
    Prowitt et al. v. Rodman et al.
      
    
    
      Devise to children.—When it includes grand-children.— Construction.
    
    A testator devised property to his daughter, for life, and after her decease “ to such children as shall he living at the time of her death,” with a devise over, in case she should die without leaving such living children : held, that the word “children” included grand-children and remoter descendants;
    No portion of a. will can he rejected, unless in irreconcilable conflict with its other provisions.
    Appeal from the general term of the Supreme Court, in the first district, where a judgment rendered at special term, in a case tried before the court, without a jury, had been affirmed.
    This was an equitable action brought by Henry Mackaness Prowitt and others against Washington Rodman and others, to obtain a judicial ^construction of the will of Thomas Mackaness, deceased.
    
      The testator died prior to the 19th March 1807, on which day, his will was admitted to probate, in Orange county; his wife died before him. He left three daughters: Elizabeth, then the wife of Thomas Harvey; Mary, then the wife of Mr. Prowitt; and Margaret, then unmarried, afterwards the wife of Charles Ludlow. At the death of the testator, Mrs. Harvey had two children living, and Mrs. Prowitt, three. Mrs. Mary Prowitt outlived both of her sisters; she also outlived all her children, but left grand-children and great-grand-children ; she died in 1857. One daughter of each sister survived Mrs. Piowitt. The questions litigated in this case arose upon the claims of the descendants of those children, as against the descendants of Mrs. Prowitt.
    By the will, which bore date the 15th February 1806, the testator said, “ and as to such worldly estate and effects wherewith it has pleased God to bless me, I give, devise and bequeath the same in the manner following:”
    *In the first clause, he gave to his daughter, Elizabeth Harvey, during her life, certain premises situate on Front and De Peyster street, in the city of New York; after her decease, to such child or children as she might then have living; if none, or upon their death, to her husband, for life, with remainder over to his daughter Mary, and his daughter Margaret, in equal parts. He then proceeded, substantially, as follows:
    “Secondly, I give unto Thomas Harvey, Divie Beth une and John Huyler, and their heirs, my lot of ground, with a brew-house and malt-house thereon, and all the fixtures and utensils belonging to the said brew-house and malt-house, to the use of said Harvey, Bethune and Huyler, during the life of my daughter Mary Prowitt, and upon the trusts, that they, during the life of my said daughter Mary Prowitt, apply the rents and profits for her sole and separate use; and after the decease of my said daughter Mary Prowitt, to the use of all and every the child and children of my said daughter Mary Prowitt, lawfully to be begotten, then living; if one child only, to him or her, the whole, and to his or her heirs and assigns for ever; and, if more than one child, then to them, their heirs and assigns for ever, in equal parts to be divided; and to the several and respective heirs of the body and bodies of all and every such child or children lawfully issuing,, and to, for or upon no other use, trust, intent or purpose whatsoever; and I do accordingly, from and immediately after the decease of my said daughtef Mary Prowitt, give and devise all and singular the lots of ground, houses, with all the fixtures, utensils, &c., so as aforesaid given and devised in trust for her sole use and benefit, during the term of her life, unto such child or children as my said daughter Mary Prowitt shall then have living; if one child only, to him or her, the whole, and to his or her heirs or assigns for ever; and, if more than one child, then to them, their heirs and assigns for ever, in equal parts to be divided; and in case any such child or children should happen to die, before the decease of their said mother, leaving lawful issue, then I do give and devise the part or parts of such *child or children so dying, unto the several and respective heirs of the body and bodies of all and every such child and children lawfully issuing, and to their several and respective heirs and assigns for ever, in equal parts to be divided: provided; that it shall be lawful for said Harvey, Bethune and Huyler, from time to time, during the life of my daughter Mary Prowitt, and after her decease, during the minority of the child or children of my said daughter Mary Prowitt, or who, for the time being shall, by virtue of this my will, be entitled in possession to the said lots of ground, or to receive and take the rents, issues and profits thereof, or of any part thereof by indenture, under hand and seal, to demise the said lot of ground, &c., for any term during the life of my said daughter; and in case my said daughter should die during the minority of her children or child, then for any term during such minority. And in case my said daughter, Mary Prowitt, shall not leave a child, living at the time of her death, then I give and devise all the said real estate or property so given and devised in trust for her use and benefit during her natural life, and to her children or child after her decease, to my daughter Elizabeth Harvey, and my daughter Margaret Thornton Mackaness, their heirs and assigns for ever, in equal parts to be divided ; but, if either of my said two last-named children shall then be dead, and shall have a child or children then living, the part of her so being dead, I give and devise to such child or children; if one only, to him or her, and to his or her heirs or assigns for ever; and, if more than one, then to them, their heirs and assigns for ever, in equal parts to be divided.”
    In the third clause of his will, the testator gave to his wife and his daughter Margaret, for life, his farm, with all the stock and utensils thereon. He then made the provision following for his daughter Margaret:
    
      “ Fourth, I give unto my said daughter Margaret Thornton Mackaness, her heirs and assigns for ever, my house and lot, No. 32 Partition street, in the city of New York; but if my said daughter Margaret shall die unmarried, and without Heaving a child her surviving, then I give the same, and also all such other parts of my real and personal estate as by this my will are given to her, to my daughters Elizabeth Harvey and Mary Prowitt, their heirs and assigns for ever, in equal parts to be divided ; but, if my said daughter Margaret shall die, either before or after my decease, leaving lawful issue, then I do give, devise and bequeath the part and parts, share and shares, of my real and personal estate by this my will given, devised and bequeathed to her, unto such child, or children; if one only, to him or her solely, and his or her heirs-and assigns for ever; if more than one, to them, their heirs and assigns for ever, equally to be divided between them, share and share alike; and in case my said daughter Margaret Thornton Mackaness shall die without lawful issue, and if, at her death, either of my said daughters Elizabeth Harvey and Mary Prowitt shall then be dead, and shall have a child or children then living, I give, devise and bequeath the part or parts, share or shares, of my real and personal estate, by this my will devised and bequeathed to their respective mothers, so being dead, to such child or children; if only one, to him or her, the whole, and to his or her heirs and assigns for ever; and, if more than one, to them, their heirs and assigns for ever, in equal parts to be divided.”
    In the eighth clause, he gave to his daughter Mrs. Harvey, $5000; to his grandson, Thomas M. Harvey, $2500; and $1250 to the trustees before named, to invest, receive the interest, and pay the interest to Mrs. Prowitt, toward the better education and maintenance of her children, until they become of the age of twenty-one years, or married, whichever should first happen; and as the children “ shall severally become of age, or marry as aforesaid, pay to such children, if more than one shall arrive at such age, or marry, their several and respective equal proportions of the said sum of $1250, and all the interest that may then be due thereon; but, if one only, then the whole of said sum to him or her.”
    In the same clause, the testator gave his wife the use of $15,000, during her life, and after her death, he gave $5000 thereof unto each of his daughters, Elizabeth and Margaret; *the remaining $5000 to be placed in the hands of the same trustees, to invest and pay the interest to Mrs. Prowitt, during her life, “ and after her decease, then to pay the said sum of $5000, and all the interest that may, at her decease, he due thereon, unto and amongst such child or children, as my said daughter (Mrs. Prowitt) may have living, at the time of her death, in equal parts to be divided, as they shall severally arrive at the age of twenty-one years, or marry, whichever shall first happen; and in case my said daughter Mary Prowitt shall die, during the minority of her children or child, then I direct that the said sum shall, by my said trustees, be kept at interest, and such interest applied towards their maintenance and education, until they severally arrive at the age of twenty-one years, or marry; and that the said principal sum of $5000, and the interest due thereon, be equally divided between and paid to the said children or child of my said daughter Mary Prowitt, as they shall severally attain the age of twenty-one years, or marry; and if one only of such children arrive at the age of twenty-one years, or marry, then to him or her solely, his, her or their executors, and administrators and assigns for ever; but, if either of my said children shall, at the time of the death of my said wife, be dead, and shall have a child or children then living, the part or share of the said $15,000, so bequeathed fo,r the use and benefit of her, so being dead, I give unto such child or children; if only one, to him or her, the whole, and, if more than one, to and among them in equal parts to De divided, and to his, her and their executors, administrators and assigns for ever. And my said executors shall place out at interest or invest $3750, and receive the interest, and pay the same into the hands of my said daughter Mary Prowitt, during her life, for hex-own use. And after the decease of my said daughter Mary Prowitt, I give the said principal sum of $3750 to such child or children as the said Mary Prowitt may then have living; if one only, to him or her, the whole, and, if more than’ one, to and among them in equal parts to be divided, and to his or her and their executors, administrators and assigns for ever. But, if my ■said ^daughter Mary .Prowitt shall not have any child living, at the time of her decease, then I give and bequeath the said principal sum of $3750 to and among my other two children, Elizabeth and Margaret, in equal parts to be divided, their executors, administrators and assigns for ever; but, if either of my said two last-named children shall then be dead, and shall have a child or children then living, the part or share of the one so being dead, I give and bequeath to her child or children; if one only, to him or her, the whole, and, if more than one, to and among them, in equal parts to be divided, and his, her and their executors, administrators and assigns for ever.”
    “And all the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever, which I may die seised or possessed of, or entitled to, I give, devise and bequeath in manner following—that is to say: one equal fourth part to my said wife, her heirs, executors, administrators and -assigns for ever; and one other equal fourth part, I give unto my said daughter Elizabeth, her heirs, executors, administrators and assigns for ever; and one other equal fourth of the said residue, I give unto my said daughter Margaret, her heirs, executors, administrators and assigns for ever. And the remaining one equal undivided fourth part, I give unto said Harvey, Bethune and Huyler, upon the trusts that they shall place the said fourth part out at interest, or invest the same, and receive the interests thereof, and to pay the same into the hands of my said daughter Mary Prowitt, during the term of her life; and after her decease, then to pay the whole of said fourth part, and all the interest that may, at her decease, be due thereon, unto and amongst such child or children as my said daughter Mary Prowitt may have at the time of her death, their 
      executors, administrators and assigns for ever, in equal parts to be divided, as they shall severally arrive at the age of twenty-one years, or marry, whichever shall first happen; and in case my said daughter Mary Prowitt shall die during the minority of her children or child, then I direct that the said sum or sums, shall by my said trustees, be kept at interest, and such interest *l°war^s their, his or her maintenance and education, until they severally arrive at the age of twenty-one years, or marry; and that the said principal sum, and the interest due thereon, be equally divided between, and paid to the said children or child of my said daughter, Mary Prowitt, as they shall severally attain the age of twenty-one years, or marry; and if one only of such children arrive at the age of twenty-one years, or marry, then to him or her solely, his or her or their executors, administrators and assigns for ever. And I do hereby nominate, constitute and appoint my said wife, Jane Mackaness, my said son-in-law, Thomas Harvey, and my friends, George Warner, sail-maker, and Robert Gosman, house-carpenter, executrix and executors of this my will.”
    The case was tried at special term, where judgment was rendered in favor of Mrs. Prowitt’s descendants, and adversely to the defendants, Mary Rodman and others, and adjudging costs to all parties out of the fund. The general term affirmed the judgment, and the representatives of Mary Rodman appealed to this court.
    
      Rodman, for the appellants.
    
      O’Conor, for the respondents.
    
      
       Also reported in 4 Trans. App. 412.
    
   Hunt, J.

The first question before us arises upon the provisions of the second section of the will. The original defendant, Mary Rodman, claimed one-half of the real estate here described, as the sole surviving child of Elizabeth Harvey, one of the testator’s daughters, living at the death of Mrs. Prowitt. The same claim, is continued by her descendants, who have now become the defendants in this action. The plaintiff, on the other hand, contends that Mrs. Prowitt, having survived her immediate offspring, her grand-children took the remainder in fee-simple, in the real estate described in the second section of the will. This is the precise propositioxx presented upon this branch of the case.

The claim of the appellants to the $5000 bequeathed in the eighth section, for the use of Mrs. Prowitt during her life, and, after her death, “to such children as should be living at the time of her death,” is based upon the same idea. So is the claim to the $3750 described in the same section, and in nearly the same language. The three propositions present the same general question of the right of grand-children to take and hold an estate limited by the expression “children living at the time of her death.” In the coxxsideration of this '^question, as it arises under the second section of the will, certain qualifying expressions hereafter to be mentioned, it is supposed, may influence its decision. Upon the eighth section, the question is more sharply presented, although I consider these expressions, wherever they may be found, as affecting the construction of the entire will.

The first suggestion that arises upon the examination of this will is the idea, that the testator intended to make a disposition of all his property. After a pious ejaculation in behalf of his soul, he announces his intention to make a disposition of his “ worldly estate and effects.” After numerous specific dispositions, he closes his will by giving direction to “ all the rest and residue” of his property. This language includes all his estate and all his effects; he did not intend to die intestate as to any part of it. (Merrill v. Jackson, 6 Johns. 191; Finlay v. King, 3 Peters 379; Hogan v. Jackson, Cowp. 306.)

The next observation is, that the testator intended to make a reasonably equal disposition of his property between his three children. As the value of the real estate given for the benefit of each daughter is not stated in the will, this theory is to some extent conjectural. So far as sums are named, they are equal, and there is nothing to indicate a preference for one daughter over her sisters, or an intention to give to one family a greater inheritance than to another. Mr. Harvey, the husband of one of his daughters, was appointed a trustee, and named as one of his executors, while Mr. Prowitt, the husband of his daughter Mary, was evidently in low esteem with the testator, either from a want of affection for him, or from a distrust of his financial capacity. So far as can be ascertained, however, from the terms of the will, this feeling extended only to exclude Mr. Prowitt from all management of, or interference with, the portion of the estate destined for his wife; but not to the diminution of her portion to the slightest extent. As to each daughter, he seems to have intended, that she should have the benefit of one-ihird of his estate, during her life, and that after her death, the same share should go to the benefit of her family.

*It may be observed also, that the will was evidently drawn by a lawyer, but' by one who did not apprehend the precise effect of the language he made use of, and who seems himself to have had a suspicion of the truth. In the absence of precise ideas, or of accurate language, he takes a refuge in technicality and redundancy; common-places and technicalities are curiously intermingled. In illustration of this want of accuracy, as well as to show that the testator did not, in fact, intend to limit the property described in the second section to the immediate offspring of Mrs. Prowitt, but that the expression “ children then living” meant her “lawful issue,” I will here refer to some other expressions of the testator in the same section.

After disposing of the property, during the lifetime of his daughter Mary Prowitt, the testator gives it “ to the use of all and every the child or children of my said daughter Mary Prowitt, lawfully to be begotten, then living.” It is conceded in the case, that Mary Prowitt had three children, all of whom had been begotten and born, before this will took effect. It is conceded also, that the expression, “to be begotten” does not, in law, cut off children theretofore begotten or born. Nevertheless, the expression is inaccurate, as the testator wished his property to be for the benefit of the offspring of his daughter, already begotten and born, as well as those thereafter to be begotten. The claim wets made, in a case hereafter to be cited, that under such a clause, the trust would pass only to those begotten previously to the taking effect of this will, and was overruled, in connection with the main question raised by the appellants, both objections being held to be unavailing. A few lines further on, the testator provides, that if more than one child remains to Mrs. Prowitt, “ then, to them their heirs and assigns for ever, in equal parts to be divided, and to the several and respective heirs of the body and bodies of all and every such child, lawfully issuing.” A devise to the heirs and assigns, as here first limited, conveys a fee-simple absolute, while a limitation to them and the heirs of their bodies, as secondly described, creates an estate-tail. The two descriptions are used convertibly, in the same *sentence, and, apparently, with no idea of a difference in their meaning. This language, here as well as in the sentence commencing “ and in case,” which I will presently quote, was probably intended to express the idea, that the children, not only, i. e., the immediate offspring of Mrs. Prowitt, but the several and respective heirs of the bodies of all and - every such child or children, being the lawful issue of Mrs. Prowitt, should be takers. The testator then adds, “and I do, accordingly,” that is, as he had just recited, that is, to the heirs of the bodies of Mrs. Prowitt’s children, give, devise, &c., to such children as she shall then have living.

■ Again, after reiterating that, upon the death of Mary Prowitt, the estate in trust is for such children as she shall then have living, the testator adds these words: “And in case any such child or children should happen to die, before the decease of their said mother, leaving lawful issue, then I do give and devise the part or parts of such child or children so dying, unto the several and respective heirs of the body of all and every such child, lawfully issuing, and to their several and respective heirs and assigns for ever.” Here is repeated the same confusion between the heirs and assigns of the children, and the heirs of their bodies. The writer was apparently unconscious that this paragraph was anything more than an elaboration of what preceded it. In my judgment, it explains the intent of all the prior provisions respecting the descent to the issue of Mrs. Prowitt, and effectually determines their character. It is a clear statement, that the estate is not limited to the children of Mrs. Prowitt, who shall actually be living, at the time of her death, that is, to her immediate offspring, but that her “lawful issue” are the parties intended to take. It contemplates the death of some or all of the children of Mrs. Prowitt, before her decease, and provides that their children should take the same benefit as would have been had by their parents, if they had outlived Mrs. Prowitt. I think, there is no basis for the argument of the appellants, that this applies only to a case, where some of Mrs. Prowitt’s children have died, leaving issue, and other, have survived her. There *is nothing to indicate such an intent, or to justify such a construction.

And again, before closing this section, the testator, in providing that, upon failure of Mrs. Prowitt’s issue, the estate should go to his remaining daughters, uses this language: “And in case my daughter, Mary Prowitt, shall not leave a child living at the time of her death, then I give and devise all the said real estate and property, so given and devised in trust for her use during her natural life, and to her children or child after her decease, to my daughter, Elizabeth Harvey, and my daughter Margaret,” &c. The testator here evidently supposes, that when he leaves the estate to the child or children of Mary Prowitt, living at the time of her death, he makes the same disposition as if he had left it to his daughter Mary and her children. He uses the two expressions in the same sentence, and as meaning the same thing. He describes the estate “ so given” as being in trust for Mrs. Prowitt, during her life, and to her children or child,” after her decease. This would include the remoter descendants of Mrs. Prowitt. (See authorities posé.).

So, in the use of the language employed in the fourth section of the will, in which his daughter Margaret is provided for, the same want of precision in the use of terms, and the same commingling' of the different expressions to indicate the intended issue of his daughter, are to be found. He devises to his daughter Margaret, her heirs and assigns, certain premises on Partition street, in the city of New York, adding, but if my said daughter should “ die unmarried, without leaving a child her surviving,” then to his daughters Mrs. Harvey and Mrs. Prowitt. He adds, “ but if my said daughter shall die, either before or after my decease, leaving lawful issue,” then I do give, &c., “ unto such child or children;” and in case my said daughter Margaret shall die, “ without lawful issue,” and either of my daughters, Mary or Elizabeth, shall be dead, then, &c. The limitation here first made is to a child her surviving.” In the same sentence, immediately following, and referring to the same posterity, “lawful issue” is the expression used; and thirdly, *“ unto such child or children,” still indicating the same descendants. All of these expressions are used to indicate the same offspring, and show that the testator used the three expressions convertibly. It is impossible to avoid this conclusion.

The influence of these considerations is not limited to the sections of the will in which the expressions occur; they shed a light upon the whole instrument. In my judgment, they afford very strong reason to believe that, in all the dispositions of the will for the benefit of the children of Mary Prowitt, the $5000 and the $3750, as well as the real estate, the testator intended her lawful issue, and not her immediate offspring, as the objects of his bounty.

The clause of the second section, authorizing the trustees to lease the brewery property, also confirms this construction. It was made lawful for the said trustees to lease the said property, “ from time to time, during the life of my daughter Mary Prowitt, and after her decease, during the minority of the said child or children of my said daughter Mary Prowitt, or, who, for the time being, shall, by virtue of this my will, be entitled in possession,” &c. Power is here given, to lease, first, during the lifetime of Mrs. Prowitt; second, during the minority of her child or children; third, during the minority of “who” or whosoever, for the time being, should be entitled in possession. This is but a fair construction of this power. The word “ or” is disjunctive, and applies to other objects than those already designated, to wit, the children of Mrs. Prowitt. Such persons must have been the remoter descendants of Mrs. Prowitt.

In relation to the $5000, it is to be observed, that unlike to the real estate, and unlike to the $>3750, there is no limitation over to any other branch of the family, in the event of the failure of the issue of Mrs. Prowitt. The language is to pay the same “ unto such children or child as my said daughter Mary Prowitt may have living, at the time of her death, in equal parts to be divided, as they shall severally arrive at the age of twenty-one years, or marry, whichever shall first happen.” It was the intent of the testator, not to *die intestate as to any part of his property. I have already discussed this subject. Such intent comes strongly in aid of the respondent’s claim, that the terms made use of were intended by the testator to embrace the remote issue of Mrs. Prowitt. Unless such is the construction, the testator died intestate as to this amount. (Royle v. Hamilton, 4 Ves. 439.)

In my view of the language of this will, there is no such conflict between its different provisions, as requires a determination that one part shall prevail over the other. The first principle is, that all parts shall be made operative, if possible, and it is only when the provisions are in irreconcilable conflict, that it becomes necessary to say what part shall stand and what part shall fail. I think, the testator intended that the remote descendants should be takers under the sections of the will which I have discussed, if there should be a failure of the immediate offspring of Mrs. Prowitt. The expressions “ child or children then living, or child her surviving,” should be so construed as to carry out this idea. This construction is in harmony with the general intent of the testator, in harmony with good 'sense and sound principles of justice, and is supported by high authority. In Hart v. Tulk (2 De G., M. & Gord. 300), the word “fourth” was construed as if it had been dropped, or as if written “schedule,” to prevent apparent caprice and injustice, and to make the will sensible and reasonable.

The English statute enacts, that the father and grandfather of every poor- person shall relieve and maintain such person. In commenting on this statute, Blackstone says (1 Com. 449), “ no person is bound to provide a maintenance for his issue, unless where the children are unable to work,” using the expressions “issue” and “ children” as synonymous, and both applying to grandchildren as well as to children. Chancellor Kent says in his commentaries (4 Kent’s Com. 419 n.): “ Children as well as issue may stand in a collective sense for grand-children, where the justice or reason of the case requires it.”

*-ARl10Ugl1 arguing strenuously against extending the signification of these words, Mr. Jarman says (chap. 30 of his work on Wills, p. 73): “ It should be observed, however, that in a considerable class of cases, the word ‘ child’ or ‘ children’ has received an interpretation extending it beyond its more precise and obvious meaning, as denoting immediate offspring, and been considered to be employed as nomen colledivum, or as synonymous with issue or descendants, in which general sense it has often the effect, when applied to real estate, of creating an estate-tail.” He adds: “ where this construction has prevailed, it has generally been aided by the context.”

In the Earl of Tyrone v. Marquis of Waterford (1 De G., F. & J. 637), Knight Bruce, Ld. J., says: “ The word ‘children’ is a very flexible expression, and, according to a correct use of the English language, has more meanings than one. Authoritative writers, as well as the habits of educated society, show that an accurate speaker may, without impropriety, use the term ‘ children’ for the purpose of indicating offspring, or descendants or posterity in whatever degree. If, therefore, in this will, we read the word ‘ children’ as equivalent to 'issue* or ‘descendants,’ we read it in one of the senses belonging to it, though not in that which is the most usual; nor are the instances few in which our courts of justice, construing testamentary dispositions, have so interpreted it. I agree, that the word ‘ children,’ when used in a will, for the purpose of indicating relationship and not age, must, generally or universally,, in the absence of an explanatory context or extraneous evidence, showing facts rendering it impossible, or, at least, very highly improbable, that it could have been used as what lawyers call a word of ‘ purchase,’ or as indicating offspring only in the first degree, be construed to be a word of purchase, and to mean only offspring in the first degree.”

In Robinson v. Robinson (1 Burr. 38), the testator said: “ I bequeath all my real estate to Lancelot Hicks, of Plymouth, during the term of his natural life, and no longer, provided that he alter his name and take that of Robinson, and live at my house at Bochym; after his decease, to such son *as he shall have, lawfully to be begotten, and for default of such issue, then to my cousin.” It was held by the House of Lords, on appeal, that notwithstanding the words “ during his life, and no longer,” Lancelot Hicks took an estate in tail-male, although it was claimed that the devise to the son of the body of Lancelot Hicks was satisfied by the birth and death of his eldest son.

In Hodges v. Middleton (2 Doug. 431), the testator devised to Mrs. Middleton, all her real estate “during her life, and at her death, to her children; and in case of failure of children of Mrs. Middleton, to George Hodges,” &c.: held, that this gave either an estate-tail to Mrs. Middleton, or an estate for life, with remainder in tail to her children—making the word children of the same effect as the word issue.

In Doe v. Webber (1 B. & Ad. 713), the testator gave certain real estate to his “ niece Mary Hills, her heirs, executors and assigns for ever; and my will is, that in case my niece Mary Hills shall happen to die, and leave no child or children, then unto my niece Jane Barnes,” held, that the words “ child” or “ children were synonymous with “issue.” Lord Ellenbokough says: “In this case, it has been contended, that the words ‘ child’ or ‘children’ mean issue, and that the first devise is, therefore, either converted into an estate-tail by the limitation over on Mary Hills dying and leaving no child or children, in which case, the limitation over is a remainder and barred by the recovery; or, if the first devise be conceded to be in fee, that the limitation over is too remote, as being an executory devise, to take effect after an indefinite failure of issue. It is true (he proceeds), that the words ‘child’ or ‘children’ may mean issue, and where the intent requires it, the word ‘ children’ has not been confined to the immediate descendants, though that is its ordinary and proper sense, but has been extended to all the descendants, as in Wilde’s Case (6 Co. 17), &c. * * * And in the present case, the words ‘ child’ or ‘ children’ must be construed to mean issue, because it is the manifest intention of the testatrix, that Jane Barnes should not take in exclusion of any issue, however remote, of’ Mary .Hills.”

This “ manifest *intention” was made known by the words “ child or children” only; the will contains no other expression of the testator’s intention.

In Doe v. Simpson (3 M. & Gr. 929), the testator devised certain property to his son, Dr. John Simpson, his heirs and assigns for ever, and added: “ But if it shall happen that my said son, Dr. John Simpson, shall die without leaving any child or children, in that case, I give and devise unto Mary and others,” who were his illegitimate offspring. After making certain other provisions, he adds, that, if his present wife should leave no issue to inherit certain other property named, he gives it to Mary and the others, “as all the other property, above mentioned, given and bequeathed to my said son, Dr. John Simpson, in case he die without issue.” Lord Denman, O. J., cites, with approval, the preceding observations of Lord Ellenborough, and adds, in relation to the clause last cited, “ we consider this an interpretation, by the • testator himself, of the word ‘ children/ as used by him in the previous part of the will. It is as if he had said, that, by the previous part of his will, he had given the property in dispute to his five natural children, only in the event of Dr. John Simpson dying without issue, and he had not, in fact, said this, unless the word ‘ children’ be read, as we think it must be, as being synonymous with ‘ issue.’ ”

In Hewett v. Ireland (1 P. Wms. 426), the objections were twofold: first, that children “to be begotten” did not include children in existence at the testator’s death; second, that the remote descendants could not take. Lord Chancellor Parker described the objections as “alike” and “equally unreasonable,” and overruled them both.

In Parkman v. Bowdoin (1 Sumn. 368), a devise was to A. for life, after his death to his second son B., and to his lawfully-begotten children, in fee-simple for ever; but in case he should die without lawfully-begotten children, to the other son of A. (C.), and to his lawfully-begotten children, in fee-simple for ever; at the time of making the will, B. had no children: held, that B. took a fee-tail, with remainder to C., on an indefinite failure of the issue of B. Judge Story, in *deciding this case, examines all the authorities, from Wilde’s Case (6 Co. 17) onward, holding the words “ children” to be words of limitation, and not of purchase; he says: “To give any just effect, then, to the original devise, as well as to the devise over, the word ‘ children’ must be construed as meaning issue or heirs of the body; and although, in its primary sense, the word ‘children’ is a descriptio persona,rum who are to take, there is not the slightest difficulty in giving it the other sense, where the structure of the devise requires it, There are many authorities to this effect in cases analogous to the present.” The learned judge then examines and reviews the cases, a portion of which I have already called attention to.

These authorities fully establish the two propositions for which the respondents contend:

1. That the term “ children” may include issue, however remote, and will be held so to include, whenever the reason of the thing demands it.

2. In case of a contingent future gift to the children of a first taker, followed by a limitation over, for want of such, the presumption is in favor of the first taker’s posterity to his remoter descendants, in preference to the donee over.

I have examined with care the cases cited by the learned counsel for the appellants, in the elaborate brief submitted with his argument. None of them seriously conflict with the general views I have laid down, although some of them would place greater restrictions upon the rule of construing the terms in question than would others. They all admit, as does the learned author of the work on wills, above quoted, that when the evident intention of the testator requires it, or when the estate would fail, if such were not the construction, that the words “ child or children” are to be construed as meaning issue or remote descendants, Limiting the rule to this extent, the appellants’ case cannot be sustained, as I have endeavored heretofore to establish. The judgment should be affirmed, with costs to be paid to both parties from the fund.

Judgment affirmed. 
      
       Van Vechten v. Keator, 63 N. Y. 52.
     
      
       And see Beebe v. Estabrook, 79 N. Y. 251; Browne v. Underhill, 4 Hun 130.
     