
    George W. Schneider, Respondent, v. Mary Heilbron and Others, Appellants, Impleaded with Edward P. Schneider and Others, Defendants, and Frank Schneider and Others, Respondents.
    Fourth Department,
    November 14, 1906.
    Executors and administrators — contract of remainderman that debt to estate may be deducted from Ms share — when deduction not barred by Statute of Limitations — when creditors of remainderman who has conveyed his interest but takes under will of life tenant entitled to lien — will construed — when son of deceased remainderman takes — partition.
    When a remainderman, entitled to share in real estate on the termination of a life estate, on" purchasing a, chattel belonging to. the estate, makes a written .contract with the executrix, not under seal, providing that the purchase price, of thé chattel, if not paid by him, is to be deducted from Ms share of the estate, and to secure payment transfers his interest in the estate to the executrix, the lapse of six years from the time of the last payment by the purchaser does not bar the claim of. the estate against him for the balance of the purchase price, and the amount should be deducted from his share of the estate on the death of the life tenant.- Although an action of foreclosure by the executrix may have been barred, that portion of the contract providing for the deduction of the unpaid balance is valid and enforcible.
    When a remainderman has conveyed his interest to a life tenant, who by the will bequeaths the residue of her property to her executor for the support and maintenance of said remainderman, although no valid trust is created, the property of the testatrix, including the estate formerly conveyed to her by the remainderman, vests in him immediately, and judgments against him become a lien on and should be satisfied out of his share of the property in an action brought to partition the same.
    (Per Spring, Williams and Nash, JJ.): When a will gives the testator’s whole estate, real and personal, to his widow for life and at her decease gives and devises the same " to the children of my said wife and myself * * * share and share alike,” the son and sole heir of a deceased child of the testator, who was living at the execution of the will but died before the testator,' is entitled to his deceased father’s share.
    Unless there is something in the context of the will to denote an intention that the beneficiaries shall take as joint tenants or as a class, they take as tenants in common or distributively.
    (Per McLennan, P. J., and Kruse, J.): The estate vested in the testator’s children living at his death, and the son of a son who died before the testator is not entitled to a share.
    Appeal by the defendants, Mary Heilbron and others, from an interlocutory judgment of the Supreme Oourt in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Monroe on the 3d day of July, 1906, upon the decision of the court rendered after a trial at the Monroe Special Term, •
    ■ The action was commenced on the 24th day of November, 1905, for the partition of premises known as “ Schneider’s Island,” in Irondequoit bay, in the county of Monroe. The judgment decreed partition of the premises, determined the interest therein of each of the parties to the action, and adjudged that the property be sold by a referee appointed for that purpose in accordance with the usual practice in such cases. The appeal challenges plaintiff’s right to maintain the action upon the ground that he has no interest in the premises; also the determination of the court as to the interests of the respective defendants in. and to the premises "in - question.
    
      Walter H. Hill, for the appellants.
    
      D. W. Forsyth,, for the respondent George W. Schneider.
    
      Richard E. White, for the respondents Hermance and Schauman.
    
      John Mead, for the respondent Frank Schneider.
   McLennan, P. J.:

The facts are not in dispute. One Frank Schneider died in February, 1892, seized in fee simple and in possession of the real estate described in tlie complaint. He left a last will and testament bearing date June 13; 1875,"which was duly admitted to probate and contained the following clause: “ I give and bequeath to my wife, Elizabeth Schneider all iny property, real and .pei'sonal, to be used and enjoyed by her for and during the period of her natural life, and at her decease I give and devise the same to the children of my, said wife and myself, to be divided equally between them, share and share alike.” At the time such will was made there were living the testator’s wife, Elizabeth Schneider, who was named at executrix, and six children of her and himself, viz., George W. Schneider, ,the plaintiff; the defendants Mary Heilbron, Margaret Hoeret,, Edward P. Schneider and Dora A., Wagner; also a son named Frank Schneider, but who died on the 6th day of February, 1887, fivé years prior to the testator’s death, leaving as his only heir at law an'd only child the defendant Frank Schneider. Letters testamentary were issued" to Elizabeth Schneider, the widow of the -testator,, and she continued to act as executrix until her death, which occurred on or about the 19th day of August, 1905.

To repeat, when the will in question was made and executed there were living six children of the testator and his. wife. At the time of the testator’s death only five of such children were living. The son Frank had died leaving him surviving his only child and heir at law the defendant Frank. Schneider. The first question presented by this appeal is, did the grandson of the testator, the defendant Frank Schneider, under the clause of the will above quoted, take the same interest in the testator’s estate as his father, the testator’s son, would have taken if living? The trial court held that Frank Schneider did so take, and such holding is the basis of the judgment appealed from.

We think the conclusion reached by the trial court in that regard was erroneous. It is not claimed that there is any other language or provision in the will which aids in determining the'meaning of the clause in question. The language of the clause is definite and specific. Upon the termination of the life estate the testator bequeaths his property “to the children of my said wife and myself.” The property in question which vested upon the death of the testator was not by the language of the will bequeathed to the testator’s grandchildren (if there should be any), but to the children of his wife and himself. The language used should not be construed so as to make the word “ children ” as used in the clause referred to, include and mean the same thing as “ grandchildren,” unless such a construction is forced by decisions of the Court of Appeals. The decisions, we think, are contrary to such a construction. In Matter of Truslow (140 N. Y. 599, 603) Judge Gray says : “ It is undoubtedly true that the term £ children ’ may include £ grandchildren,’ but to give to it that very comprehensive meaning, we should be able to find such an intention on the testator’s part from other expressions or clauses in the will. I am not aware of any case, in which the term ‘ children’ has been given a broader signification than it naturally imports; except there was something in the will which called for and justified it.” And at page 605 the learned judge further says: “ Language should not be strained, nor words given an unusual meaning, in order to work out a result favorable to the issue of a deceased child.”

In Palmer v. Horn (84 N. Y. 516, 521) the court said : “£ The word ‘children’ in common parlance, does not include grandchildren, or any others than the immediate descendants in the first degree of the person named as the ancestor.’ ”

In Matter of Kimberly (150 N. Y. 90) it was held that “ A devise and bequest of all the testator’s estate ‘unto my three sisters’ (naming them, but without further words), constitutes, by force of the statute (1 R. S. 727, § 44), a tenancy in common and not a joint tenancy or a bequest to a class; and, hence, if one of the three legatees has died, before the testator, her legacy lapses and the testator must be deemed to have died intestate as to one-third of his estate.” ■ It was also held in that case that a gift is not made to a class where at the time of making it the number'of donees is certain and the share which each is to receive is also certain and in no way dependent upon the number who shall survive.

In thé case at bar the testator gave his residuary estate to a body of persons, to wit, the children of himself and wife, the number of whom was to be determined when the estate vested.

There is nothing inconsistent with such holding in Matter of Russell (168 N. Y. 169). In that case it appeared that at the time the gift vested, to wit, at the testator’s death, there was no uncertainty with respect to the number of donees or -the amount of the shares of each, and, therefore, it was held that the value or amount of the share of each was in no way dependent upon the number of the beneficiaries who might survive the time of actual distribution.

Other cases might be cited, which decide that by such language as is used in-the will in question the bequest-is to a class, to wit,'the children of the-testator’s wife and himself, and that the extent of the interest of a member of such class in the decedent’s estate is dependent upon the number who survive the testator. As applied to the facts in this case, we can put the proposition no more plainly ;than to say that where a testator devises property to the" children of himself, such children alone will take who survive him, and that the heirs of a child living at the time of .the execution of the will, but having died before the death of the testator, do not take under such language contained in the will.

We conclude that, independent of any other "question, the estate of the testator, "Frank Schneider, the original owner of the fee of the premises in question, vested upon his death in his five children then living, and that his grandson, the defendant Frank Schneider, had no part in such estate.

If we are correct, thus far and independent of any other consideration, the children of the testator, Frank Schneider, are each entitled to a oneFfth interest in the property sought to partitioned, rather thama one-sixth interest as found by the learned trial judge.

It next appears that Elizabeth Schneider, acting as executrix of ' her husband’s yvill, in and about the month of May, 1893; sold to the plaintiff in "this action, George W. Schneider, one of the children of herself and husband, a steamboat called Island Queen, which was a part of the estate of her husband, for the agreed price-of $600, and a written contract, not under seal, was made between Elizabeth Schneider, as such executrix, and the said George W. Schneider, the plaintiff herein, which provided that George W. Schneider should pay the said $600 in payments of $100 annually, commencing August 1, 1893, and in lieu of payment by him as above, then the said Elizabeth, as executor of the will of Frank Schneider (her husband), deceased, to retain the same from the interest of said George in" the estate of said Frank as legatee.” It was then provided by said agreement, “ and for that purpose and to secure to said estate the payment for said boat, the said George W. Schneider does hereby transfer to the said Elizabeth Schneider, she being the executor of the will of said Frank, his interest in and to the estate of Frank Schneider given by said will, as collateral to the payment of the said six hundred dollars.”

The learned'.trial court found that the plaintiff George W. Schneider never paid for" said boat or any part thereof, and that more than six years had elapsed at the time of the death of Elizabeth Schneider since the time for making the -last payment upon said boat as provided in and by such written contract as aforesaid, and, therefore, •held that such claim was barred and outlawed by the six-year Statute of Limitations.

"VVe cannot agree with the conclusion reached by the learned trial court "in that regard. The fair meaning of the contract was that the plaintiff would pay the contract price within six years, and that if he did not, that sum and the interest accruing "thereon might be deducted from his legacy or share of the estate of liis father when the time came for its distribution, to wit, her death, and that the other provision of the contract can only be regarded in the nature of an assignment as security for the payment of such indebtedness. The executrix undoubtedly had the right, upon the failure of George to make payments as agreed, to foreclose his interest in his father’s estate, and her right to resort to such foreclosure would undoubtedly have been barred by the statute after the lapse "of six years. But we think she was not under obligation so to do; that she could rely upon the other provision which provided in substance that if the indebtedness was not paid as agleed, that the same migli-t be deducted from his share when the time came for the distribution of the estate.

We conclude that the plaintiff is the owner of a one-fifth interest, less the amount which "may be found upon an. accounting to be due and owing by him to his father’s estate under the agreement referred to.

The defendant Edward P. Schneider transferred all .his right, ■' title and interest in his father’s estate to his mother ‘individually. Thereafter she died leaving a last will and testament which provided as follows: “All the rest, residue and remainder of my property and estate I give, devise and bequeath to my executor hereinafter appointed, to be used and applied by him for the support and maintenance of my son, Edward P. Schneider, and for no other use and purpose whatever, and I direct, for that purpose, that he transfer and convert the same into money and available security and securities and use and advance the same to and for the said support and' maintenance as he shall deem for his best interest.” ,

The learned trial court determined, and we think correctly, that such provision in the will did not create a valid trust, but that upon ' the death of Elizabeth Schneider her property immediately vested in her son, Edward P. Schneider, which included, of course, his interest in the property in question, which he had deeded to her. It, therefore, follows that the judgments of Alexander C. Hermanee and Louis Schauman are liens upon and should be satisfied out of the interest of Edward P.. Schneider in the premises in question.

We conclude that the defendant Frank Schneider has no interest in.the premises sought to be partitioned ; that the plaintiff George W. Schneider has á one-fifth interest therein, less the amount of his indebtedness to his father’s estate because of his purchase of the steamboat Island Queen, and that the defendant Edward P. Schneider is the owner of a one-fifth of the premises acquired, by him under the will of his mother, and that the judgments of Alexander O. Hermanee and Louis Schauman are liens upon and should be satisfied out of the same. ■ •

It follows that a new trial should be ordered. The interlocutory judgment should be reversed and a new trial ordered, without costs of this appeal to either party.

Kruse, J., concurred; separate opinion for reversal by Spring, J., in which WiLLiAMS'and Hash, JJ., concurred.

Spring, J. (concurring):

I cannot concur with the first proposition discussed in the opinion of the presiding justice, to wit,' wherein it is held that because Frank Schneider, the son of the testator, died before the testator, although leaving a child, that such child did not take.

It seems to me that a reading of the provision of the will in controversy leads to the conclusion that the children take distributivély and not as a class. Unless there is something in the context of the will to denote it was -the intention of the testator that his beneficiaries should take as joint tenants or as a class the instrument will be construed so that they take as tenants in common or distributively. (1 R. S. 727, § 44; revised.in Real Prop. Law [Laws of 1896, chap. 547], § 56; Herzog v. Title Guarantee & Trust co., 177 N. Y. 86, 97; Matter of Kimberly, 150 id. 90, 93 ; Matter of Russell, 168 id. 169.)

In Matter of Russell (supra) the testator gave his property to his widow and children, “ to. be divided equally between them, share and share alike; that is to say, to my wife one share, to each child an equal share with my wife. Should any of my children have died-leaving lawful issue, such deceased child’s share to be given to such issue.” One of his daughters married after the death of the testator and died before the distribution of the estate according. to the terms of the will, leaving no children. Her husband claimed to take under the will as the distributee of his deceased wife. If the bequest had been to a class he would not participate in the estate for it would pass to the other beneficiaries. The court in a very elaborafé opinion, after reviewing the authorities, held that the children did not take as a class but distributivély, and that the husband of the deceased child was entitled to her share.

Matter of Kimberly (supra), which is relied upon in the foregoing opinion, sustains the position that the present bequest was not to-a class. In that case the testator gave his estate unto my three sisters.” namino- them. One of the sisters died before the testator. The court held that the devisees took as tenants in common an d that the legacy lapsed as to the dead sister.

In the above case the court say (at'p. 93): The appellant’s contention' is that the legatees took jointly, and if not, that the bequest was to the sisters of' the decedent ás a class, and consequently there Was no lapse in the disposition, by reason of the death of one of the legatees. We do mot think that contention can'be sustained. While at common law such a bequest would have constituted the legatees joint tenants, yet, under the statutes of this State, the rule is clearly otherwise. The ¡Revised Statutes provide that Every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy.’' (§ 44; art. 1, tit. 2, ch. 1, pt. 2, R. S.) ” (See Real Prop. Law, § 56.)

In the present case there would be a lapsing of the legacy of Frank Schneider, except for the fact that the statute prevents the. lapsing of süch a devise or legacy to children. (2 R. S. [Banks & Bros. 9th ed.] 1880, § 52; 2 R. S. 66, § 52; R. S. pt. 2, chap. 6, tit. 1, art. 3, § 52.) If Frank Schneider, the legatee, liad lived, the children would have taken as tenants in common, and his death does not change the character of the bequest. (McDonald V. McDonald, 71 App. Div. 116.)

In Matter of Truslow (140 N. Y. 599) the provisions of the will indicated a clear intention on the part of the testator to confine- the bequests to the children, using the word in its restricted sense, and the opinion of the court proceeds on the assumption that the language employed by the testator in declaring his purpose is too clear and plain to allow the ordinary rule to prevail.

The court will do its utmost, without violating the plain purpose of the testator, to prevent the disinheritance of the issue of children. (Shangle v. Hallock, 6 App. Div. 56 ; Matter of Miller, 18 id. 211; Matter of Manning, 50 id. 408.)

I concur in the conclusion reached by the presiding justice on the other two propositions' discussed by him. .

Williams and Wash, JJ., concurred.

Interlocutory judgment reversed and new trial ordered, without costs of this appeal to either party. 
      
      
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