
    COOK v. MUNN.
    
      N. Y. Supreme Court, First District; Special Term,
    
    
      June, 1883.
    Action to construe Will.—Legacy to Child Dying before Testator.—3 E. S. 66, § 53.
    Under 3 B. S. 66, § 53 (3 B. 8. 7th ed. 3387, § 53),—providing that when a child or other descendant of a testator, who is named as a legatee or devisee, shall die during the lifetime of the testator, leaving a child or other descendant who shall survive the testator, the devise or legacy shall not lapse, but shall vest in such surviving child or descendant &c.,—alegacy to a son of the testator, who dies before the testator, passes to and vests in the children or descendants of such deceased legatee, without administration upon his estate, and to the exclusion of his widow and creditors.
    The last clause of the statute,—“as if such legatee, or devisee had survived the testator, and died intestate,”—refers to the shares and proportions in which the legacy or devise shall vest in the children or descendants; and does not extend the enumeration of those who shall take, so as to include others than children or descendants of the deceased legatee or devisee.
    Trial by the court.
    Joseph N. Cook and others, as executors of the last will of John Munn, deceased, brought this action aginst Mary E. Munn, individually and as administratrix of Charles S. Munn, deceased and others, for a construction of the will of their testator, and to determine the rights and interests of the parties who had succeeded to the rights and interests of Charles S. Munn, a deceased son of the testator, in his father’s estate
    The facts sufficiently appear in the opinion.
    
      George F. Lyon, for plaintiffs.
    
      Miller & Frincks, for defendants.
   Larremore, J.

John Munn, by his will, gave and devised all his property, real and personal, to his executors, with the direction to convert the same into money, at such time or times as to them should seem best, with full power of sale and authority to make payments on account, from time to time, out of any funds in their hands among his legatees, before a final distribution of the estate should be made. Upon such distribution, one-fifth thereof was directed to be paid over to his son, Charles S. Munn, absolutely.

The testator died December 27, 1882. His son, Charles S., died intestate in April, 1882, leaving a widow, Mary E. Munn, and two children, the infant defendants herein. He left creditors, but no property, except that to be derived from his father’s estate.

This action is brought for a construction of his father’s will and to determine the rights and interests of the parties who have succeeded to the latter’s estate. This question necessarily depends upon the following provisions of the statute :

“Whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the life-time of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee as if such legatee or devisee had survived the testator and had died intestate” (3 R. S. 7th ed. 2287-8).

On the one hand it is claimed that this statute should be interpreted in conjunction with the statute of distributions, under which the widow and creditors of Charles S. Munn would have an interest in the estate. On the other it is urged that such estate, upon the death of his father, vested absolutely in his children.

The primary inquiry is, what was the intention of the Legislature as expressed in the statute above quoted. It contains no words excluding widows or creditors, and for this reason it is sought, inferentially, to include them in its provisions.

Without the aid of the statute the legacy unquestionably would have lapsed, and we turn to the language which it employs to ascertain the legal rights of those for whose benefit it was enacted. They are therein described as the “surviving child or.other descendant of the legatee; and if the language is to be taken literally, neither widows nor creditors are within this line of discrimination. The following cases were cited in support of the exclusive rights of the children: Van Beuren v. Dash, 30 N. Y. 393; Drake v. Gilmore, 52 N. Y. 389 ; Murdock v. Ward, 67 N. Y. 387; Luce v. Dunham, 69 N. Y. 36; Keteltas v. Keteltas, 72 N. Y. 312.

All of these cases involve the construction of a will wherein the testator had designated the class of persons who were to succeed to the interest of the devisee or legatee dying during his lifetime. It was the testator’s intention that the court sought to ascertain, and it held in each of them that a widow of a deceased legatee was not included in the class in such manner named. The case at bar is different in that the designation is by a general statute and not by the special provisions of a will. Nevertheless such adjudications, if not strict and controlling precedents, are by analogy pertinent to the present argument. No reason has been offered which would justify the court in disregarding the actual text of the statute. To hold that the wife and creditors came in as in ordinary cases of intestacy would be to do violence to both its letter and spirit. It is enacted that such legacy shall vest in the surviving child or descendant of the legatee. In order that the wife and creditors should participate in a legacy it would be necessary, according to the machinery of our law, that the fund should vest in an administrator for distribution. The construction contended for is contrary to the spirit of the law, because it would always partially, and might in some instances wholly, contravene and thwart the clear intention of the Legislature. The statute was obviously framed for the benefit of children and descendants of a deceased legatee. If it were decided that the fund vested in the latter’s personal representatives to be disposed of according to the usual course of administration, and such legatee left debts' sufficient to consume it, the children and descendants would receive nothing, and their existence would furnish merely a pretext and an occasion for the payment of such debts. It cannot be presumed that the framers of the law intended to legislate for the benefit of creditors in this roundabout manner. Without the statute the • legacy would lapse. The statute comes in remedial!y and provides that if certain persons are in existence such legacy shall not lapse but shall vest in them. Evidently the act was framed for their benefit, and they are the sole beneficiaries contemplated by it.

The remaining clause of the statute,“as if such legatee or devisee had survived the testator and had died intestate,” may be given full effect in harmony with the foregoing construction. It refers to the shares and proportions in which the legacy or devise shall vest in the children or descendants, and provides that the same shall be divided among them according to the analogy of the statute of distributions, or of descent, according to the nature of the property.

The'conclusion is that all of the fund in dispute is the property of the children of Charles S. Munn, deceased, and that Mary E. Munn is entitled to its custody as their guardian, upon giving the requisite security.  