiff — is still alive and she lias both children and grandchildren living. Of course if she survives the termination of the trust neither her children nor her grandchildren will take and at- the present time her interest in the' remainder is doubtless vested subject to be divested by her - death before the termination .of the trust, (Stringer v. Young, 191 N. Y. 157.) If, however, the' plaintiff should die before the termination of the trust leaving her children and grandchildren now in being or some of them, the parent of her grandchildren being also alive, the question would arise as to whether the plaintiff’s children living at the termination of the trust, if one- of them as now- should then have children living, would take to the exclusion of such grandchildren of the plaintiff who would be great-grandchildren of the testatrix. If the word -“ children ” as used in. this clause of the will .is to be construed aS embracing grandchildren then there would be. found in the provisions of the will itself nothing to exclude the grandchildren of ■ the plaintiff from participating in. the remainder with ¡their parent as well as with their uncle and aunt. It may be said that no intention should be drawn from the will that the testatrix intended that her grandchildren and the issue of such grandchildren should at the same time inherit. But if the word “ children ” ex tends *643to grandchildren, and both parents and children are children then there would be no limitation in this provision of the will that the one shall only take in the right of the other. • If great-grandchildren of the testatrix are to take, then we find no rule prescribed by her to determine the share which each shall take either as between themselves or as between themselves and her other grandchildren and great-grandchildren. We find no provision indicating either that they shall take per capita or per stirpes. It is possible that the plaintiff and her son, who now has two children living, may die before the termination of the trust and that her two other children now living will survive its termination. In that event if children includes grandchildren it would seem, there being no provision that the grandchildren should take in the right of their parent or per stirpes, that the two grandchildren if they should survive the termination of the trust in the circumstances described, would each take the same share in the remainder as would their uncle and aunt. It is not reasonable to attribute such an intention to the testatrix. I am of opinion that if the testatrix intended that her great-grandchildrén should participate in this remainder express provision would have been made with respect to the share which they would take similar to that made in the 4th clause of the will by which it is made clear that her intention was that the children of any of her deceased sons or daughters should take per stirpes and not per capita. The construction for which appellants contend requires not only that the word “ children ” be construed as embracing grandchildren, but also, in order to make any reasonable disposition of the property, that the word parent ” as used in the 4tli clause of the will be construed in the case of grandchildren as having a dual meaning and referring both to their immediate parent and to their grandparent, for children by the terms of the will only take in place of their parent, which is Clearly used as referring to the sons and daughters of the testatrix who shall die before the termination of the trust leaving issue, and yet to prevent grandchildren from sharing per capita with children it is necessary to construe “ parent ” as meaning the immediate ancestor of the grandchildren and thus limit them to taking per stirpes. . I fiiid no evidence in the will to overcome the presumption that the testatrix intended to use the word children ” in other than its primary and ordinary *644sense. (Pimel v. Betjemann, 183 N. Y. 194, 200; Matter of Truslow, 140 id. 599.)

I think, therefore, that the appellants had no interest’ in the premises and that the interlocutory judgment should be affirmed.

Interlocutory decree modified as directed in opinion, with costs and . disbursements to guardian ad litem for infant appellants. Settle order on notice. ■ ' • ■