In re the Judicial Settlement of the Accounts of Tenney

Ingraham, J.:

The question upon this appeal depends upon the construction to be given to the 6th clause of the will of George J. Foster. The, will was admitted to probate by the surrogate of New York county-on the 16th day of November, 1876. After making specific legacies and giving to his executors a power of sale of his real property the testator directed his executors to divide his residuary estate as follows: One-third of his residuary estate he gave and bequeathed to the children of his deceased sister Caroline, “ or such of them as shall be living at the time of my death and the issue then living of any deceased child of my said sister in equal shares as to each child of my said sister, the issue of such deceased child taking by representation the share which their parent would have taken if living.” Out of the other two-tliirds of the residuary estate the testator directed his executors “ first, to make or set apart a separate investment upon good and lawful security of the sum of Fifty thousand dollars to be held by them upon trust to apply the entire net income thereof to the sole and separate use of Mrs. Eliza R. Foster, the widow of my deceased brother Samuel H. Foster, during her life to be paid quarterly as near as conveniently may be — and secondly to set apart the further sum of Twenty-five thousand dollars which is to be added to the share hereinafter directed to be held in trust for the use of my niece Mrs. Margaret Beeckman.” The residue of the said two-thirds of his residuary estate the testator directed his executors to divide into as many equal shares as there should be ■children, of his said brother Samuel H. Foster living at the time of the testator’s death, “or who' shall have died.in my lifetime leaving issue me surviving; to be set apart and designated to them respectively.” It is then provided by the 6til clause of the will as follows: ‘‘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 use 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 -bin 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 *o 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 the persons who shall be' entitled thereto ■under the foregoing provisions of this Article.”

By the: 7th clause -of his will the testator left the shares of the residue of the two-thirds of his residuary estate' set apart for the other children of his brother Samuel H. Foster who should survive him, to his 'executors in trust, to apply the income of the respective shares to the use of the several children of his -said brother, to whom respectively the same shall have been set apart during their respective lives, and upon the .death of each of said children his share so, set apart to go.and be paid or transferred to his issue, and in default of issue, to liis next of kin in such proportions as they would.severally be entitled to- under the laws of the State of New York upon distribution of personal estate belonging to him Upon his dying intestate;

By the 8th clause of his will the testator provides that the shares that should be set .apart and designated for the issue óf any deceased children of his/said brother should be held in trust by bis executors for such issue and ..the whole net income thereof applied "to the usé of such issue, “(descendants of children taking only their parent’s share, by representation) during the lives of the said Eliza R. , Foster and Margaret Beeckman and upon the death of the longest liver of those two persons the said shares respectively shall go and be paid over or transferred to such issue respectively if then living and if not then living to their next of kin.”

And by the 9th clause of the. will the testator provided that upon the death of. the said Eliza R. Foster the said sum of $50,000 held in trust for her shall be apportioned equally among and added to .the several shares of the other portion of the said two-thirds of bis residuary estate, and remain in trust to be otherwise disposed of and paid over, precisely as if it had originally formed a part of the said shares respectively.

At the time of the death of the testator there were living ten children of his brother Samuel H. Foster, so that on the death of Eliza R. Foster the trustees under this will held in trust for Margaret Beeckman, who was also one of the children of Samuel JL Foster, the sum of $25,000, and also one-tenth of the sum of $50,000 that was held in trust for Eliza R. Foster during her life, and also one-tenth of the residuary estate of the testator under the 4th clause of his will, which amounted to the sum of $1,052.05.

Margaret Beeckman died on the 19th of April, 1904, leaving her surviving four children. No child of Mrs. Beeckman died during her life leaving issue, but these four children had living at the. time of Mrs. Beeckman’s death eight children who were grand- ' children of Mrs. Beeckman, their parents still living. Mrs. Beeckman also left a will which was admitted to probate by the surrogate of the county of New York, and the first question is whether by this will she exercised the power of appointment given by the 6th clause of the will of George James Foster. The surrogate held that Mrs. Beeckman did not attempt by her will to exercise tfye power of appointment contained in the 6th clause of the will of George J. Foster, and in that we concur. By this will Mrs. Beeckman gave all her estate, real and personal, to her executors in trust, to pay the rents, income and profits equally to each of her children who should survive her, share and- share alike, during the term of his or her natural life, with remainder over to such person as her said children should appoint by a last will and testament. The power given to Mrs. Beeckman by the 6th clause of the will in question was to “ alter and regulate at her discretion the proportions in which the same shall be distributed among the persons who shall'be entitled thereto ” under that clause of the will. The only powér that she had, therefore, under this clause of the-will was to ■ determine the proportions in which the sum held in trust for hér. . should be distributed .among her issue. She made no attempt tó exercise this power of appointment, and a bequest to her executors in trust of all her estate was not an alteration or regulation of the . proportions in which the sum held in trust for her was to be distributed. The “ issue,” therefore, of Mrs,. Beeekma'n take under tjhe '6th clause of the testator’s will.

. The remaining question is as to the persons intended to be designated by" this clause of the will as the issue of Margaret Beeckman.. The testator used the word. “ issue ” in several clausés of the will. Thus, in" the 2d clause, in, providing for the one-third of Iris' residuary éstate- which was bequeathed to the children of- Ins deceased sister Caroline, he gives and bequeaths the one-third of his residuary" estate to the children of his deceased sister “ and . the issue then living of any deceased child,” the issue, of' such deceased child taking by representation the share that their parent would have taken if living; "thus providing that the issue shall take by .way' of representation, so that.tihe share of a deceased -child would go to the issue of such deceased child. By the 4th clause of the will the word is used in the same connection, evidently intending 'to substitute the issue óf a deceased nephew in place of a nephew dying before." the testator. By the 7th clause of'‘the will ■the word is used' in the same connection, the issue of a nephew or niece to take the share set- apart for the nephew, or niece dying. There would thus seem to be an express- intention of the testator to substitute for a beneficiary in whose favor a life estate was created the issue of such beneficiary upon the beneficiary’s death, and in each case the share of the parent is,to be' divided equally, share and share alike, among the parent’s issue, disclosing, as I view it, an intent that the issue should take by way of ^representation, so that thére should be an. equal distribution of a share of a deceased beneficiary, for whose benefit a life estate is established, among those succeeding to the right of the beneficiary for life.- Such equal distribution ^could o.nly take place if .the word “issue” was used as meaning children, the. issue of a- deceased child to- take its -parent’s share. • ■ ■

The distribution which would, follow from the construction given by the court below would be extremely unequal. 1 Mrs. Beeckman has four children; two of them have no' issue,-while - the other two have eight issue living. If all of these descendants of Mrs. Beeckman are to share equally, Mrs. Lorillard and her children woitld have four-twelfths of the fund, Mrs. Steward and her children would have six-twelfths of the fund, while the two other children would have one-twelfth each, a distribution which would be con- ' trary to' the intention of the testator as I gather it from the will. In each case he provides that in default of issue of a beneficiary for life, the property should go to the next of kin of the life beneficiary where it would be distributed upon ajprinciple of representation; and I think, therefore, taking this will as a whole, we can see running through it an intention of the testator to distribute these shares upon the death of his nephews and nieces' who have a life interest equally among those who succeed them. Thus, we have the indication that the testator did not intend to give to the word “issue” that primary significance that it, received at common law, that is, descendants generally. .

In Drake v. Drake (134 N. Y. 220) the testator, gave certain real property to an adopted ■ daughter, Mary Hopeton Drake, for life, with a power to appoint by her last will and testament, to either of his three sisters, or to all or any or either of .the lawful issue of his three sisters, from and after the death of the life tenant, and in sucli shares and proportions as she might think proper. 1 His sisters died before the life tenant, some of them leaving children and grandchildren, and the life tenant attempted to execute the power of appointment in favor of certain grandchildren of the testator’s sisters while the parents of these grandchildren were alive. The court held that the meaning of the word “ issue ” in this will was synonymous with descendants and that the appointment was valid ; but in this case it will be noticed that the testator intended to give .the right to appoint during the lives of his sisters to the sisters or the sisters’ children, thus clearly indicating that there was no idea of equal distribution or representation in his mind ; that it was not intended that the child should stand in the place of'a deceased parent, because the children of his sisters were to have a right to receive the estate in case of an appointment in their favor during the lifetime of the sisters ;■ that it was' a class that was created from . which the grantee of the power was to select and this class included the testator’s sisters and their descendants. In that .cáse, in dis-^ cussing the ■ meaning to be given to the word • “ issue,” Judge Bradley says: “The word" “issue ’ maybe a word either of pnrfcliase or limitation, and will be. construed the -one or the other as-may be necessary to effectuate the intent with which it appears to have been used-in-the instrument where it is employed.”

In Palmer v. Horn (84 N. Y. 516) Judge Earl speaks of the word “ issue ” as an ambiguous term.' He says that it may mean descendants 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 or the entire will, or such ^extrinsic circumstances .as can be considered.

In Soper v. Brown (136 N. Y. 244) there was a bequest to the testator’s daughter for life, and upon her death the ¡iroperty was to go “ in fee simple as tenants in common to the lawful issue of my said daughter Eliza;, if -more than one, share and share alike:” 'Eliza died having had two children who died before her. but after-the testator.. The surviving descendants' of Eliza were, two ■ children of a deceased son of Eliza, three children of a deceased daughter-of Eliza, and three children' of a deceased child of the deceased-daughter of Eliza. Thus, the descendants of Eliza living at 'her death were five grandchildren and three great grandchildren. ' It was claimed that “ issue ” was here intended as* synonymous with children, and that the grandchildren, although■ their parents were dead, were not entitled to share in the estate* but the court held' that' issue included grandchildren as well as children.

In Chwatal v. Schreiner (148 N. Y. 683) the word “ issue ” was held to mean children rather than remote descendants, because, the testator in one clause of the will had given a definition of the word ■ as meaning that the issue were to take by way of representation the-' estate of the respective parents, and that the testator having thus disclosed his- intention,, the word “ issue ” in the other part of the will would be given a similar meaning. Here, in the second clause of the will the testator expressly provides that .'the issue of a child ' -of his deceased sister was to take by way of representation the shares which their parents would have taken if living. Here he had in ■ mind the idea of issue taking by way of representation, and I think that in repeating this clause, where provision is made for the issue of his niece Margaret, he uses the word “issue” in the same sense, intending that Margaret’s children should take, if alive, or, if./me of them had died leaving issue, that such issue should take by way of representation. , There is no evidence that Margaret’s grandchildren were alive when the will was made, nor is there proof of any facts from which an intent to benefit them at the expense of Margaret’s children can be inferred. The testator was making provision for a . distribution of his estate in the event that Margaret did not exercise the power of appointment that he had given her, and I think it may fairly be inferred that the intention was to divide the trust fund equally among her children, the issue of a deceased child taking by representation.

The conclusion at which we have arrived results in a modification of the decree of the surrogate by providing that this fund held by the trustee be divided equally among Margaret’s children, and as so modified the decree is affirmed, with costs to the executors and the appellants payable out of the estate.

Yan Bbunt, P. J., and McLaughlin, J., concurred; Patteeson and Laughlin, JJ., dissented.