Majority
p. 371Mary S. Kernochan, Respondent, v. Eweretta C. Whitney and Others, Respondents, Impleaded with Stephen S. Whitney and Others, Appellants. First Department, April 10, 1908.
Headnote
Will construed — 66 issue ” defined—when remaindermen take per stirpes.Where a will gives a remainder per capita in equal portions to all living grandchildren, “including the issue of any grandchild or grandchildren then deceased, leaving issue then alive who shall take the same share together if more than one, which such deceased parent or parents would have taken if living,” the living issue of deceased grandchildren take per stirpes.
Although the technical meaning of the word “ issue ” is equivalent to the word “ descendants ” and in the absence of other words or extrinsic circumstances entitles remaindermen to take per capita, they are not entitled so to take where
the whole will shows that the testator intended otherwise.
Appeal by the defendants, Stephen S. Whitney and others, from various portions of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 31st day of December, 1907, upon the report of the referee determining the title to real estate and directing a sale in an action for partition.
Bronson Winthrop, for the appellant Charlotte Greenough, and guardian ad litem for the appellants Stephen S. Whitney and others.
John M. Shedd, for the appellant Louise M. Manice.
Henry F. Miller, for the respondents Eweretta C. Whitney and others.
J. Frederic Kernochan, for the plaintiff, respondent.
Alfred G. Reeves, for the respondents John P. C. Alden and another.
We are entirely satisfied with the conclusion reached by the referee and deem it necessary to add but a single suggestion to the reasons assigned by him.[1]
. It may be conceded, as contended by the appellants, that the word “issue” in a strictly technical meaning is equivalent to
* For referee’s opinion, see N. Y. Supr. Ct„ Cases & Briefs Counsel (State Law Lib.), Vol. 6956, No. 4, pp. 148-153.— [Rep. ,
p. 372
the word “ descendants ” and when such word is used in a will ■—■ in the absence of other words or extrinsic circumstances requiring a different meaning — entitles the remaindermen to take per capita and not per stirpes. It seems to us perfectly clear that the word “issue” was not used in this technical sense in the 15th clause of the will under consideration. The testator intended by the use of that word that it was to have a less extended meaning and to be applied only to descendants of a particular class at a particular time. (Palmer v. Horn, 84 N. Y. 516 .) After providing, in a way which cannot be misunderstood, for a per capita taking in equal portions by all living grandchildren, he used words which unmistakably indicate that he intended that the issue of any grandchild who had died prior to such taking should take only the share which the parent would have taken if living. “ Including,” he says, “ the issue of any grandchild or grandchildren then deceased, leaving issue then alive who shall take the same share together if more than one, which such deceased parent or parents would have taken if living.” He knew his grandchildren; he had named them in the 4tli clause of his codicil; these were the persons he particularly had in mind and he desired they should share equally in the corpus of his estate; that if any of them died before the termination of the trust created for his children, leaving issue, then such issue should represent — that is, take the place of — the grandchild who would have taken if living. The words “ who shall take the same share together if more than one, which such deceased parent or parents would) have taken if living,” when taken in connection with the testamentary scheme of the testator, indicate that he intended to treat the child or children of each grandchild as one class and to divide the remainder equally among the different classes. (Matter of Keogh, 112 App. Div. 414 ; affd., 186 N. Y. 544 ; Vincent v. Newhouse, 83 id. 505.)
The judgment appealed from is affirmed, with costs to each of the respondents who submitted briefs on this appeal, payable out of the estate.
Present — Ingraham, McLaughlin, Clarke, . Houghton and Scott, JJ.
Judgment affirmed, with costs to each of the respondents who submitted briefs on appeal, payable out of the estate. Settle order on notice. 1
Cases cited
- Palmer v. Horn 84 N. Y. 516 p. 372
- In re Keogh 112 App. Div. 414 p. 372