Soper v. Brown — 47 N.Y. St. Rep. 376

Majority

p. 376

Thomas Poole Soper et al., App’lts, v. George W. Brown, Ex’r, Resp’t.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Will—Issue of child.

One P., by his will, left certain real property to his executors under four separate trusts, in trust each for the life of a daughter with remainder in fee to her issue, and in default of issue to his grandchildren then living. He gave to plaintiff’s mother, whom he did not designate as a daughter, twenty-five dollars, gave the household furniture to two daughters, and the remainder of his personal property to the executors in trust for his four daughters and the survivor, with remainder to all his grandchildren. One of the daughters having died leaving grandchildren, but no children, Held, that the word issue was sufficiently broad to include remote descendants, and that the grandchildren of the daughter so dying took the real property held in trust for her.

Appeal from judgment in favor of defendant, entered upon a decision of the court.

Holmes & Adams, for app’lts; George R. Brown, for resp’t.

—This is an appeal from a judgment in favor of the defendant, entered upon a decision of the court.

The action was brought to recover a lot of land in the city of Brooklyn which was originally a part of a farm belonging to Thomas Poole, who died in 1831, seized and possessed of the premises, leaving a last will and testament, which has been duly proved and admitted to probate, by which he devised the farm including the property in question to his executors in trust to permit his daughter Eliza to occupy the same for and during her natural life in their discretion, or to rent the same during the same period and take and receive the rents and profits accruing from the same and therewith make all necessary repairs, and pay all taxes and other necessary charges and expenses in and about the same, and after deducting such payments to annually pay over the residue of the rents and profits to Eliza for and during her natural life, to her sole and separate use and benefit.

Then follows the clause which produces the contention in this suit, in these words : “And upon the death of my said daughter Eliza, my further will is that the aforesaid two dwelling houses and piece or parcel of land and meadows, and piece or parcel of land and woodland above described, and in this clause of my will devised for the use and benefit of my said daughter Eliza, with the appurtenances thereunto belonging, shall go in fee simple, as tenants in common, to the lawful issue of my said daughter Eliza, if more than one, share and share alike, and for want or in default of such issue, then to all my grandchildren who may then be living, as tenants in common, his, her or their heirs or assigns forever.”

Substituting the names of the other three daughters respectively and the descriptions of the other parcels of real property, there are three other devises in the same language.

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The residuary clause of the will provides for the conversion, of all the personal property into money and for the collection of all debts, so as to make one total sum, and after the payment of debts, legacies, etc., the residue is bequeathed to the executors in trust to°invest and pay and apply the income annually to Mary, Eliza, M trgaret and Sarah in equal shares during their joint lives and to the survivors and survivor of them; “ and after tlm decease of such survivor, my will is that the said moneys so invested or placed out at interest as aforesaid shall go to and be equally divided between all my grandchildren then living.”

Tilomas Poole, the testator, left him surviving four daughters to whom he gave life estates, and at his death Eliza had two children living, both of whom died during her lifetime leaving children, and Eliza died in 1882.

The plaintiffs in this action are the children of Letitia Soper, wife of Enoch Soper, who was a daughter of the testator to whom he gave a legacy of twenty-five dollars, and consequently the plaintiffs are two of the six grandchildren of the testator who were living at the death of his daughter Eliza.

The defendants derived their title from the grandchildren of Eliza and their contention is that the descendants of Eliza succeeded to the title under the word issue, while the plaintiffs claim that by the word issue the testator meant children.

The determination of the appeal therefore depends upon the ascertainment of the intention of the testator in the use of the word issue where it is employed in this will.

It is a flexible word whose signification is sufficiently broad to include remote offspring.

It denotes descendants much more naturally than the word children, and if the testator had intended to give the property to the immediate issue of his daughter he would have used the term children to manifest that design.

One fact remains yet unnoticed: The second item of the will of Thomas Poole is this; “ I give and bequeath unto Letitia Soper, the wife of Enoch Soper of Williamsburgh in the town of Bush-wick in the said county of Kings, the sum of twenty-five dollars as a small memento of my esteem.”

Letitia Soper was a daughter of the testator, as the parties admit, but the disclosure of the fact was studiously avoided by him in this bequest.

The third clause commences thus: “ I give and bequeath unto my two daughters Margaret and Sarah, all my household and kitchen furniture.”

The marked contrast between the two bequests shows a careful and considerate use of words.

Then by the next four items of his will the testator divided his real property into four parts, and gave a life estate in each fourth to each of his four daughters, Mary, Eliza, Margaret and Sarah, and the fee to their lawful issue.

Thus the testator excluded his daughter Letitia from any share of his real property, and divided it between Ms four daughters for

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their use and enjoyment during their respective lives with a limitation over in favor of their issue, and, it is a natural conclusion that he intended to give the shave apportioned to each daughter for life to their offspring immediate or remote, and not to the descendants of the child excluded.

We conclude, after a careful examination and consideration of the case, that the testator designed that the real property which he left in trust for each of his four daughters should at their deaths respectively go to their descendants.

We have not examined the question in the light of authority hecaush its solution depends so much upon the intention of the testator in the use of the word that we can derive but little aid from adjudicated cases.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs ; Cullen, J., not sitting.