
    Louis A. Seitz and Frederick Marshall, as Executors and Trustees under the Last Will and Testament of Eliza Graf, Deceased, Respondents, Appellants, v. Philip Faversham and William Faversham, Jr., Appellants, Impleaded with Minnie Richter and Others, Respondents.
    Second Department,
    December 30, 1910.
    Will — when, “issue ” construed to mean children — when no unlawful . suspension of power of alienation — devise to class where right of possession is postponed.
    Tlie word “issue” as used in a will will not be construed to mean children, unless clear-r.easons appear either in the will itself or from outside circumstances.
    Tlie-appellate court will construe the word “ issue ” to mean children where the parties to an action to construe a will who would take, the estate because the will would be invalid, if the word were given its ordinary meaning, have acquiesced in the construction by failing to appeal from a decision based thereon.
    A devise of lands to the children of a niece of the testatrix as joint tenants to have possession at such time as the youngest child shall attain the age of twenty-one years, net income to be applied to their support in the meantime, with a proviso that on the death of any of the children, before the youngest survivor shall attain majority, his share to go to the surviving children, does not unlawfully suspend the power of alienation, for the deviséis vested in each child in being and in such as come into being, the right of enjoyment being suspended only for the period of a minority.
    Where there is a devise to a class,'the membership of the class is to be determined as of the time of the death of the testatrix if the devise gives an immediate right of possession; hut where the right of possession is postponed to the happening of a future event, the estate though immediately vested is subject to open and let in all persons born after the death of the testator who answer" to the description of the cliiss at the time when the right to possession accrues. ' •
    Appeals by " the plaintiffs, Louis A. Seitz and another, .as executors, etc., aud the defendants, Philip Faversham and' another,, from parts of a judgment of the Supreme Court in part in favor of the plaintiffs and partly in favor, of certain" of the defendants, entered in the office of the clerk of the county of Kings on the 28tli day of July, 1910, upon the decision of the court rendered after a. trial at the Kings County Special Term. . . "
    
      William G. Oooice \IIoward O'.- Wood with him on the brief], for the plaintiffs. .
    
      John Ewen \ William R. Wilder with him on the brief], for the defendants, appellants.
    
      Edward EL. Bliven, [James ELoffett with him on the brief], "for the defendants, respondents.
   Carr, J.:

This is an appeal from a judgment construing several clauses of the last will of Eliza Graf, deceased. -The more important contro-" versy arises as to the validity and meaning of the 8th clause of the will, which is as follows: “ I give and devise to' the issue of my niece Julia Opp Faversham, and lief husband William Eaversliam, the.house and lot of land No. 397 Central avenue in the Borough of Brooklyn, City of New York, To Have and to Hold the same in equal shares, as joint tenants and not as tenants in common, when the youngest of such issue attains the age of twenty-one years, the n.et income .after the payment of taxes, water rates,' insurance, repairs and running expenses, to be applied to their use in equal shares, in the meantime. In the event of the death of any such issue before the youngest survivor shall attain thé age of twenty-one years, then I give the share of the one so dying to the survivors of such issue.” The learned trial court held that this clause constituted a valid devise of the specified real property to the children of Julia Opp Faversham who were in being at the time of the death of the testatrix, and that the estate so devised was vested, subject, however, to open and let in subsequently born children of Mrs. Faversham, and subject likewise, to the contingency of a divesting of title by death in the time running before the event fixed for enjoyment in absolute fee. In the decision of the trial court, the word “ issue ” as used in this clause of the will is deemed to have meant the same thing as children.” The contentions of the respective appellants here are based upon the same assumption. If, however, the word “ issue ” was employed in its primary sense as meaning descendants, then the clause in question would be clearly ■ void for remoteness and as working an - unlawful suspension of the power of alienation. Unless there be clear reason shown to the contrary, either in the will itself or in outside circumstances, the word “ issue ” is given ordinarily its primary meaning. (Schmidt v. Jewett, 127 App. Div. 376; 195 N. Y. 486, and cases cited.) Inasmuch as the parties who would take the property in question, were the 8th clause of the will invalid, are parties to this action, and have acquiesced, by failure to appeal, in the decision that the word “issue ” was meant in the sense of “ children,” there is no occasion here for a discussion of that question. The defendants Philip and William Faversham, the now living children of the niece of the testatrix, who are infants of tender age, appeal from the judgment so far as it determines that their estate is liable to open and let in their after-born brothers and sisters, if such should be. They urge that if their estate be subject to open and let in subsequently born children, the devise to them would be invalid because of a suspension of the power of alienation during the time in which such contingency might occur. This time, however, is necessarily limited upon the life of either their father or mother, for at the death of either it is necessarily determined who are the children to take. . (Tucker v. Bishop, 16 N. Y. 402.) The devise to each child is vested as it was in being or as it comes into being, and nothing intervenes between it and its right to full enjoyment of the estate but the. period of a minority. Under these circumstances there would be no unlawful suspension of the power of alienation.' (Manice v. Manice, 43 N. Y. 380; Radley v. Kuhn, 97 id. 35.)

It is urged further that the devise to the children of her and Mrs; Baversham is a devise to a class, and that the primary rule of construction is. that the class is determined as to its membership as' it existed at the time of the death'of the .testatrix. This is so where the-devise gives an immediate right of possession, but this rule is qualified by the familiar, and correlative rule that where the right of enjoyment is postponed to the happening of a future event the estate devised, though immediately vested, is subject to open and let in all persons born after the death of the testator who would' answer' the description of the class at the time when the right to enjoyment accrues. The most familiar example of this rule arises where an .antecedent estate has been carved out, e. g., a life estate. (Bisson v. West Shore R. R. Co., 143 N. Y. 125.) Iii the case at bar there is no antecedent estate, but there is a postponement of the right of possession and enjoyment until the arrival of the youngest child at the age of twenty-one years. The effect is the same, for the vested estate of the children living at the death of the -testator will open to let in those wdio come into being-before the absolute right of .possession and enjoyment accrues; (2 Jarman Wills [6th Am. ed.], 1015 et seq.)

There are some other questions presented on this appeal which we deem it unnecessary to discuss, as the propriety of their determination by the trial court is sufficiently clear.

The judgment should be affirmed, with a bill of costs - to each of the parties’) .payable out of the estate.

Jenks, Bubb, Thomas and Bich, JJ., concurred.

Judgment affirmed, with costs to each of the parties, payable out of the estate.  