Patchen v. Patchen — 1 N.Y.S. 913

Majority

p. 913

Patchen v. Patchen et al.

(Supreme Court, General Term, Second Department.

June 25, 1888.)

Headnote

Will—Construction—Devise to Children.

Under a devise of one undivided third part of testator’s real estate to his widow for life, and upon her death to his “children equally, who may be then living, and to their heirs and assigns forever, ” where a vested estate has been given to his children in equal shares in the remaining two-thirds of the realty and in all the personalty, the land, upon the death of the widow, does not pass to the surviving children, but to the survivors and to the heirs and assigns of such as have previously died, there being nothing to indicate that the testator did not intend that his children should share such third equally also.1

1 Respecting the construction of wills, and when the Interests thereby created are vested, and when contingent, see Chasy v. Gowdry, (N. J.) 9 Atl. Rep. 580 ; Parker v. Glover, Id. 317; Appeal of Reed, (Pa.) 11 Atl. Rep. 787 ; Wiggin v. Perkins, (N. H.) 5 Atl. Rep. 904 , and note; Davidson v. Bates, (Ind.) 13 N. E. Rep. 687 , and note; Lenz v. Prescott, (Mass.) 11 N. E. Rep. 933 ; Dodd v. Winship, Id. 588; Williams v. Williams, (Cal.) 14 Pac. Rep. 394 , and note; Roundtree v. Roundtree, (S. C.) 3 S. E. Rep. 474 ; Wills v. Wills, (Ky.) 3 S. W. Rep. 900 , and note; Appeal of Churchman, (Pa.) 13 Atl. Rep. 600 ; Commons v. Commons, (Ind.) 16 N. E. Rep. 830 ; Commons v. Commons, (Ind.) 17 N. E. Rep. 371 . v '

Appeal from special term, Kings county; Calvin E. Pratt, Justice.

This was an action brought by Edward E. Patchen, one of the devisees in remainder of an interest in land under the will of his father, Henry Patchen, to obtain a distribution of the proceeds of that estate, the life-tenant having died; and from the decision of the court below he appeals.

Iiolfe c6 Snedeher, for appellant. Stephen Condit, guardian ad litem,, ( William C. De Witt, of counsel,) for respondents.

The testator gave a life-estate in one-third of his real estate to his widow for life in lieu of dower. The premises in question were set apart to her. She died in 1881. The question is as to the title to the remainder after the life-estate fell in. The clause of the will is as follows: “I give and bequeath to my wife, Maria E., the one undivided third part of my real estate of which I shall die seized, for tier natural life. Upon her death said third shall go to my children, equally, who may be then living, and to their heirs and assigns forever.” At the time of the death of the testator he had five children, and three of these died before the widow. The two surviving children claim the whole estate, and the claim is denied by the chil

p. 914

dren of those who died before their mother, leaving children. The first fact to be observed in respect to the intent of the testator consists of the rigid equality among all his children in respect to the property of testator, real and personal, except that in question, even to the value of their watches, given to each child by the will. The ordinary principle is against inequality, and this.principle is aided by the will itself in its other provisions. No reason is apparent why a vested estate is given to all his children as to two-thirds of his realty and as to all his personalty, and an exception intended as to this one-third of the land. None is indicated as to any particular child; but, under the rule that where a devise is made to a class, the survivor takes the whole to the exclusion of the children of those who died before the contingency happens upon which the class were to take, if the intent is clear from the will that the survivors were to take, it must be observed. Is it clear? It does not seeem to be so. The words may carry that meaning upon a strict grammatical construction, but every word in the will, if possible, must have its proper effect and bearing upon the construction. The case closely resembles In re Brown, 93 N. Y. 295 . The words, “to my children, equally, who may then be living, and to their heirs and assigns,” in view of the facts of the case, and under the rules of Matter of Brown, mean this: to the children who are living at the death of my wife, equally, and to the heirs and assigns of such as have previously died leaving children, and who have sold their vested remainder. The judgment should be affirmed, with costs.

Dykman, J„ concurs.

Cases cited

In re the Estate of Brown 93 N. Y. 295 N.Y. 1883-10-02 p. 914