Hilliker v. Bart

ceased. The testator first directed payment of his debts; second,, he bequeathed to his wife, in lieu of dower, the use, income, and interest of $10,000 for life, and- upon her decease the said sum to his son, Henry, to him and his lawful issue him surviving, forever; third, gave certain household furniture to his wife, and then provided : “(4) All the rest, residue, and remainder of my estate, both real and personal, I give, devise, and bequeath unto my son, Henry L. Nostrand, and his lawful issue him surviving, forever.” He appointed his sister and his said son executors, and provided, in case it became necessary in the settlement of his estate for them to convey the whole or any portion, that they should have power to execute to the purchasers of the realty good and sufficient conveyances thereof. It does not appear that there evei; had been, or that there now is, any issue of Henry E. Nostrand. The general sense of the word “issue” includes all descendants. It has the same practical effect as the words “heirs of the body.” Chwatal v. Schreiner, 148 N. Y. 684 , 43 N. E. 166 ; Drake v. Drake, 134 N. Y. 220 , 32 N. E. 114 , 17 L. R. A. 664 ; Soper v. Brown, 136 N. Y. 244 , 247, 32 N. E. 768 , 32 Am. St. Rep. 731 ; Kingsland v. Rapelye, 3 Edw. Ch. 1 ; Schouler, Wills, 554. When employed to describe a devise to a person and his issue, it is considered as a term of limitation, not of purchase. Drake v. Drake, supra. The term, however, has been said to be “ambiguous,” so that, notwithstanding its prima facie meaning as a word of limitation, it may be construed as a word of purchase when such intent is to be gathered from the context or from the provisions of the will. Authorities supra. I find nothing in context nor in any part of the will in this case that would justify a departure from the prima facie meaning of these words. I think that they were used as an expression of limitation for the vesting of the-fee in Henry E. Nostrand. While, of course, this use was not necessary, it is “quite common,” with the purpose of greater definition, or for greater certainty, or by way of precaution. Thurber v. Chambers, 66 N. Y. 42 ; In re Allen, 151 N. Y. 243 , 45 N. E. 554 ; Clark v. Cammann, 14 App. Div. 127 , 43 N. Y. Supp. 575 . We are therefore of opinion that Henry L. Nostrand took a fee simple absolute in the real estate devised by the fourth paragraph of the will, and' that when the said Henry E. Nostrand tendered the deed.of the premises herein to plaintiff, and when he delivered such deed to plaintiff,, he was so seised, and had a good and valid title thereto.

It follows from the terms of the submission that the plaintiff must have judgment of performance against the defendant, without costs. All concur.