The object of this suit is to recover an undivided share' or interest which the plaintiffs claim, as tenants in common, in a lot of land in the city of New-York, devised by Casper Samler to the children of his daughter Barbara if she should have any; and to his executors or trustees for her use during her life. And the only question in the case arises upon the construction of the clause in Samler’s will, limiting the fee in the premises in case of her death without lawful issue. At the death of the testator, in January 1810, he had five children, and one step-child, the daughter of his wife by her first husband, who, together with his wife, survived him.
By the first clause of his will he gave to his wife the use and income of his farm for life. And after her death he devised a part of the farm, in six distinct parcels or allotments, containing different quantities of land, to his grandchildren in fee; describing the children of his step-daughter as grandchildren in this clause of his will, and devising one allotment to the children of his step-daughter, Margaret Grenzebach, and the other five allotments to the children of his son John, and of his daughters Susannah, Elizabeth, Barbara and Mary, respectively. He also gave to the parents of those whom he described as his grandchildren in this clause of his will, life estates in the allotments so devised. The residue of his farm and all the rest of his real estate he directed his executors to sell, and that the proceeds thereof should be considered personal estate, and be divided among his legatees, as the rest of his personal estate was by his will directed to be divided.
The next clause of the will which is material to be considered, relates to the disposition of his personal estate, and is as follows: ■“ The remainder of my personal estate I direct to be divided into six equal shares, which I give as follows; to my step-daughter Margaret one share, to my daughter Susannah one share, to the children of my daughter Elizabeth one share, to the children of my daughter Mary one share, to the children of my daughter Barbara one share, and to the children of my son John one share.” And the testator by this clause of
If the will had stopped here, it is evident that neither the step-daughter nor her children would have been entitled to any part of the real or personal estate devised or bequeathed to the children of Barbara Samler, upon the subsequent death of the latter without having had any issue. But the premises in controversy, and the interest in the proceeds of the other real estate of the testator which was intended for her children, would have descended to the heirs at law of the testator as real estate or an interest in real estate, not effectually disposed of by the will. (Hawley v. James, 7 Paige's Rep. 213; Leigh & Dalz. Eq. Conv. 99; Ackroyd, v. Smithson, 1 Bro. Ch. Ca. 503.) And the one sixth of the personal estate, which was intended for the children of Barbara after her death, being undisposed of by the will, would have gone to the next of kin. (See Page v. Page, 2 Stra. Rep. 820: Bagwell v. Dry, 1 P. Wms. Rep. 700.)
But the testator made a further provision, to cover the contingency which has happened. And under that clause of the will the plaintiffs claim one fifth of the lot specifically devised • to the children of Barbara by the first clause, if she should have any. That clause is as follows-: “And it is my further will, that in case of the death of any of my said children or of my said step-daughter, without lawful issue, that then the share or portion of my estate which by this my will would have gone to such issue, be divided equally among the survivors of my children or grandchildren, in the same proportion as hereinbefore mentioned." It is evident that the term proportion, in this limitation over, does not refer to the specific devises of particular lots to the children of the testator’s son and daughters, and step-daughter, in the first clause of the will. For the lots thus devised contain different quantities of land, and do net appear to have been of equal value. But it was evidently intended to refer to the division of the testator’s pergonal estate, as provided for in the next preceeding clause
The proportion of the entire residuary estate which each child of the testator was to take either for life or in fee was one sixth. But he could not have intended that if one of them died without issue, the survivors should each take hut one sixth of that share; leaving the remaining one sixth or two sixths, as the case might be, undisposed of by the will. To adopt the figure used by one of the plaintiffs’ counsel, therefore,, this temple must in any event contain a less number of columns in rear than it originally did in front. For as there were six original takers, if one of them died without issue, there could only be five to take that portion of the estate, even if the stepdaughter, or her children, was included in the class which was to take that share of the property. Correct architectural taste would undoubtedly require that the materials of the column which had fallen by the ravages of time should be used to strengthen the five remaining columns equally, instead of being added to four only, and leaving the fifth of its original dimensions. It must be recollected, however, that this testator did not construct the other parts of his temple according to strict architectural taste. For the columns of his first row
But to leave this figure and return to the principles of legal cpnstruction. The testator has, in his will, shown that the step
But even if the step-daughter had been named in this last clause of the will, as one of the persons who was to take by survivorship, it would not have enabled the plaintiffs to recover in this suit on the original pleadings. For she survived Barbara, and her husband John N. Grenzebach would upon her death have been entitled to a life estate in the whole of her fifth of the premises in controversy, as tenant by the curtesy ; and would also have been a tenant in common with his children in the ultimate fee, as the heir at law of his son William, who survived his mother. It appears by the special verdict that John N. Grenzebach was living at the commencement of this suit. The heirs at law of his deceased wife could not therefore maintain an ejectment suit, during the continuance of his life estate as tenant by the curtesy; although she had been the owner of one fifth of the lot in question at the time of her death. (Adair v. Lott, 3 Hill’s Rep. 182.) It is true, the supposed tenant by the curtesy was one of the plaintiffs in the courfrbelow; and therefore might have been entitled to a verdict and judgment for his life estate, if there had been any proper count in the declaration for that purpose. The only count, however, is upon a joint title in himself and in his surviving children. Previous to the revised statutes, when ejectment suits were brought in the name of a nominal plaintiff, either upon joint or separate demises from the real parties by whom the suit- was instituted, it was well settled that upon a joint demise from two or more persons, the plaintiff could not recover by showing a title to the premises in a part of them only. (Treport’s case, 6 Coke’s Rep. 14; Taylor v. Taylor, 3 A. K. Marsh. Rep. 19; Doe v. Butler, 3 Wend. Rep. 149.) And though the form of the ejectment suit is now changed, by substituting an allegation of
If the step-daughter could not take an interest in the premises, under this clause of the will, as one of the surviving children, could her children take an interest in the premises, during her life, as surviving grandchildren of the testator 1 I have before said that the term proportion in this clause of the will was probably intended to refer to the quantity of estate Which the devisees in remainder were to take, as well as to their distributive proportions of the entire fee. For by the preceding clause the proportion of each of the testator’s children in the personal estate was one sixth; to four of them for life, with remainder to their children, and to the other absolutely. I think the partitive proportions which the surviving children or grandchildren of the testator, or both, were to take in the share of the one who had died without issue, are indicated by the direction that it should be divided equally among the survivors of his children or grandchildren. But then that equality, both as to the children and grandchildren, is qualified by what immediately follows—“ in the same proportion as hereinbefore mentionedthat is, in proportion to their respective interests in the testator’s residuary personal estate. The children of John and FAizabeth and of Mary respectively had an interest in the personal estate, as remainder-men in fee after the termination of the life estates of their parents therein. And therefore the children of each collectively would be entitled to a similar interest, as surviving grandchildren of the testator, in the share of their aunt who died without issue ; whether their parents had or had not survived her. But as the share of Susannah in the personal estate was absolute, the testator could not have intended that if she and her children both survived her sister, who. should die without issue, such children, by this description of his surviving grandchildren, should take a distributive share in that portion of the estate. . They can only
I have therefore arrived at the conclusion that the plaintiffs took no interest in the premises in question under the will of Casper Samler. And that the judgment of the supreme court was right, and should be affirmed.
Senator Franklin also delivered an opinion in favor of affirming the judgment of the supreme court.
The testator devised his farm to his grandchildren, and denominated the children of his step-daughter Margaret, his grandchildren. In his will he made the same provision for his step-daughter, in the distribution of his personal estate, as for his other children, but in the last devising clause he provided as follows; “ And it is further my will that in case of the death of any of my said children, or of my said step-daughter, then the share or portion of my estate which by this my will would have gone to such issue, be divided equally
It is upon the construction of this last clause,that the main question in the present case arises. One of the daughters, Barbary, died without issue. The contingency contemplated in the will therefore happened, and the question is, whether Margaret, the step-daughter, or her children, are survivors within the intention of the testator? If Margaret be intended, then the plaintiffs (Margaret being dead) are entitled to recover under a title by descent as her heirs. If she be excluded and her children included in the term grandchildren, then they take by a direct devise. But if neither are included under that term, then the plaintiffs are not entitled to recover, and the judgment below must be affirmed.
This leads us to inquire who the testator intended to include under the denomination, of grandchildren ? Or, to pirt the question more explicitly, did he intend to include the children of Margaret under that denomination ? The learned judge, in delivering the opinion of the court below, admitted that, for the purposes of the first devising clause, her children were called grandchildren, and that the testator intended this word tp include them as such.
This is the main devising clause, as in it the testator has disposed of his entire real and most of his personal estate. It is here therefore that we must look for the testator’s testamentary definition and application of the . term grandchildren. It is admitted on all sides that he was at liberty to affix bis own definition to the words employed by him in designating and classifying his devisees, unless this would involve a legal repugnance. : and when he has thus adopted his glossary, it must, prevail throughout the instrument, unless in a- subsequent part he expressly excludes it. (Shelley v. Bryer, 1 Jac. R. 207.) The term grandchildren, therefore, must comprehend the same class of persons in the last as in the first devising clause, and this would make the children of the step-daughter Margaret co-survivors of his deceased daughter Barbary with his other children and grandchildren.
The testator had 'divided his real estate, consisting of his farm of forty-seven acres, into five portions or lots, which he numbered one, two, three, four and five. Four of these divisions contained a trifle less than six acres each, which he devised to the children of his step-daughter and of three of his other daughters: and the other division he had subdivided into three portions, one of fen acres and another of about six, which he gave to the c.n dren of his son John, and of bis daughter Barbary, if she should have any; leaving. a residuary portion of his real estate, containing a number of acres, undisposed of Arid as he had given the greater part to his grandchildren, he intended, as appears in a subsequent clause, to distribute this residuary portion among his children. If, therefore, according to the hypothesis of tne learned judge, that particular devise had terminated with the word “ farm,” it would have carried over the whole real estate to his grandchildren. To ..prevent this, it became necessary, therefore, to explain what he meant by farm, and to render his object clear and his whole devise consistent, he added the words “ to wit,” and then pointed out the specific quantity that each class of grandchildren should receive.
It is admitted that, as a legal proposition, the explanation that followed saved the rights of Margaret’s children, but it requires an effort of the mind to suppose that it was introduced for that
But after the introduction of the word “grandchildren” in the first devising clause of the will, it is not found again or even referred to until used to designate the persons that may take in right of survivorship: and here again it is used in the same general and unlimited sense. Nothing appears in any part of the will to limit or restrict its application to a class of persons less numerous than that to which it is applied in the first clause; and it is preposterous to contend that any limitation or restriction can be implied short of the introduction of some express term of limitation. In the absence of this, the same definition must attach wherever the word occurs in the same instrument. (Shelly v. Bryer, 1 Jac. R. 207.) The inference therefore is irresistible, that the testator intended to use the word “ grandchildren,” in the last clause, to include the same description of persons to which It extended in the first.
The court below was of a different opinion, however, holding that the word was restricted to its ordinary technical import, after' its use in the first clause. And to sustain this view a number of cases were referred to from the English books, the principal one of which has already been cited. I
The testator in that case bequeathed his estate to trustees with directions to .sell it and invest the proceeds in government securities, the annual interest to be paid to Susannah Shelly, his sister, during her life; and after her decease, the residue to be divided equally between his nephews and nieces. Subsequent to the execution of this bequest, Harriet Shelly, the plaintiff, a grand-niece of the testator, was born. By a codicil he bequeathed to the plaintiff, whom he called his mece, £500 over and above her share, after the death of his sister, referring in the codicil to that provision in the main devise creating the remainder to his nephews and nieces. At his decease there were several nephews and two grand-nephews living, but no niece or grand-niece except the plaintiff. The tenant for life, Susannah, died ten years after the decease of the testator, leaving several grand-nephews and grand-nieces surviving who were born after the death of the testator. On the distribution of the estate, the plaintiff, under the testamentary denomination of niece, claimed a distributive share by virtue of the codicil, and the question was whether she rvas entitled to take as' one of the legatees. On the hearing, Sir Thomas Plumer, master of the rolls, confessed his embarrassment in arriving at a satisfactory conclusion. He conceded that the testator, by calling the plaintiff, his niece, had made her so in law: but added : “ The difficulty is, that if the words are to be extended with respect to the plaintiff, the same must be done as to the other great nephews and great nieces, and both the classes, including parents and children, must take together under the same denomination. But it would be contrary to the authorities to interpret a term having an appropriate application to one class, as extending to two classes, comprising both parents and children.” The plaintiff was accordingly allowed only the £500.
• That case was decided against the claimant upon the well settled rule, that where the intention of the testator, if followed
If the views here presented are correct, there can be no doubt that the testator intended, under the word “ grandchildren,” used in the last devising clause, to include the children of Margaret. But whether the plaintiffs shall take by a direct devise, or whether their claim rests upon another species of title, is to be ascertained by the settlement of a further question raised in this case.
In the last devising clause of the will the testator provides that, in case of the death of one of his legatees, without issue, the portion which such issue would have taken shall pass’to the survivors of his children and grandchildren. Was Margaret, the testator’s step-daughter, intended to be included under the denomination of children ?
There is certainly much inferential evidence disclosed by the will of the testator’s intention to provide for Margaret as one of his children; but so far as words represent intentions, the legal import makes strongly against her claim. True, he
Whatever might have been the design of the testator, and however strongly and plainly his intention may be indicated in other portions of the will to include Margaret as one of his children, for the purposes of the right of survivorship, the terms used are too strong and unequivocal to admit of a construction different from their legal import.
The plaintiffs have therefore a right to recover under a title derived directly from the devise, and the judgment below should be reversed..
The case is shortly this. The testator, after _ a life estate to his wife, devised his farm to his “ grandchildren,” to wit, to the children of his step-daughter Margaret one parcel, to the children of his daughter Susannah one parcel, to the children of his daughter Elizabeth one parcel, to the children of his son John another parcel, to the children of his daughter Barbara, if she should have any, another parcel, and to the children of his daughter Mary, if she. should have any, another parcel. After other provisions, the testator further wills that in case of the death of any of his said children, or of his said step-daughter, without lawful issue, the share of his
It is conceded that the testator has declared that by the term “ grandchildren” in the first clause, he means to include the children of his step-daughter, and that they must take under that clause; but it is denied that they take any thing under the latter clause. The testator having in the commencement of his will declared what he means by the use of certain words, I see no reason why the same meaning should not be attached to the same words throughout the will, unless he-has declared a different meaning to be given to them in other places. If the latter clause had followed the first in immediate connection, as I think it might, without affecting the general purpose as regards the real estate, the question could hardly have arisen. The latter clause provides for the disposal of the property mentioned in the first clause, in case of the death of any of his children or of his step-daughter without issue’; and I see no reason to suppose that the testator intended to attach a different meaning to the words used in the last clause from those used in the first. I discover no reason why a different meaning should be given because, for convenience in drawing the will and to include the contingent disposition of the personal property, the latter clause is disconnected from the former.
The expression “ in the same proportion as hereinbefore mentioned,” used in the latter clause, cannot so well be explained upon any other view of the case. The share which upon the death of any party would go to others could not go in the same proportions, that is of sixths previously mentioned in regard to' personal property; for the division could only be into fifths or some less shares. I think the expression was intended to indicate that the children of his step-daughter were to be included among his grandchildren in the same manner as thereinbefore mentioned.
A difficulty was suggested in my mind arising out of the pleadings, but I discover that it is avoided by a stipulation contained in the bill .'of exceptions that judgment be rendered as
With the views I have expressed of the intention of the testator as they appear in the will, I think the judgment below should be reversed.
Senator Root also delivered an opinion in favor of reversing the judgment of the supreme court.
On the question" being put, “Shall this judgment be reversed ?” the members of the court voted as follows:
For reversal: Senators Dixon, Ely, Hard, Hopkins, Lawrence, Lott, Putnam, Rhodes, Root, Sherwood, Strong, Works and Wright—13.
For affirmance: The Chancellor and Senators Bart-lit, Bockee, , Chamberlain, Denniston, Deyo, Franklin, Mitchell, Platt, Porter and Scott.—11.
(a).
For this maxim and its application see Broom’s Legal Maxims, 298, 9, and the cases there cited.