Patchen v. Patchen — 31 N.Y. St. Rep. 297

Majority

p. 297

Edward F. Patchen, App’lt, v. Mary E. Patchen, Resp t.^[1]

(Court of Appeals,

Filed June 3, 1890.)

Headnote

Will—Construction of.

Testator, by his will, gave his widow a l'fe estate in an undivided third part of his real estate, and upon her death devised said third “to my children equally, who may then he living, and to their heirs and assigns forever.” The widow died in 1881, leaving two of the five children surviving, besides infant children of one of the sons who died in his mother’s life-time. Held, that the word “their” referred to the children living at

p. 298

the date of the widow’s death; that the grandchildren were provided for hy their parent’s share of the two-thirds, but took no part of the widow’s one-third.

Appeal from judgment of the supreme court, general term, second department, affirming judgment of special term in favor of plaintiff.

William iS. Cogswell, for app’lt; William C. Be Witt, for resp’t.

The testator died in 1849, leaving a widow and five children. By his will, he gave to the widow an undivided third part of his real estate for the term of her natural life, and upon her death devised that third in these words, viz.: “ to my children equally who may then be living, and to their heirs and assigns forever.” The widow died in 1881, and only two of the five children survived at that date. They now claim the whole of the one-third which was devised to the widow for life, but are resisted by the infant children of one of the sons who died in his mother’s life-time. It is asserted in their behalf that upon a true construction of the will they took their father’s share, which can only result from a vested estate in him, the enjoyment merely of which was postponed, a contention not made and impossible to sustain; or by reading the will as an alternative devise to the children if living at the death of the widow, or if dead, then to their heirs and assigns. Grammatically and naturally the language will not bear that construction. The immediate antecedent of the word “ their,” to which it must refer, is the children then living, that is at the date of the widow’s death, and it is to them, and their heirs and assigns, that the land is given. There is no ambiguity about the language used; its meaning is obvious and plain; and while sometimes the grammatical and natural interpretation may not control, it would be in a case where some contrary purpose was evinced by the will, and the testator’s intention fully understood and clearly indicated compelled a different construction. Hothing of the kind appears in the present will.

The testator provided for the five children by giving them in equal shares the two-thirds of his property not reserved to the widow. He knew how to do that, and used effectual and appropriate language for that purpose. It is said that all’ the provisions of the will outside of that in question point to a purpose of equality of division among the children and negative an intention to discriminate and prefer. But these provisions do not show any more clearly and certainly an intention to divide the two-thirds equally, than do the prior words an intention to give the one-third to those living at the death of the mother. Grandchildren are not mentioned, but were not neglected. Their parents took vested estates in the undivided two-thirds, and their shares were descendible and devisable, and there is nothing on the face of the will or in the situation to satisfy us that the testator did not mean exactly what he said. The general term seem to have founded their conclusion upon our decision in Matter of Estate of Brown, 93 N. Y., 295 . But that will was quite different. There was an ambiguity in the words which threw doubt upon the in

p. 299

tentioil, had made ,a necessary. were “upon the death an7 or m7. said daughters I give, devise and bequeau1 such chid or children as my said daughter shall have, or leave llJmS afc her decease- . solved the ambiguous expression byreference to other provisions of the will, and to the preference wlm> th<?law fives .to the participation of issue in a remainder. Bu * ^®re there is no ambiguity either in the words of devise or raises ej other terms of the will. Nothing in its language indicates any intention on the part of the testator different from that which his deviJ6 the one-third, read its natural and ordinary sense, explicitly u celares. And so we are not at liberty to transpose or change the s , ™e d®vl?et Wylie v. Lockwood, 86 ^N. Y., 297, or give to Ük7 aeir® and assigns ” a substitutional or alternative e&Sk Matter of Wells, 113 N. Y., 399 ; 22 N. Y. State Rep., 717.

_ The judgment should be reversed and a mew trial gBSBteo, costs to abide the event.

All concur.