Patchen v. Patchen — 17 N.Y. St. Rep. 725

Majority

p. 725

Edwin F. Patchen, App’lt, v. Mary E. Patchen et al., etc., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

1. Will—Construction of.

The testator, by his will, provided as follows: “I give and bequeath to my wife, Maria F., the one undivided third part of my real estate, of which I shall die seized, for her 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.” A rigid equality, in respect to the division of the other property among all his children, was provided by the will. Three of testator’s children died before his widow leaving children. Held, that in view of the facts, the testator intended to give, by said clause, the said property to the children who were living at the death of his wife

p. 726

equally, and to the heirs and assigns oí such as had previously died, leaving children, and who had sold their vested remainder. Following: In re Brow,, 93 FT. Y„ 295.

2. Same—Rxjle as to devise to a class.

The rule is 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.

Appeal from a judgment in favor of plaintiff, rendered at the Kings county special term.

Rolfe & Snedeker, for app’lt; Stephen Condit, guardian ad litem.

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 F., the one undivided third part of my real estate, of which I shall die seized, for her 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 children 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 provision. 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 seem 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 Matter of 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, means this: To the children who are living at the death of my wife, equally, and to their heirs and assigns of such as

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Rave previously died leaving children, and who have sold their vested remainder.

The judgment should be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.