
    No. 10,707.
    Cummings et al. v. Plummer et al.
    
      Win. — Construction of. — “Children.”—Grandchildren.—A testator, by his will, directed his executor to convert his estate into money, and to then “ make distribution between my children living, and the children of my deceased children if living at the time,” etc. At the testator’s" death he left living children, but one of his children had died leaving some living children, and also some who had already died leaving children who were great grandchildren of the testator.
    
      Held, that the latter took nothing.
    From the Union Circuit Court.
    — Brown and — Brown, for appellants.
    
      T. D. Evans, for appellees.
   Colerick, C.

The appellants filed their complaint against the appellees to obtain a construction by the court of certain provisions in the will of Henry Peinson, deceased. A demurrer to the complaint, assigning insufficiency of facts, was sustained, and, the appellants declining to amend, final judgment, on demurrer, was rendered against them, from which they appeal. The only error assigned is the ruling of the court upon said demurrer.

The provisions of the will to be construed are embraced in the second item or article thereof, as follows:

"Article 2d. I direct my executor to sell my homestead farm on which I now reside, in Harrison township, Union county, Indiana, consisting of two hundred and ten acres, also my farm in Center township, county above written, on which my son Isaac now resides, to best advantage as he may consider, and when my estate is changed into money I desire my executor to make distribution between my children living, and the children of my deceased children if living at the time, and share alike, to wit: The children of Sophia A. Plummer, deceased, to receive the portion that she would have received if living; the children of Thomas Peinson, deceased, to receive the portion that he would have received if living; the children of Mary J. Kettler, deceased, to receive the portion that she would have received if living; the chileren of Lydia A. Hall, deceased, to receive the portion that she would have received if living. I desire my entire estate to be distributed as above described, except $100 I direct my executor to pay the trustees of the Christian church at Hannen’s Creek, in Harrison township, Union county, Indiana, the interest only to be used by said trustees for the benefit of said church; also, $100 I desire my executor to pay to my granddaughter Mary Weseott over and above her portion as the heir of her mother.”

The complaint, in substance, avers that the appellants were, at the time of the making of said will and the death of said testator, and still were, the living grandchildren of said Sophia A. Plummer, they being the children of two of her children who were deceased at the time of the making of said will; that said Thomas Peinson, Mary Heltner and Lydia A. Hall, at the making of said will, had no grandchildren living, and that the appellants were the only grandchildren of any of the deceased children named in said will; that by the following clause in said will, to wit, “ I give and bequeath to the children of Sophia A. Plummer, deceased, the portion that she would have received if living,” the appellants were included and became entitled to their portion of the legacy so bequeathed to the living children of said Sophia A. Plummer; that the word children,” as used in said will, meant and included grandchildren in the sense in which said phrase w^s used in said will, as would more fully appear by the whole will, a copy of which was filed with and made a part of the complaint; that Mary Wescott, named in said will, was the child of said Lydia A. Hall, who was the daughter of the testator; that the appellees Thomas Plummer and Henry Plummer were the only children of said Sophia J. Plummer living at the time of the making of said will, and that they were still living; that said will had been duly probated, and that the legacy belonging to the appellants and the appellees Thomas Plummer and Henry Plummer, amounting to about $2,400, was then in the hands of the appellee Richard M. Haworth, as the executor of said will, for distribution, and that the appellants and the appellees Thomas Plummer and Henry Plummer constituted all the legatees of said Sophia A. Plummer; that said executor disputed the right of the appellants to any legacy under the will. Wherefore they prayed that they be adjudged legatees under the will, and entitled to their portion of said legacy, and that said executor be directed to pay the same, and for other relief.

The' only question submitted for our consideration is, whether the appellants, as the grandchildren of Sophia A. Plummer, are entitled to participate, as legatees, in the distributive share of said estate, which, by the provisions of the will, was given to “ the children of Sophia A. Plummer, deceased.” There is no expression used in the provision of the will to which we have referred, or in any other provision, indicating, in any manner, that the word “children” was intended to be used by the testator in any other than its proper and ordinary signification, or evincing' an intention or desire on his part to make any provision whatever for the appellants, but, on the contrary, the language used in the will clearly indicated an intention or desire on his part to exclude them from participating in the distribution of his estate, as the will directs the executor of the wdll, after he has converted the real estate into money, to make distribution thereof among the testator’s children, living, “ and the children of his [my] children if living at the time.” By this provision it is apparent that the appellant intended to confine the distribution of his estate, as to the children of his deceased children, to those of them who might be living at the time of the making of the distribution. And as it appears by the averments in the complaint that, at the time of the death of the testator, there were, and still are, children of Mrs. Plummer living, we think that they alone, as such children, are entitled to the share in the estate which Mrs. Plummer would have received if living.

In 2 Jarman on Wills, p. 690, it is said: “The legal construction of the word children accords with its popular signification ; namely, as designating the immediate offspring; for, in all the cases in which it has been extended to a wider range of objects, it was used synonymously with a word of larger import, as issue. It has sometimes been asserted, however, that a gift to children extends to grandchildren,where there is no child.” And in 2 Redfield on the Law of Wills (2d ed.), p. 15, it is said : “ The'word ‘children,’ as well as all other similar descriptive terms of classes or relations, it will be bonie in mind, must always be understood in wills, in its primary and simple signification, where that can be done; in short, where there are any persons in existence at the date of the will, or before the devise or legacy takes effect, answering the meaning of the term. And where the term ' children 5 has received a larger and more extended construction, as synonymous with issue, it has generally been based upon something in the will, unless it resulted as already intimated, from the fact that there were no children in existence.”

The law, as above stated in the text-books to which we have referred, is recognized and fully sustained by an unbroken line of decisions. Among the cases directly in point are the following: Churchill v. Churchill, 2 Met. (Ky.) 466; Collins v. Hoxie, 9 Paige, 81; Cromer v. Pinckney, 3 Barb. Ch. 466; Gardner v. Heyer, 2 Paige, 11; Mowatt v. Carow, 7 Paige, 328; Appeal of Gable, 40 Pa. St. 231; Ward v. Sutton, 5 Ired. Eq. 421; Hallowell v. Phipps, 2 Whart. 376; Dickinson v. Lee, 4 Watts, 82; Cutter v. Doughty, 23 Wend. 513; Izard v. Izard, 2 Des. Eq. (S. C.) 308; Phillips v. Beall, 9 Dana (Ky.), 1; Ewing v. Handley, 4 Littell, 346; Osgood v. Lovering, 33 Maine, 464; Thomson v. Ludington, 104 Mass. 193; Low v. Harmony, 72 N. Y. 408; Castner’s Appeal, 88 Pa. St. 478; Feit v. Vanatta, 21 N. J. Eq. 84.

In Churchill v. Churchill, supra, the law is thus clearly and forcibly stated: “ The technical legal import of the word ■'children5 accords with its ordinary and popular signification. It does not denote grandchildren; and, though sometimes used with that purpose and effect, there is no warrant for thus enlarging its meaning in construing a will, unless indispensably necessary to effectuate the obvious intent of the testator. It may be regarded as well settled that such enlarged or extended import of the word ' children,5 when used as descriptive of persons to take under a will, is only permissible in two •cases. First, from necessity, where the will would be otherwise inoperative; and, second, where the testator has shown by other words that he did not usé the word in its ordinary and proper meaning, but in a more extended sense.” The .other cases cited are to the same effect.

Filed April 2,1884.

No error was committed in sustaining the demurrer to the complaint.

Per Curiam. — The judgment of the court below is affirmed, at the costs of the appellants.  