
    Mary Hotaling et al., App’lts, v. Harriet Ann Marsh et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 8, 1892.)
    
    Partition—Will—Children born after testator’s death.
    Testator, by his will, empowered his executors to so dispose of his residuary estate that it might be divided among his grandchildren so that each should receive their share on coming of age, and authorized them to sell or hold as they thought would be for the interest of the youngest ones, and added, “it may so happen that my daughter, Harriet Ann, may live to have other children after my death, and after my executors may have divided my estate; in that case it is my wish that they come in and share in the estate left my wife, after her death, in preference to the others, so that all my grandchildren may eventually, as near as may be, receive the same amount.” The widow refused to accept the provision made for her in the will and was awarded dower. The will was proved in 1859. Subsequently a judgment in partition provided that children of Harriet Ann born after the executors had divided the estate should share ultimately in the part set aside for the doweress. Afterwards other real estate was discovered^ and another action of partition was brought and a similar course taken in regard to the doweress, and a similar judgment entered as to the share of the doweress and any after-born child of Harriet Ann. The widow died in 1887. In 1870 a child (Grace) had been born to the daughter, Harriet Ann. In 1862 the executors brought a suit for the construction of the will, and by the judgment in that Action no provision was made or contemplated for the child born in 1870. In 1870, and after the birth of said child, the executors accounted before the surrogate; a special guardian was appointed for the after-born child, but no part of the assets were set apart for said child. Its rights were neither affirmed nor denied. In 1887 the after-born child .applied to be made a party to the first action of partition and a referee awarded it such a portion of the share of the doweress (now deceased) as would_ make it equal with the other children. Held, that this was the intention of the testator; that the refusal of the widow to accept the provision made for her in the will, in lieu of dower, could not operate to disinherit the infant Grace or deprive her of the provision made for her as an after-born child to share in the third reserved for the widow.
    Appeals by the plaintiff Clarence Peters and Abbie Simpkins, as claimant, from a j udgment of the general term, first department, entered upon a decision of the special term.
    
      W. H. Atwood, for app’lt Peters; Charles ¡S. Simpkins, for app’lt Simpkins ; John C. Gulick, guardian ad litem, for resp’t Grace S. Marsh: Valentine Marsh, for other resp’ts.
    
      
       Affirming 29 St. Rep., 221.
    
   Haight, J.

Abel S. Peters died on the 14th day of May, 1859, leaving a last will and testament, which was duly proved and admitted to probate before the surrogate of the city and county of New York on the 20th day of September thereafter. He left "him surviving his widow, Harriet Peters; Harriet Ann Marsh, his only surviving child; Clarence' Peters, Franklin Peters, Harriet Ann Peters, children of the testator’s deceased sons, Milton" ■and Franklin; Mary Hotaling and Ellen Campbell, formerly widows of his deceased sons; Valentine Marsh and Frank Marsh, ■sons of the testator’s daughter, Harriet Atm Marsh, his only legatees and heirs-at-law.

This action was commenced on the 14th day of November, 1859, for a partition and sale of four parcels of real estate of which the testator died seized, and final judgment was entered therein on the 18th day of November, 1861. Under such judgment three of the parcels were sold, but that known as No. 177 Reed street in the city of New York has never been sold.

On January 30, 1870, Grace S. Marsh was born of the defendant Harriet Ann Marsh, and on the 14th day of January, 1888, on her petition, an order was made that she be made a party defendant to this action and that a reference be had to ■ascertain her right, share and interest in and to the premises in •question, etc.

Under the final judgment originally entered in this action one-third of the proceeds arising from the sale of the three parcels of real estate was brought into court and deposited with the chamberlain of the city and county of New York with directions to invest the same and to pay the interest accruing thereon to Harriet Peters, the widow of the testator, during her life, as and for her dower interest in the premises sold. She died on the 24th day of September, 1887. The special term ordered judgment ■that the infant Grace S. Marsh was entitled to be preferred out of the ■ principal sum to be divided upon the death of Harriet Petfers, the widow of the testator, to the extent of making her on an equality with the five other grandchildren who participated in the division of the residuary estate of the testator. Her right to be so preferred is the question presented upon this review. It involves a construction of the testator’s will.

In the second clause the testator describes the four parcels of real estate for which this action was originally brought to partition, and then empowered his executors to dispose of the same,, if his widow consent, and invest one-third of the proceeds in bonds and mortgages, the interest of which they were directed to pay her semi-annually during her life, and after her death divide, the same among his grandchildren that survived her. Of the remaining two-thirds he gave one-half to his daughter Harriet Ann, and the other half was disposed of between his daughters-in-law and their children.

The third clause of the will provides that: “Of all my other-estate, whether real or personal, held by me or in trust for me at the time of my death, it is my wish that my executors dispose of the same or put it in shape to divide among my grandchildren so-that each may receive their share on becoming of age, for which purpose I hereby authorize them to sell all or a part of the whole, or divide up and hold such part as they may think to the interest of the youngest ones; for instance : The two front and rear houses-Ho. 134 and 136 West Thirteenth street is lease property, and now pays double what the principal would if sold, all of -which my said executors shall divide equally as near as may be among my grandchildren, viz.: the children of my daughter, Harriet Ann Marsh, and the children of my two sons, Milton and Franklin,, of the latter is Clarence Peters,. Franklin Peters and Harriet Ann Peters, or their survivors, whenever either shall become of age. It may so happen that my daughter, Harriet Ann, may live to have other children after my death and after my executors may have divided my estate. In that case, it is my wish that they come in and share in the estate left my wife, after her death, in-preference to the others, so that all my grandchildren may eventually, as near as may be, receive the same amount.”

The widow refused to accept the provision made for her in the-, will, and she was, therefore, awarded dower instead.

It is true that Grace S. Marsh was not born after the executors-divided the residuary estate, but she was born after the death of the testator and before the death.of his widow and the distribution of that portion of his estate set apart for her use during her life.

“ It may so happen that my daughter, Harriet Ann, may live to-have other children after my death and after my executors may have divided my estate.” The word “ and ” is used to connect two phrases, from which it is argued that the child must be born both after the death of the testator and after his executors', had divided his estate in order to be entitled to the provision. He had in his will named his living grandchildren, and made provision for each. He also made provisions for after-born chil-dren of his daughter Harriet Ann. Ho reason is shown why he should exclude those born after his death and before the distribution of his estate, and still bring in those born after the distribution. In construing wills the court may transpose, reject or supply words in order that the intention of the testator may be ■expressed and carried out, and to avoid absurd and unjust results. He evidently intended to provide for every child born of his daughter either after his death or after the distribution ■of his estate.

The refusal of the widow to accept the provision made for her in the will in lieu of dower cannot operate to disinherit the infant, Grace, or deprive her of the provision made for her as an after-born child. These rights were recognized and provided for in the original judgment entered herein thirty years ago, in which all of the heirs at law and legatees, other than the infant •Grace, were parties, and they are consequently bound thereby. As to the remainder of the clause, the language of the will is clear and specific, and the testator could not well have expressed his intention in plainer words: “It is my wish that they come in and share in the estate left my wife after her death in preference to the others, so that all my grandchildren may eventually as near as may be receive the same amount”

Indeed we do not understand his intention as determined and adjudged by the special term to be seriously questioned, but the claim is made that under the provisions of the original judgment entered herein Grace cannot be preferred out of the third reserved for the widow, for the reason that she was born before there was a division of the residuary estate. That judgment provided, as we have seen, that One-third of the proceeds of the sale of the real estate be paid to the chamberlain to be invested, and the interest to be paid to> Harriet Peters, the widow, during her life, and at her ■death the principal sum so invested to be divided between the five grandchildren of the testator, or such of them as should survive, “subject'however to open and let into share in the same any children that said Harriet Ann Marsh shall have previously had lawfully born to her after the death of said testator, who shall then survive, and provided also that if previously to the birth of said after-born children a division of the residuary estate of the said testator shall have been made by said executors between said five grandchildren, or the survivors of them, then said after-born children shall be preferred out of the said principal sum to be ■divided upon the death of said Harriet Peters to the extent as far as may be of making them equal with said five grandchildren.”

We thus have the language of the decree providing for the ■opening thereof to let in any child or children of Harriet Ann Marsh born to her after the death of the testator, who shall then survive, and that such after-born child or children shall be preferred out of the principal sum to be divided on the death of the widow, and yet, under the proviso, it is claimed that such child or children cannot share such principal sum if they were born previously to the distribution of the residuary estate. Such proviso could not have correctly expressed the intention of the court, for it was held, as we shall subsequently show, that such child or children had no part or interest in such residuary estate. We-think the construction contended for ought not and should not. prevail. It is contrary to the expressed wish of the testator, as well as the evident intention of the court, as is apparent from the other provisions of the judgment. This is a proceeding in the action and upon the judgment entered. Grace has been made a party,, and, if necessary, the court would have power to amend the judgment in that regard in order that the will of the testator might be carried out. But under the view taken by us the judgment as. entered should receive a reasonable construction; the one which was evidently intended by the court, and which will carry out the intention of the .testator.

On the 10th of May, 1861, an action was brought to have the-clauses of the will marked “thirdly” and “lastly” construed,, and thereupon judgment was entered on the 4th day of December, 1862, in which it was adjudged that the residuary estate of the testator vested at the time of his death in his five grandchildren (naming them); “that said residuary estate so vested in said five grandchildren subject to open and let in any children lawfully born of the defendant Harriet Ann Marsh previous to either of the testator’s grandchildren arriving at lawful age; that said grandchildren take in equal shares, each to receive his or her share on arriving at lawful age, and the said defendant Harriet Ann Marsh having had no children born to her since the death of said testator and the defendant Clarence Peters having arrived at lawful age in less than three months after the death of the testator, as found by said decision, it is also adjudged and decreed that said defendant Clarence Peters was so entitled to receive his share on so arriving at lawful age, and that no child born to-said Harriet Ann Marsh after the said Clarence so arrived at. lawful age would be entitled to any share in said residuary estate.”

It is claimed that Grace is bound by this judgment, and that under it she is precluded from taking any share in the estate under the will for the reason that she was not born until after Clarence arrived at lawful age. The court in ordering judgment-in that case doubtless intended to follow the rule adopted in the ease of Tucker v. Bishop, 16 N. Y., 402, and it is claimed to be-, binding upon Grace under the authority of Brevoort v. Brevoort 70 N. Y., 136, and Monarque v. Monarque, 80 id., 320. But without considering these questions, for the purposes of this argument, we will assume that the judgment construing the will was correct, and that it is binding upon Grace. It adjudges that no child horn to Harriet Ann Marsh after Clarence Peters arrived at lawful age would be entitled to any share in the residuary estate of the testator, and he having arrived at age within three months-after the testator’s death' it follows that Grace had no interest or share in such estate. But she is not here claiming any interest in. such residuary estate..

The will purports to give her no interest or share in the residuary. The interest or share given her is in the proceeds of the-four parcels of real estate which was disposed of by the second clause of the will. Her share was to be preferred and paid out of the third of the proceeds set apart for the use of the widow during her life. Ho construction of this clause was asked for, or had, in the action that was brought to construe the will. The construction was as to the third clause and to the residuary estate therein mentioned, which embraced “ all my other estate, whether real or personal, held by me or in trust for me at the time of my death.”

True, the preference under which Grace maintains her claim is incorporated at the end of the third clause, but that clause received construction or adjudication in that .action only in so far as it pertained to the residuary estate, and not as to the four parcels of real estate disposed of under the second clause.

Again, it appears that on the 17th day of June, 1870, an accounting was had by the executors before the surrogate; that on such accounting Grace, then an infant of six months, appeared by a special guardian, and that the surrogate, in his final decree on that date entered, distributed the residuary estate among the five grandchildren, excluding Grace, thus following the judgment of the court entered upon the construction of the will.

Assuming this decree to be binding upon her, it has nothing to do with the question under consideration, for, as we have already shown, she is not asking for or claiming any interest in the residuary estate.

■ We have considered the other questions presented, but find none that point to error.

The judgment should be affirmed, with costs.

All concur.  