
    Eliza D. Pfender, Respondent, v. Hannah L. Depew and Others, Defendants, Impleaded with Friedrich Carl, Pfender and Others, Appellants.
    First Department,
    February 11, 1910.
    Will construed — whén word'“ children ” includes remote descendants.
    The words “ child ” and “children” when used in a will or other instrument are taken to refer to descendants of the first degree, and to exclude those of a more remote degree. The rule, however, is not inflexible, and there are many cases in which the words will be given wider signification' so as to include grandchildren and even more remote descendants. ' >
    
      Where two interpretations of the word “ children” are possible, the courts prefer that which does not serve to disinherit heirs.
    A will which creates a trust for the benefit of two daughters until such time as they shall die or marry, and providing that on the happening of either event, the principal placed in trust for either daughter shall be held for the benefit of the other daughter, if living and unmarried, and further providing that upon the death or marriage of both daughters the principal shall be divided among “other children who maybe surviving at the time, the child or children of any son or daughter who may have died before such contingency talcing the share to which the parent, if living, would have been entitled” will be construed to mean that grandchildren and great-grandchildren of the testatrix, whether living at her death or born during the trust period, are included in the word “children” and.are entitled to share in the remainder, taking under the will, not by representation.
    Laughlin, J., dissented, with opinion.
    Appeal by the defendants, Friedrich Carl Pfender and others, by their guardian ad litem, Charles S. Guggenheimer, from portions of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Hew York on the 20th day of September, 1909, confirming the report of a referee.
    
      Charles 8. Guggenheimer, for the appellants.
    
      Walter Large, for the respondent.
   Scott, J. :

This appeal presents the question which often recurs, and is frequently difficult to answer, whether or not the word “children” when used in a will should be construed in its primary sense dr in a more general and comprehensive sense as the equivalent of “issue” or “ descendants.” The question arises in an action for partition, and relates to the will of one Hannah Depew.

Joseph Depew, husband of Hannah, died on or about August 26, 1856, seized of certain real property in the city of Hew York. He left surviving his widow Hannah Depew, and sons and daughters. By his will he devised and bequeathed one-third of his estate to his widow Hannah Depew, absolutely, and gave her the income of the remaining two-thirds for her life with remainder over to his children, and the issue of such as should have predeceased him. Hannah Depew died on or about July 20, 1876. She left one married daughter, the plaintiff herein, two unmarried daughters, Laura A. and Hannah L. Depew, and several sons. She had also, several grandchildren of tender age, living at the time of her decease. Her will was dated December 31, 1874, and, after providing for the payment of her debts, made, the following disposition of her estate: “ Third. After the payment of my debts ánd liabilities I direct my executors of this will to hold and invest a different moiety, or one-half part, of all the rest and residue of my estate for the benefit of each of my two daughters Laura A. Depew and Hannah L. Depew, and to pay the interest, rents and income of the property so held án.d invested to the person for whose benefit it shall be invested once in six months,,.or oftener', during the natural life of the person for whose benefit that property shall be invested, provided she shall remain so long unmarried; and on her death or marriage the principal of the money and property above directed to be held and invested for her benefit is to be held and invested for the benefit of my other daughter above mentioned, in case she is' still living'and unmarried.

" Fourth. Upon the occurrence of the death or marriage of both of my said daughters above mentioned, I then direct that the jnincipal part of my said estate so directed to be invested for their benefit, or the survivor of them, be divided equally among my other children who may be surviving at the time, the child or children of any son or daughter who may have died. before such contingency taking the share to which the parent, if living,-would have been entitled.”

Laura A.. Depew never married, and died April 30,1903. Hannah L. Depew never' married and still survives. Since the death of Hannah Depew other grandchildren, as well as great-grandchildren have come into being, and the question to be determined is whether these great-grandchildren aré entitled to participate in the division of the estate when the trust estate shall terminate, and consequently whether their contingent interests must be provided for by the decree. ■

It is elementary law that as a general rule the words “ child ” or “ children ” when used in a will or other document will be taken to refer to issue or descendants of the first degree, and to exclude descendants of a more remote degree. (Low v. Harmony, 72 N. Y. 408; Palmer v. Horn, 84 id. 516.) The rule, however, is not inflexible, and there are many cases in which the word will be given a wider signification and read as standing in a collective sense for grandchildren or even more remote descendants. The subject was exhaustively treated in Prowitt v. Rodman (37 N. Y. 42), wherein the Court of Appeals, after a careful review of many authorities, laid down the rule “ that the term ‘ children ’ may include issue however remote, and will be held so to include whenever the reason of the thing demands it.” In Matter of Brown (93 N. Y. 295) the testator gave to each of his six daughters a life estate in one-tenth part of his estate, real and personal, with remainder over to their respective children, and the question presented was whether the remainder was intended to vest in all the children of each daughter, or whether it was contingent upon such children surviving their mother, so that issue of a son of one of testator’s daughters who died before his mother was to be cut off from all participation in the remainder limited upon- her life estate. The court found enough in the language of the will to let in the grandchildren of the life tenant, saying, per Papaleo, J.: “ If, however, this language is capable of any construction which would permit the issue of the deceased son to participate in the remainder limited upon his mother’s life estate, that construction should, on well-settled principles, be adopted in preference to one which should exclude them.” In Matter of Paton (111 N. Y. 480) the will submitted for construction provided that upon the happening of a certain event the property should be divided “equally among the children I may then have, or those who may be legally entitled thereto.” The court realized that this clause was susceptible of two interpretations, one of which would exclude, arid the other include, grandchildren, and found no difficulty in adopting the latter interpretation, quoting with ajjproval Judge Stoby’s remark in Parkman v. Bowdoin (1 Sumn. 367), that “ although in its primary sense, the word children ’ is a desoriptiopersonarum who are to take, there is not the slightest difficulty in giving it the other sense, when the structure of the devise requires it.” The Court of Appeals, quoting from Kent (Vol. 4 [2d. ed.], p. 419) that “ children, as well as issue, may stand, in a collective sense, for grandchildren when the justice or reason of the case requires it,” cites a large number of well-known authorities for the proposition that The word children ’ is a flexible expression, and we think that' meaning should be preferred, when the reason of the thing sustains it, which permits the children of a deceased child to inherit.” ■ 'Where two interpretations of the word “ children ” are possible, the courts have been much disposed to adopt that one which will not serve to disinherit the heirs of the testator. (Scott v. Guernsey, 48 N. Y. 106, 120; Matter of Keogh, 126 App. Div. 285, 289.) In the present case the gift over is to take effect at the end of the trust term, and is to the testatrix’s other children and.to the child or children of any son or daughter who may have died before such contingency; ” that is,, before the death or marriage of the last survivor of the two daughters for whom the trust was created. It is clear that this creáted á contingent remainder to vest in possession at the end of the trust term, and that those designated then to take the estate will take it directly under the will and not by representation. The testatrix was creating a trust which might run, as indeed it has,, for a long time, and she clearly contemplated and undertook to provide for the probability that some of her own children might die before the expiration of the trust term, and that her married sons, and daughters might have children, grandchildren to her, born after her death, but before the expiration of the trust, and -it is clear that she intended to include among the ultimate beneficiaries sucli after-born grandchildren, if their parent, who was her son or daughter, should have died, before the time for division and distribution arrived. She was careful to provide that the distribution should be made per stirpes, at least so far as concerned her own children and grandchildren, preserving, so far as possible, an equality between her own children who suryived the trust and the families of those who did not survive. In all this; We discern, without difficulty, a very simple testamentary design to provide for her unmarried daughters so long as they remained unmarried, and, when they should both have died or _ married, to distribute the estate among those who at that time would answer to the description of her heirs at law. To give effect to tins testamentary scheme it is necessary.to include among those who may become entitled to share in the distribution of the estate, when' the time comes to distribute it, the great-grandchildren of the testatrix. All the facts have been found by the referee in his report, and it will not, therefore, be necessary to send the' case back for. a new trial. ' ■

The interlocutory decree will, therefore, be modified in accordance with this opinion, with costs and disbursements to the guardian ad litem for the infant appellants.

■ Ingbaham, P. J., Clabke and Millee, JJ., concurred; Laughlin, J., dissented.

Laughlin, J. (dissenting) :

I do not' agree with the construction given to the will by Mr. Justice Scott. A will should be so construed as not to disinherit heirs if the language used be susceptible of such construction. (Scott v. Guernsey, 48 N. Y. 106, 121.) In the case at bar, however, if the word “ children,” as employed by the testatrix in the will be construed in its primary sense, that will dispose of her property to those of her heirs who were in being and for whom she intended to make provision, and where, as here, there are children in the primary sense, the rule is that -grandchildren. are not included therein, unless clear intention to embrace them be found in' the will. (Palmer v. Horn, 84 N. Y. 516, 521.) I do not, however, agree with the contention made in behalf of the respondent that the provision in the 4th. clause of the will that the child or children of any son or daughter who shall have died before "the termination of the trust shall take the share which his, her or their parent would have taken, if living, was entirely unnecessary and superfluous on any 'theory other than as indicating an intention on the part of the testatrix to confine the disposition of the remainder of the corpus of the trust to the children and grandchildren of the testatrix. The claim is made that if the word “ children ” as used in that clause were intended to embrace grandchildren it would have been entirely unnecessary to make the specific provision with respect to the share which the grandchildren would take. If the specific provision had not been'made and the word children” included grandchildren, then the grandchildren would doubtless take per capita with children, but under this provision of the will they would only take per stirpes. I do, however, attach much importance to the phraseology of the 4th clause of the will as bearing upon the construction of the word “children” Us therein used, It is perfectly clear that.the testatrix intended to make provision out of this remainder for both children- and grandchildren; but she did not intend to provide for all of her descendants, for she has expressly excluded by the words “other children” her two children who are life beneficiaries of the trust and their issue. This indicates that slje did not intend to make a devise by which this remainder should go to all of her' descendants,- to all of her children and grandtihildren, but on the contrary it appears that she intended to limit her descendants who should participate therein. The contingency upon which the remainder- should vest in possession in the deriseps of the testatrix has not arisen, for one of the life beneficiaries, Hannah L. Depew, is still alive and unmarried. The question arises in an actiop in partition as to who have contingent interests in the remainder of the trust property, and, at the time we are called Upon to decide the question it appears that one of the “ other children ” of the testatrix the plaintiff — is still alive and she lias both children and grandchildren living. Of course if she survives the termination of the trust neither her children nor her grandchildren will take and at- the present time her interest in the' remainder is doubtless vested subject to be divested by her - death before the termination .of the trust, (Stringer v. Young, 191 N. Y. 157.) If, however, the' plaintiff should die before the termination of the trust leaving her children and grandchildren now in being or some of them, the parent of her grandchildren being also alive, the question would arise as to whether the plaintiff’s children living at the termination of the trust, if one- of them as now- should then have children living, would take to the exclusion of such grandchildren of the plaintiff who would be great-grandchildren of the testatrix. If the word -“ children ” as used in. this clause of the will .is to be construed aS embracing grandchildren then there would be. found in the provisions of the will itself nothing to exclude the grandchildren of ■ the plaintiff from participating in. the remainder with ¡their parent as well as with their uncle and aunt. It may be said that no intention should be drawn from the will that the testatrix intended that her grandchildren and the issue of such grandchildren should at the same time inherit. But if the word “ children ” ex tends to grandchildren, and both parents and children are children then there would be no limitation in this provision of the will that the one shall only take in the right of the other. • If great-grandchildren of the testatrix are to take, then we find no rule prescribed by her to determine the share which each shall take either as between themselves or as between themselves and her other grandchildren and great-grandchildren. We find no provision indicating either that they shall take per capita or per stirpes. It is possible that the plaintiff and her son, who now has two children living, may die before the termination of the trust and that her two other children now living will survive its termination. In that event if children includes grandchildren it would seem, there being no provision that the grandchildren should take in the right of their parent or per stirpes, that the two grandchildren if they should survive the termination of the trust in the circumstances described, would each take the same share in the remainder as would their uncle and aunt. It is not reasonable to attribute such an intention to the testatrix. I am of opinion that if the testatrix intended that her great-grandchildrén should participate in this remainder express provision would have been made with respect to the share which they would take similar to that made in the 4th clause of the will by which it is made clear that her intention was that the children of any of her deceased sons or daughters should take per stirpes and not per capita. The construction for which appellants contend requires not only that the word “ children ” be construed as embracing grandchildren, but also, in order to make any reasonable disposition of the property, that the word parent ” as used in the 4tli clause of the will be construed in the case of grandchildren as having a dual meaning and referring both to their immediate parent and to their grandparent, for children by the terms of the will only take in place of their parent, which is Clearly used as referring to the sons and daughters of the testatrix who shall die before the termination of the trust leaving issue, and yet to prevent grandchildren from sharing per capita with children it is necessary to construe “ parent ” as meaning the immediate ancestor of the grandchildren and thus limit them to taking per stirpes. . I fiiid no evidence in the will to overcome the presumption that the testatrix intended to use the word children ” in other than its primary and ordinary sense. (Pimel v. Betjemann, 183 N. Y. 194, 200; Matter of Truslow, 140 id. 599.)

I think, therefore, that the appellants had no interest’ in the premises and that the interlocutory judgment should be affirmed.

Interlocutory decree modified as directed in opinion, with costs and . disbursements to guardian ad litem for infant appellants. Settle order on notice. ■ ' • ■  