
    (109 App. Div. 798.)
    PHELPS v. CAMERON.
    (Supreme Court, Appellate Division, Second Department.
    December 29, 1905.)
    Wills—Construction—Designation oe Devisees—Lawful Issue.
    Testator’s will directed that his estate be divided into as many parts as he had children, the income of each part to go to a child for life, and upon the child’s death the part to be divided among the “lawful issue” of the child. At the time the will was executed several of testator’s children were married and had children. Held, that the daughters of a deceased daughter and a grandchild of such daughter took equally under the clause “lawful issue.”
    Hirschberg, P. J., and Jenks, J., dissenting.
    Appeal from Judgment on Report of Referee.
    Action by Charles Henry Phelps, as one appointed to execute trusts left unexecuted under the will of William Wall, deceased, against Rosalie De Goicouria Cameron and others. From a portion of a judgment construing the will, Rosalie De Goicouria Cameron appeals.
    Reversed.
    ' Argued before HIRSCHBBRG, P. J., and BARTLETT, WOODWARD, JENKS, and HOOKER, JJ.
    Samuel Biker, Jr., for appellant.
    John P. East, for respondent Phelps.
    John M. Harrington (Grattan Colvin, on the brief), for respondents Cameron and others.
    William Temple Emmet, for respondents Robinson and others.
   WOODWARD, J.

William Wall, a resident of this state, died on the 20th day of April, 1812, leaving a last will and testament, which was duly admitted to probate. He was survived by eight children, among them being his daughter Mary Cecelia (designated in the will as Celia), who subsequent to the death of her father married the defendant Albert V. De Goicouria. By the terms of his will William Wall, deceased, gave all his property to his executors in trust, and, after making certain provisions which are not material to the question here presented, directed his trustees to divide the residue of his estate into eight parts, and to invest the same separately, and apply the income of one of such parts for the use of each child during life, and upon such child’s death to pay and divide the capital among the lawful issue of such child equally. All of the trusts are alike and expressed in the same terms; the only one directly affected by this appeal being that created for the benefit of his said daughter Mary Cecelia De Goicouria, which is in the following language:

“And upon the further trust to apply the income of the remaining equal eighth part or share to the use of my daughter Celia during her natural life, and at her decease to pay and divide the principal of such last-mentioned eighth part or share to and among the lawful issue of my said daughter Celia equally.”

The daughter Celia, subsequently known as Mary Cecelia De Goicouria, died on the 18th day of August, 1904, leaving, her surviving, her two daughters, the respondents Rosalie W. De Goicouria Cameron and Alice W. De Goicouria, and a grandchild, the appellant, Rosalie De Goicouria Cameron, the only child of the said Rosalie W. De Goicouria Cameron. The respondents, the two daughters of Mrs. De Goicouria, claim, and in this they are sustained by the judgment from which this appeal is taken, that they are entitled to have the principal divided equally between them, each taking one-half, while the appellant, Rosalie De Goicouria Cameron, on the other hand, contends that she comes within the “lawful issue” contemplated by the will of William Wall, and should participate equally with her mother and aunt, each taking one-third of the same. The only question involved is the legal interpretation of the phrase “lawful issue,” as used by the testator. Is it to be taken in its technical legal sense, as embracing descendants, or is it to have a limited sense, and be confined to the children of the life tenant?

We look to the language of the will in vain for any indication of the testator’s understanding of the phrase “lawful issue.” He uses the same expression in relation to each of the eight trust estates, and nowhere in the will is there any reference to children or parents. He gives each of his eight children a life use of one-eighth of his estate, after making provisions for his debts, funeral expenses, support of his widow, etc., with remainder over to the lawful issue of each of such children, and this is all the light we have upon the subject from the language of the will. At the time of the making of the will the daughter Celia was unmarried, but several of the other children of the testator -were married and had children. There were in existence, at the time of making the will and at the death of the testator, those who were to become the life tenants, as well as those who would take upon the death of the parents, and with these latter in existence, there was not only the potentiality of great-grandchildren; but the probability of them in the natural course of events, and the fact that the testator used but a single phrase in connection with each of the trusts, and nowhere in the will uses language suggesting a limitation to children, makes it difficult to give any other construction to the words “lawful issue” than the legal signification, which unquestionably is equivalent to descendants. Drake v. Drake, 134 N. Y. 220, 224, 32 N. E. 114, 17 L. R. A. 664, and authorities there cited ; Soper v. Brown, 136 N. Y. 244, 250, 32 N. E. 768 ; N. Y. Life Ins. & Trust Co. v. Viele, 161 N. Y. 11, 19, 20, 55 N. E. 311, 76 Am. St. Rep. 238, and authorities there cited. In the Soper Case the learned judge writing the unanimous opinion of the court says:

“There are cases where it may be conjectured that this broad meaning would produce a result not contemplated by a testator.”

And it is quite probable that the case at bar is such a one, but the learned jurist continues:

“It is settled that under a gift to ‘issue,’ where the word is used, without any terms in the context to qualify its meaning, the children of the ancestor and the issue of such children, although the parent is living, as well as the issue of deceased children,take in equal shares, per capita and not per stirpes, as primary objects of the disposition. It might well be doubted whether a testator actually contemplated that the children of a living parent would take an. equal interest with the parent under the word ‘issue,’ or that the issue of a deceased child should not take by representation the share of its parent. Lord Loughborough referred to this in Freeman v. Parsley, 3 Ves. 421, and while he held that all were entitled equally per capita, said that he expected that it was contrary to the intention, and regretted that there was no medium between the total exclusion of the grandchildren and admitting them to share with their parents.”

While- it may be that this language was not essential to the determination of the question then before the court, a careful examination of the cases which must be regarded as controlling here shows that it is in harmony with the law as understood and administered in this state, and it is too late, if it were desirable, to change the meaning of words having a well-defined legal interpretation. In Palmer v. Horn, 84 N. Y. 516, which has gone perhaps as far as any case in this state to limit the phrase “lawful issue” as used in wills, the meaning of the word “issue” was clearly restricted to children by the terms of the will, as the terms “issue” and “children” were used synonymously. Drake v. Drake, 134 N. Y. 220, 225, 32 N. E. 114, 17 L. R. A. 664. And it was pointed out that whether it was to be understood as referring to children or to descendants must depend “upon the intention of the testator as derived from the context of the entire will, or such extrinsic circumstances as can be considered.” It was also suggested by the learned jurist writing in Palmer v. Horn, supra, that the word would be limited to children “upon a slight indication in other parts of the will that such was the intention of the testator”; but an examination of the cases shows no instance in which the court has felt justified in construing the words in and of themselves as limiting a gift to the immediate children, and in the case at bar we are wholly unable to discover in the context, in the will as a whole, or in any of the circumstances surrounding the testator, anything to indicate that the words “lawful issue” were used in any other than their legal sense. It may be, as suggested, that if the testator had realized that his great-grandchild was to become the competitor of his grandchildren in the distribution of one of these trust estates he would have used different language; but the trouble is that he has not done so, and the authority of this court is limited to the construction of the language used, in the light of the circumstances under which it was employed, and the judicially determined use of language cannot be changed to- suit our conceptions of what would have been the testator’s intention if he had foreseen what has actually happened.

The judgment, in so far as it is appealed from, should be reversed.

Judgment reversed, and new trial granted: costs to abide final award of costs. All concur, except HIRSCHBERG, P. J., and JENKS, J., wlio dissent.  