
    In the Matter of Marine Midland Bank, N. A., as Successor to Chautauqua National Bank and Trust Company of Jamestown, as Trustee under a Trust Created by Carl V. E. Gustafson, Deceased.
    Submitted September 7, 1989;
    decided November 21, 1989
    
      POINTS OF COUNSEL
    
      Richard V. Slater and Douglas A. Spoto for Daniel L. Gustafson, Jr., and another, appellants.
    I. The intent of the testator, demonstrated by the language of the will, justice and reason all support an interpretation of the term children of a deceased brother to include grandchildren. (Prowitt v Rodman, 37 NY 41; Matter of Weil, 151 Misc 841, 271 NY 608; Matter of Blodgett, 286 NY 602; Matter of Villalonga, 6 NY2d 477; Matter of McNeil, 18 AD2d 170; Matter of Keogh, 126 App Div 285.) II. In the alternative, the decision of the Surrogate should be affirmed.
    
      Samuel P. Price for Matthew William Gustafson, appellant.
    I. Matthew William Gustafson is entitled to a share as one of the issue of E. Leonard Gustafson. (Prowitt v Rodman, 37 NY 41; Matter of Weil, 151 Misc 841, 245 App Div 822, 271 NY 608; Matter of Brown, 93 NY 295; Matter of Blodgett, 286 NY 602; Matter of Paton, 111 NY 480; Matter of McNeil, 18 AD2d 170; Matter of Johnson, 33 Misc 2d 643; Matter of Hart, 185 Misc 791; Matter of Stecher, 190 Misc 502; Matter of Villalonga, 6 NY2d 477.) II. In the alternative, Matthew William Gustafson is entitled to a share because his grandfather, Leonard Gustafson, had a vested remainder. III. In the alternative, Matthew William Gustafson is entitled to a share as a distributee of Daniel L. Gustafson who had a vested remainder.
    
      Roger E. Hammer for Elizabeth Gustafson Elias, appellant.
    I. The will shows an over-all plan of distribution to pass the estate ultimately to the testator’s two brothers and their children and families. (Matter of Larkin, 9 NY2d 88; Matter of Fabbri, 2 NY2d 236.) II. An interest once vested will be divested only under the exact terms of the divestments. (Matter of Krooss, 302 NY 424.) III. Designation of a gift as class gift does not solve the problem. (Matter of Sweazey, 2 AD2d 292.) IV. The dicta of the Gautier case does not govern this case. (Matter of Gautier, 3 NY2d 502.) V. Rules of construction applied in doubtful cases involving the survivorship issue indicate that the use of the words "surviving child or children” be correlated with the use of the word "issue”. (Matter of Bogart, 62 Misc 2d 114; Matter of Sweazey, 2 AD2d 292.)
    
      Philip A. Erickson and Paul V. Webb, Jr., for Jacqueline Gustafson Lanphere, respondent.
    I. The remainder under this will was subject to a requirement of survival until the death of the life tenant. (Matter of Lockwood, 127 AD2d 973; Matter of Gautier, 3 NY2d 502; Paget v Melcher, 156 NY 399; Matter 
      
      of Crane, 164 NY 71; Matter of Vander Roest, 175 App Div 941, 220 NY 664; Bryer v Finnen, 178 App Div 671; Matter of Daniell, 12 Misc 2d 359; Matter of Bostwick, 236 NY 242; New York Life Ins. & Trust Co. v Winthrop, 237 NY 93; Matter of Silsby, 229 NY 396.) II. Upon the death of the life tenant, the remainder vested in Jacqueline Lanphere as the only surviving child of Leonard Gustafson. (Matter of Villalonga, 6 NY2d 477; Matter of Welles, 9 NY2d 277; Matter of Keogh, 126 App Div 937, 293 NY 602; Palmer v Horn, 84 NY 516; Matter of Beuchner, 226 NY 440; Matter of Barnum, 29 AD2d 945.) III. This will shows an intent to benefit surviving immediate offspring only. (New York Life Ins. & Trust Co. v Phelps, 106 Misc 687; Matter of Durant, 109 Misc 62; Brown v Tanz, 176 App Div 795; Matter of McKim, 115 Misc 720; Palmer v Horn, 84 NY 516; Matter of Barnum, 29 AD2d 945; Matter of Vander Roest, 175 App Div 941, 220 NY 664; Herzog v Title Guar. & Trust Co., 177 NY 86; Tillman v Ogren, 227 NY 495; Banzer v Banzer, 156 NY 429; Roseboom v Roseboom, 81 NY 356.) IV. The arguments of the claimants under Daniel find no support in the terms of the will. (Matter of Silsby, 229 NY 396; Matter of Villalonga, 6 NY2d 477; Palmer v Horn, 84 NY 516.)
   OPINION OF THE COURT

Bellacosa, J.

In concluding that appellants are not entitled to inherit under the relevant gift provision of this disputed will, we reaffirm two basic principles governing the adjudication of decedents’ estates by courts: our primary function is to effectuate the testator’s intent and the words used to express that intent are to be given their ordinary and natural meaning.

Testator executed his will in 1955 and it was admitted to probate in 1959. At issue is clause (c) of paragraph fifth, which bequeaths part of the residuary of one of two trusts to the "surviving child or children” of testator’s brother Leonard, who predeceased the trust’s life tenant, testator’s widow, Elsie. A "surviving child” of Leonard, Jacqueline, is respondent before us and claims entitlement to the whole of that residuary portion. Appellants are the widow and children of Leonard’s other child, Daniel (Jacqueline’s brother), who, like his father, predeceased the life tenant. Daniel’s children, as appellants, strive to take under paragraph fifth’s gift provision and urge the courts to construe the word "children” to include grandchildren so that the collateral descendants of the testator, i.e., the grandnephews and grandnieces, can partake of the testamentary plan. Since they are faced with the fundamental proposition that the word "children” will be given its ordinary and natural meaning unless the will as a whole shows an unmistakable intent that different or remoter persons or classes should be included, they argue that the onetime use of the word "issue” in a different, inoperative clause of the will creates ambiguity and warrants forsaking the general rule of construction. Daniel’s widow, as separate appellant, seeks to inherit on an argument that his inchoate share vested in him prior to the death of the life tenant, Elsie.

We affirm the order of the Appellate Division because a construction which would substitute for the testator’s chosen word a broader, judicially applied definition is unwarranted and would be unsettling to the law of descent and distribution. Further, the relevant vesting date can be only the death of the life tenant.

Carl V. E. Gustafson was 59 years old, married and childless when he died in 1959. He disposed of virtually his entire estate through two trusts of equal size with an integrated, complementary residuary plan. The trust established in paragraph sixth provided that testator’s brothers, Leonard and Roy, were to be equal income beneficiaries, and upon the death of either of them his one-half interest in the trust (that is, a one-fourth interest in the residuary) would pass to "his child or children”. When Leonard died in 1978, his children, Jacqueline and Daniel, took equally of Leonard’s share in this trust. Roy continues his life tenancy in the other portion of this trust. The half of testator’s estate reflected in this trust is not involved in this case.

This case and appeal revolve around the trust created in paragraph fifth of the will, in which Elsie, testator’s widow, held a life estate. Upon her death, testator’s will directed the corpus of this trust be paid as follows:

"(a) One-half to my brother, E. Leonard Gustafson.

"(b) One-half to my brother, Roy L. Gustafson.

"(c) If a brother predeceases Elsie Warren Gustafson, then his share of this Trust shall be paid over to his surviving child or children, share and share alike.

"(d) If one of my brothers shall predecease Elsie Warren Gustafson, without issue surviving, then his part of this Trust shall be paid over to his surviving brother.” Roy survived Elsie and took his share pursuant to clause (b). This, too, is not involved in the case.

At issue then is only the portion that would have been Leonard’s one-quarter residuary share under clause (a), which, because of Leonard’s predeceasing Elsie, must pass through clause (c). Leonard’s son, Daniel, having also predeceased Elsie, leaves a widow and children who now seek to take a share of the residuary through this clause, though they are not "surviving child or children”.

Courts construing donative instruments are governed by a threshold axiom: a testator’s intent, as ascertained "from the words used in the will * * * according to their everyday and ordinary meaning”, reigns supreme (Matter of Walker, 64 NY2d 354, 357-358; Matter of Cord, 58 NY2d 539, 544; see also, 4 Page, Wills § 30.7, at 44). In Matter of Villalonga (6 NY2d 477, 484), the natural and ordinary meaning of the word at issue here was held and applied as follows: “ '[c]hildren’ means immediate offspring, and we reiterate the rule of the [Matter of] Schaufele [252 NY 65, 67] case that it will never be held to include grandchildren 'unless the will as a whole shows that unmistakable intent.’ ” (Emphasis added.) The will before us cannot clear that high hurdle.

The order of testator’s priorities is straightforwardly expressed in paragraph fifth. First, he provided for his widow as long as she lived. Then, upon her death, his brothers would benefit (para fifth [a], [b]). If his brothers) predeceased his widow, then the focus of testator’s beneficial intent shifted to the "surviving child or children” of his brothers) (para fifth [c]), a generation proximate to himself. The final subdivision of this paragraph provides that if a brother dies "without issue surviving”, the surviving brother takes all. Thus, if neither issue nor children survived one brother, the other brother (or his children or his issue) would take to prevent a lapse. Accordingly, from the four corners of the will’s relevant gift provision, assigning to each word its ordinary meaning, the testamentary scheme is reasonably discernible. Carl Gustafson wanted to benefit: (1) his widow while she lived; (2) his brothers who survived his widow; and (3) if a brother did not survive his widow, then the brother’s children) who did so survive. Those preferences of the testator as to the order and distribution of his property are not "incoherent”, "inequitable”, "inconsistent” or "anomalous”, but even if they were, testators are privileged to act in any way they see fit to displace the State’s otherwise mandated, homogenous distribution by intestacy, so long as they are compos mentis. Courts, on the other hand, are not privileged to put contrary or even additional words into a testator’s actual written expression in order retrospectively to effectuate their own notions of "fair” or "equitable” distribution of estates.

Prowitt v Rodman (37 NY 41 [1867]) does not support a different result. There, an exception to the plain meaning of "children” was allowed because "the testator intended that the remote descendants should be takers * * * if there should be a failure of the immediate offspring of [the trust life tenant]” (id., at 54 [emphasis added]; see also, Matter of Welles, 9 NY2d 277, 280 ["It seems to us that the only possible occasion justifying a more inclusive meaning (of 'children’) would be to avoid failure of the estate.”]). There is no failure of an estate here, which is the only justification for the exception to the paramount plain meaning rule of construction.

Nor is this case about the testator’s intention to disinherit unknown, collateral descendants two generations removed from him. The law of decedents’ affairs recognizes no rule requiring a testator to manifest an intent to disinherit in such circumstances. Rather, our rules relate to the testator’s intent to bestow a gift and to whom. In that respect, he was plain, precise and orderly, and appellants’ claim to a gift in this trust remainder by implication would wrongly extend the plainly expressed and universally understood words. Our ruling, therefore, is natural, not "narrow”, and a faithful application of the holding of the governing precedent, not an "extension” of it. Simply put, children means children in the judicial construction of this will.

The nongifted parties also weave a number of speculative scenarios designed to splice themselves into this will and into this testamentary plan. The problem, however, is that none of their hypotheses materialized and are therefore neither materially helpful nor relevant to the disposition of this controversy.

We must also address the vesting date with respect to the remainder of the trust at issue. The death of the testator’s life tenant, his widow, controls. Rather than "happenstance”, this is the common measuring device for the orderly transferences of decedents’ assets, a rule providing specificity, not serendipity. The vesting date here is arrived at by an application of well-settled principles of the law of future interests. The language of paragraph fifth (c) created a requirement of survival (see, 2A Powell, Real Property fl 328, at 763). When the first devisee or legatee takes a life estate, words of survivorship tend to " 'establish the time of the termination of all preceding interests as the time to which survival is required’ ” (Matter of Gautier, 3 NY2d 502, 509, quoting Restatement of Property § 251, at 1266). Here, the preceding interest terminated only upon the death of testator’s widow, Elsie, in 1986. Daniel’s predecease in 1981 is irrelevant in this respect and precludes his heirs from asserting that any entitlements inchoately vested in him before Elsie’s death to accrue later to their benefit.

As we have consistently held, the plain meaning of the testamentary language itself is the surest path to the judicial discernment of a testator’s donative intent. Expanding the application of exceptions to that sound general proposition would soon swallow the rule and render less secure the effectuation of testators’ relied upon, expressed intentions. Indeed, to create a new exception out of something called "paramount intent”, different from the intent clearly expressed on the face of a will and in its only relevant donative provision, would be seriously unsettling because it would sacrifice predictability, an especially crucial element in the field of decedents’ estates where "settled rules are necessary and necessarily relied upon” (Matter of Eckart, 39 NY2d 493, 500).

Accordingly, the order of the Appellate Division should be affirmed, with costs to all parties filing briefs payable out of the residuary trust at issue.

Hancock, Jr., J.

(dissenting). I would modify the order of the Appellate Division and hold that the term "children” in paragraph fifth (c) of the will includes grandchildren and, therefore, that Leonard’s share must be divided equally between his son Daniel’s surviving children, collectively, and his daughter, Jacqueline.

In my view, construing "children” narrowly here and, thereby, disinheriting the lineal descendants of one of the testator’s brothers is unwarranted and represents a distinct— and unfortunate — extension of the "unmistakable intent” rule. In Matter of Villalonga (6 NY2d 477), where we applied that rule and declined to read "children” broadly, we emphasized that: (1) the will there was "a simple one * * * and not afflicted with the weakness of ambiguity” (id., at 481), (2) "[t]here [was] no interchangeable use made of the terms 'children’ and 'issue’ ” (id., at 481), and (3) "[n]or [did] the general distributive scheme disclose a testamentary purpose to benefit children of predeceased immediate offspring together with surviving immediate offspring” (id.). Those very factors— the absence of which led our court to construe "children” narrowly in Villalonga — are present in this case.

The will here is ambiguous. The ambiguity arises, in part, from the interchangeable use of the terms "children” and "issue” in paragraph fifth. Also, the use of "issue” in paragraph fifth (d) manifests a clear intention to benefit a predeceasing brother’s surviving lineal descendants — not just the brother’s immediate offspring as a narrow reading of "children” in paragraph fifth (c) suggests. Moreover, the intent of the testator as indicated by the language and structure of the entire will seems straightforward: to make gifts to his brothers or their respective family lines, treating them equally. Indeed, there is nothing in the testamentary scheme to suggest that the testator wanted to disinherit the family of his brother’s son (Daniel’s family), in favor of that brother’s other child (Jacqueline), on the seemingly unrelated and meaningless contingency of his brother’s son predeceasing his widow.

Significantly, the Villalonga court itself reaffirmed the well-established exception to the rule it applied, viz., that where uncertainty exists, "children” should be given a broad construction to avoid an inequitable result (id., at 482-483). Quoting Matter of Paton (111 NY 480, 486), our court reiterated that, "[o]f course, if the language employed 'is equally susceptible of one or another interpretation, we should, on every principle of right, and within the spirit of the authorities, give it that which is most equitable and consonant with the dictates of justice’ ” (6 NY2d, at 484 [emphasis added]; see also, id., at 486 [Desmond, J., dissenting]; Matter of Blodgett, 286 NY 602, affg 250 App Div 324 and 261 App Div 878; Matter of Brown, 93 NY 295, 295-299; Prowitt v Rodman, 37 NY 42, 54, 58; Guernsey v Guernsey, 36 NY 267, 271; Mowatt v Carow, 7 Paige 328; 4 Kent’s Com 419, n). Accordingly, we should construe "children” in paragraph fifth (c) as "issue” and, thereby, avoid an incoherent interpretation of paragraph fifth (c) and (d) and, at the same time, avoid the patent inequity which otherwise results.

The majority’s attempt to reconcile paragraph fifth (c) and (d) avoids neither problem. Nor does it withstand scrutiny. Paragraph fifth (d) cannot fairly be read — as the majority contends — as providing that, "if neither issue nor children survived one brother, the other brother (or his children or his issue) would take to prevent a lapse.” (Majority opn, at 453 [emphasis added].) Plainly, the language of paragraph fifth (d) does not so provide. It does no more than give the share of the estate in question to the "surviving brother” if the other dies "without issue surviving”. There is no language in paragraph fifth (d) itself that directs or permits "issue” (or "children”) to take. Only paragraph fifth (c) can be read as providing for that, and then, only if "children”, as used by the testator, is construed to mean "issue”.

Indeed, the majority’s contention, that paragraph fifth (d) permits a devise to a brother’s "issue” under certain circumstances, plainly undercuts their position and supports the view taken here. Their contention necessarily recognizes the basic point that "issue” (i.e., children of deceased children) were intended to be beneficiaries in some situations. But because, as noted, such a disposition cannot be effected under paragraph fifth (d), it follows that it can only be made under paragraph fifth (c) — i.e., by construing "children” in paragraph fifth (c) broadly as permitting "issue” to take.

Similarly, other provisions in the will either make little sense or run counter to the testator’s over-all design if "children” is narrowly construed. For example, the distribution under paragraph sixth, providing for the direct gifts to the testator’s two brothers, would have failed if one of them had died with grandchildren or other issue, but with no surviving immediate offspring. And the very same would be true for paragraph eighth — which was explicitly intended to cover any bequest elsewhere in the will that might fail. Under that paragraph, as under paragraphs fifth and sixth, if "children” is read narrowly, there would be no provision for the very real contingency of a brother dying with no surviving sons or daughters, but with grandchildren or other lineal descendants still alive. Thus, paragraph eighth, intended to avoid intestacy, would actually have permitted intestacy if read strictly.

I would resolve the ambiguities, and avoid the otherwise resulting inconsistencies and anomalies in the will, by broadly construing "children” to mean "issue”. Such a construction would, in my view, yield the most reasonable and fair result— i.e., permitting Leonard’s son’s family (Daniel’s family) as well as Leonard’s daughter (Jacqueline) to share in the estate— and, thereby, avoid the certainly unintended inequity of depriving Daniel’s children on the mere happenstance that their father died before their great uncle’s widow. Finally, construing "children” broadly would, thus, give effect to the testator’s paramount intent.

Chief Judge Wachtler and Judges Alexander and Titone concur with Judge Bellacosa; Judge Hancock, Jr., dissents in part and votes to modify in a separate opinion in which Judges Simons and Kaye concur.

Order affirmed, etc. 
      
      . Paragraph sixth (e) provides: "If a brother predeceases me, then his share of the Trust provided hereby shall be paid over to his child or children, share and share alike.”
     
      
      . Paragraph eighth provides: "If any Trust or Legacy hereunder shall be voided; or, if any intestacy develops * * * then such legacy or intestacy shall be * * * paid over to my brothers * * * or to the child or children of a deceased brother, share and share alike.”
     