Davis v. Davis — 29 N.Y. St. Rep. 41

Majority

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Charles Davis, Resp’t, v. Isabella M. Davis et al., App’lts.^[1]

(Court of Appeals, Second Division,

Filed January 31, 1890.)

Headnote

WILL—COXSTRUCTION OF—SURVIVOR.

The will through which the parties to this action acquired title contained the following devise : “ I give and Bequeath ail my real estate in fee simple to my three sons, Henry Davis, Charles Davis and James Albert Davis, and the survivor and survivors of them in case either die before me, leaving issue.” Henry and James died prior to testator’s death, the former only leaving children. Reid, that the share of James vested in Charles, the "survivor,” and the share of Henry went to his children.

Appeal from a judgment of the general term of the supreme court, second department, affirming a judgment of the county court of Kings county.

James R. Steers, Jr., for app’lts; George V. Brown, for resp’t.

This action was brought for a partition of real property. The interlocutory judgment adjudged the plaintiff’s interest in the real estate sought to be partitioned to bo an un

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divided two-thirds, and that of the three defendants an undivided one-ninth each. A review of the judgment, in such respect only, is sought by this appeal.

The title of the parties to this action was acquired through the last will and testament of Henry Davis.

The devise was as follows: “ After all my lawful debts are paid and discharged I give and bequeath all my real estate in fee simple to my three sons, Henry Davis, Charles Davis and James Albert ' Davis, and the survivor and survivors of them; in case either die before me leaving issue, the share of such deceased child shall go to such issue.”

Henry Davis died before the testator leaving him surviving three children, the defendants in this action.

Subsequently, but before the death of the testator, James Albert Davis died without leaving issue. Of the three sons, therefore, Charles Davis alone survived the testator.

And the question presented is: What share did Charles Davis, and the children of Henry Davis, respectively, take under the devise ?

We think the devise admits of but one construction. Primarily it was to the three sons, but in the event of the death of either' of the devisees without issue, then the devise was to the survivor or survivors of them. The word “ survivor,” in the connection in which it is used, relates to and is limited by a class of which the sons constitute the whole. It does not refer to the issue ■of one of that class.

James Albert Davis having died without issue, the share intended for him vested in Charles Davis, the sole survivor, upon the death of the testator.

The will also provided that in the event of the death of a son leaving issue, the share of such deceased child shall go to such issue.

Therefore, upon the death of Henry Davis, which occurred before the death of James Albert, as well as prior to that of the testator, his share was released to his children. As Henry Davis did not survive either the testator or James Albert, he did not take as survivor, and his children could only take the share devised to him, which was one-third.

As this view is in accord with that of the court below, the judgment should be affirmed.

All concur.