
    Matter of the Judicial Settlement of the Account of Sarah Atwater Manning, as Sole Acting Executrix, etc., of Frederick Royal Manning, Deceased.
    
      (Surrogate's Court, Kings County
    
    
      Filed October, 1899.)
    "Will — Construction of Devise Disinheriting a Grandchild whose Patent Died Before the Testator.
    A testator, who had devised a farm to his then unmarried son Frederick, recited by the first codicil to his will that he had since sold the farm, and thereupon he bequeathed its proceeds to his said son in lieu thereof. In a second codicil he recited that he had sold another farm originally devised for the benefit of his three other unmarried children, and thereupon he bequeathed to them the proceeds in lieu thereof. It was then provided that “ If my wife or any of my four children be not living at the time this will takes effect, the money bequeathed to them shall be divided among the survivors in the same proportion as other property specified in the will.” He had by his will given his residuary estate to his children in certain proportions, but had bequeathed no money to his wife, nor provided for her in any manner, except in the residuary clause. Frederick died three years before the testator, and left a son.
    
      Held, that the terms of the second codicil excluded the son of Frederick from any share in the estate; that it was the intention of the testator that the whole share of any of his children, who died before himself, should be divided between his wife and the surviving children in the proportion stated in the residuary clause.
    Reversed 50 App. Div. 407.
    Judicial settlement of the account of an executrix.
    J. R. Marcellus (G. G. Reynolds, of counsel), for executrix; Joseph M. Allen, special guardian.
   Abbott, S.

Frederick Royal Manning died on the 2d day of March, 1898. He left a last will and testament dated June 7, 1888, with two codicils attached, dated respectively June 25, 1889, and March 11, 1892.

At the time of the execution of these instruments, his wife and four children were all living, the children being unmarried. On December 19, 1893, nearly two years after the execution of the last codicil to his will, Frederick Arnold Manning, one of the sons of the testator, married, and on the 26th day of September, 1894, Morgan Arnold Manning was bom of said marriage.

On December 3, 1895, and prior to the death of” the testator, his son Frederick Arnold Manning died.

By item V of his will, the testator gave and devised to his son Frederick Arnold Manning, a tract of land situated in the county of Monroe, State of Iowa, and by item VI, he gave and devised to his executors in trust a farm containing 712 acres, situated in the county of Wapello, in the State of Iowa, in trust to sell the same and divide the proceeds equally between his three children, Sarah Rose Manning, Edgar Atwater Manning and Marguerite Manning. He then directed that in case any of the real estate already devised should pass from Ms possession during his lifetime the money consideration received therefor should go to the individuals respectively named in items V and VI of his will, the proceeds of the real property described in item V to his son Frederick Arnold and the proceeds of the real estate in item VI to his other three children named in item VI.

His residuary estate he disposed of as follows: To his wife, eight-thirtieths; to his son, Dr. Frederick Arnold Manning, six-thirtieths; to his son, Edgar Atwater Manning, six-thirtieths ; to his daughter, Sarah Rose Manning, five-thirtieths; to his daughter, Marguerite Manning, five-thirtieths.

These are the only portions of the will material to the issue before me.

By his first codicil he recites the fact that he has sold the land devised to his son Frederick Arnold Manning by the fifth item of his will and has realized the net sum of $3,000 therefor, and gives and bequeaths the said sum of $3,000 to his son Frederick in lieu of the realty so devised. He then provides that in the distribution of his estate, securities held by him may be turned over to his legatees at their market value on account of their legacies.

By the second codicil he recites the fact that he has sold the farm referred to in item VI of his will and gives to each of his three children, Sarah, Edgar and Marguerite, the sum of $3,000 in lieu of the devise of land contained in his will. He then provides: “ If my wife or any of my four children be not living at the time this will takes effect, the money bequeathed to them shall be divided among the survivors in the same proportion as other property specified in the will.”

Ho money was bequeathed by testator to his wife either by the will or codicils other than the general provisions for her out of the residuary estate.

The above-quoted provision of the second codicil is the one which calls for interpretation.

I am not unmindful of the principle laid down in the authorities cited by counsel for the infant Morgan Arnold Manning to the.effect that, if a testamentary disposition be susceptible of two constructions, one of which will have the effect of disinheriting a lineal descendant of the testator, and the other will give him a share of the estate, the latter construction should be adopted by the court. Scott v. Guernsey, 48 N. Y. 106; Low v. Harmony, 72 id. 414; Matter of Brown, 93 id. 295; Stokes v. Weston, 142 id. 439; Matter of Miller, 18 App. Div. 215.

I should have no difficulty in applying this rule of construction to the disposition in question, if it had related exclusively to testator’s four children and had not also included testator’s wife.

It would be unreasonable to assume that the testator, in the same sentence, meant one thing by “ money bequeathed ” with reference to his wife, and another with reference to his children.

It is true that the chief subject of each codicil was the land which had been specifically divided, and .both were made for the purpose of substituting the proceeds of sale of land for the land itself or rather for the purpose of specifying the amount realized upon the respective sale, and the quoted provision was apparently thrown in by way of parenthesis.

At the time the second codicil was made none of testator’s children were married, and had that condition of affairs continued, doubtless the limitation imposed would have accomplished exactly what the testator desired.

I am of the opinion that it was the testator’s intention at the time the second codicil was executed that the entire share of the estate of any child who predeceased him should pass to his wife and surviving children in the proportions specified in the residuary clause of his will. Doubtless he did not consider the contingency that one of his children might die before him leaving issue surviving him. Else he might have provided for that contingency. The difficulty is that he did not so provide.

I understand it to be conceded that the infant takes a share of the gratuity fund of the New York Produce Exchange.

As to the “ new fund ” created in item X of the will, equal in amount to the gratuity fund, that was disposed of by the will and became a portion of the respective shares passing to the residuary legatees under item VIII, and constitutes a part of the money bequeathed,” mentioned in the provision quoted.

Let decree enter accordingly on two days’ notice.

Decreed accordingly.  