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Holbrook v. Shepard

245 N.Y. 618 Court N.Y. Decision date 1927-06-21 English

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p. 618
Edna G. Holbrook, Respondent, v. John W. Shepard, as Executor of Richard H. Greene, Deceased, et al., Defendants, and Anna S. Greene et al., Appellants.
(Argued June 7, 1927;
decided June 21, 1927.)

Headnote

Will — gift of remainder “ to my grandchildren or child if there are any living ” —grandchild takes all to exclusion of children of deceased grandchild.
Holbrook v. Shepard, 220 App. Div. 64 , affirmed.
Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial-department, entered April 5, 1927, which unanimously affirmed an interlocutory judgment of Special Term construing the will of William W. Greene, deceased. Testa
p. 619
tor by bis will gave bis property to his son for life and on his death “ to my grandchildren or child if there are any living if there are none living then to my legal heirs in a legal way.” At the death of the son there were surviving, heirs of testator, one grandchild and two children of a deceased grandchild. The trial court held that the grandchild took the entire estate.
The following questions were certified:
“ 1. Under the last will and testament of William W. Greene, deceased, did the remainder of bis estate vest in his two grandchildren, Marshall W. Greene and the plaintiff, at the death of the testator, William W. Greene?
“ 2. Under the last will and. testament of William W. Greene, deceased, did the entire remainder of his estate vest absolutely in the plaintiff at the death of the life tenant, Richard Henry Greene?
“ 3. In construing the last will and testament of William W. Greene, deceased, is the word ' child ’ in the sentence reading ‘ After the' death of my son R. H. Greene, I will it to go to my grandchildren or child if there are any living if there are none living then to my legal heirs in a legal way ’ to be construed as synonymous with the word ‘ grandchild? ’
“ 4. Has the defendant Anna Schoonmaker Greene any right, title or interest in the estate of William W. Greene, deceased?
“ 5. Has the defendant Mary Winslow Greene any right, title or interest in the estate of William W. Greene, deceased?
“ 6. Has the defendant Richard Schoonmaker Greene any right, title or interest in the estate of William W. Greene, deceased? ”
Richard T. Greene and Malcolm C. Law for appellants.
Clarence De Witt Rogers for respondent.

Judgment affirmed, with costs payable out of estate; second and third questions certified answered in the

p. 620
affirmative; fourth, fifth and sixth questions answered in the negative; first question not answered; no opinion.

Concur: Cakdozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.