Horatio N. Teed et al., Respondents, v. William Morton et al., Appellants

Horatio N. Teed et al., Respondents, v. William Morton et al., Appellants. T. devised certain real estate to his executors in trust to receive and apply the rents and profits to the use of his son W. during his life, then to sell and to divide the proceeds among the living children of W. and the issue of those deceased. If W. died without issue surviving, then to divide the same among the testator’s “ surviving children and the issue of such of them as may have died leaving issue.” At the time of making the will and of the testator’s death there were five children, and the issue of five deceased children, living. W. died without issue. Held, that the gift over was not to the .children of the testator surviving Mm, and to their issue exclusively, but thatothe issue of his deceased children also took without distinction between those whose parents died before and those who died after the making of the will. (Argued April 9, 1875; decided April 27, 1875.) As the gift was in money the general rule of construction applies, that words of survivorship, m bequests, are to be referred to the period of division and enjoyment, unless there is a special intent to the contrary; and legacies to a class vest in those who answer the description and are capable of taking at the time of distribution. Appeal from judgment of the General Term of the Supreme Court in the second judicial department, modifying a decree of the surrogate of Westchester county made upon final settlement of the accounts of William Morton, surviving executor and trustee under the will of William Teed, deceased. The questions presented arose under the third clause of the will of the deceased, which was as follows : “ In the third place I give, devise and bequeath unto my executors hereinafter named, and to the survivor of them, all the remaining or north-west part of my said farm in trust, nevertheless, to receive the rents and profits thereof during the natural life of my son William Teed, and apply the said rents and profits to the use of the said William during his natural life ; and upon the further trust, after the decease of my said son William, to sell and dispose of the said northwest part of my said farm at public or private sale, in their discretion, and to execute and deliver to the purchaser, or purchasers thereof, a valid conveyance or conveyances therefor in fee simple absolute, and the proceeds arising from said sale to pay, distribute and divide equally to and among the children of my said son William, living at the time of his decease, and the issue of such of his children as may have died before him leaving issue, such issue to take the share their parents would have taken, if living; and upon the further trust, that if the said William shall die without leaving issue, him surviving, then to pay, distribute and divide the same equally to and among my surviving children, and the issue of such of them as may have died leaving issue, such issue to take the share their parents would have taken, if living.” At the time of the execution of the will and at the time of his death the testator had five children living, and the issue of five children who had previously died were also living. The testator died in 1868. In 1870 his son William died, leaving no issue. After his death Horton, the surviving executor, sold the land and received the proceeds, and the question was as to their distribution. The surrogate' decided that the issue of those of the children of the testator who died before him were not entitled to any portion of the proceeds, and decreed distribution thereof among the surviving children and their issue. The General Term modified the decree by admitting the issue of the deceased children to participate in the distribution. Thomas Nelson for the appellants. There may be circumstances which show that a testator intended his will to speak as of the time it was made. ( Van Alstyne v. Van Alstyne, 28 N. Y., 375; Stires v. Van Rensselaer, 2 Bradf., 172 ; Campbell v. Rawdon, 18 N. Y., 415; Butler v. Bushnell, 3 M. & K., 232.) The words of a will are to be so construed that effect shall be given to every expression. (1 Redf. on Wills, 426, note; rule 16, 471, 472.) The word “then,” in the provision in question, is without significance. (1 Redf. on Wills, 285, note; 2 id., 420.) The will must speak by its own words. (2 Redf. on Wills, 344.) Close & Robertson for the respondents. The words “surviving children,” in the will, mean children of the testator who should be living at the death of the testator’s son William. (Hawk, on Wills [Am. Notes], 260, 261.) The words “and the issue of such of them ” refer obviously to the issue of children theretofore deceased. (Tytherleigh v. Harbin, 6 Sim., 329; Clay v. Pennington, 7 id., 370; Rust v. Baker, 8 id., 443; Bell v. Beckwith, 2 Beav., 308; Lawrence v. Hebbard, 1 Bradf., 257,; Jar. on Wills, 684, 685 ; Hawk. on Wills [Am. Notes], 248, 249.) [MAJORITY — Andrews, J.] Andrews, J. There were living at the death of the testator two sons and three daughters, and the issue of five children who had died before the making of the will. By his will, he devised the north part of his homestead farm to his executors, in trust, to receive the rents and profits and apply them to the use of his son William during his life; and, upon his death, to sell the land and distribute and divide the proceeds among the children of William and their issue; “ and upon the further trust, that if the said William shall die without leaving issue, him surviving, then to pay, distribute and divide the same, equally, to and among my surviving children, and the issue of such of them as may have died leaving issue, such issue to take the share their parents would have taken if living.” William died without issue after the death of the testator. The four other children of the testator, who survived him, died, leaving issue, before the death of William. The executors have sold the'land pursuant to the direction in the will, and have the proceeds in their hands for distribution. The question is, whether, under the words “ my surviving children, and the issue of such of them as may have died leaving issue,” the issue of the children of the testator who died before the making of the will are included. It is apparent, from the other provisions of the will, that there was no general purpose, on the part of the testator, to exclude the issue of children who were deceased when the will was made from sharing in his estate. Several of them were named as residuary legatees, with his surviving daughters, and he gave to one a pecuniary legacy. If the construction of the clause in question, claimed by the appellants, and adopted by the surrogate, is correct, viz.: That the gift over in case of the death of the testator’s son William, without issue, was to the children of the testator who survived him, and their issue exclusively, it follows that the issue of any child who died intermediate the making of the will and the death of the testator would be excluded from sharing in the gift, as well as the issue of children who died before the will was made; and if there had been but one surviving child he and his issue would have taken the whole gift. If the gift had been immediate, to take effect, in possession, on the death of the testator, the issue of children who had died before him would, by necessary construction, be comprehended. It is to be observed that the gift is of money, and not of land. The direction for conversion is absolute; and the trustees are to divide the proceeds of the sale of the land among the persons entitled on the death of the tenant for life. That is the period fixed for the division, and it is a general rule of construction that words of survivorship, in bequests of personal estate, are to be referred to the period of division and enjoyment, unless there is a special intent to the contrary. And legacies given to a class of persons vest in those who answer the description, and are capable of taking at the time of distribution. They are deemed to be the objects of the gift. (Cripps v. Wolcott, 4 Mad., 12; Hoghton v. Whitgreave, 1 Jac. & Walk., 146; 2 Jar. on Wills, 641.) There is some obscurity in the language of the testator, but we are of opinion that the issue of his deceased children, living at the death of his son William, take as primary legatees, under the clause in question, without distinction as between those whose parents died before and those who died after the making of the will. The word them refers to all his children, and not to the surviving children only. This conclusion is, we think, justified by the authorities, and avoids a construction which would, most likely, defeat the intention of the testator, by excluding from a general .family provision the issue of children who died before him, and who, so far as we can see, were, to the same extent, as the issue of his children living at his death, objects of his regard. (Tytherleigh v. Harbin, 6 Sim., 329; Clay v. Rennington, 7 id., 370; 2 Jar on Wills, 684.) The judgment should be affirmed. All concur. Judgment affirmed.