
    Coles v. Brown and Wife and others.
    Poughkeepsie, Aug. 1 ;
    Sept. 2, 1846.
    A testator devised a farm to his son N. for life, and after N.’s death, directed his executors to sell the same, and to divide the proceeds equally amongst all his children except his son S.; but if any of them should not then be alive, then such respective shares should go to their respective heirs. He further directed that the heirs of S. should take the share made by including his name in the number of shares, whether he were living or dead at the time of the distribution. Held, that the heirs of N. were entitled to a like share in the distribution of the proceeds.
    John Fisher, of the town of Greenburgh, in the county of Westchester, died in July, 1805, seised and possessed of a farm of about 160 acres, lying on the line between Greenburgh and Mount Pleasant; leaving him surviving the following children and heirs ; viz., his sons, Nicholas, William, Samuel and James; and his daughters, Sarah wife of Robert McCord, Mary wife of James Coles, and Fanny wife of James Sniffin. He left a will, duly executed, dated December 10th, 1804, by which among other things, he made provision for his wjfe, during her life, in part by a charge upon the above farm, and in part upon a small farm in the town of Scarsdale, which he devised to his son Samuel. The fifth clause in the will, was as follows :
    “ To my son Nicholas, I give all the farm whereon I now live,” (describing the 160 acre farm before mentioned,) “ which said lands I give to said son Nicholas, during his natural life; and after his decease, I direct my executors to sell and dispose of said lands to the best advantage, and the moneys from thence arising, to be equally divided amongst all my children, both sons and daughters, except my son Samuel; but if any of them should not be alive at the time óf said Nicholas’s decease, then such respective shares to go to their respective heirs. And with respect to my son Samuel, 1 direct that his name should be included in the number of said shares, but that said share shall not come to him, but whether he be living or not at the time when said distribution shall take place, it shall be given equally to his heirs.”
    
      In a subsequent part of the will, he gave his residuary personal estate, to his sons William and James, and his daughters Sarah, Mary and Fanny; the shares of those who were deceased to go to their heirs.
    Nicholas Fisher, upon the death of his father, entered into possession of the farm in question, and occupied it until his death on the 20th of March, 1845. He left but one heir, his daughter Mary, the wife of William Brown.
    Two of the executors named in the will, having died, and the third, who never qualified, having by reason of old age and infirmity become incompetent to execute the power of sale ; Robert Coles, the only child and heir of Mary Coles the testator’s daughter, (who died in 1824,) filed the bill in this cause, to have the power of sale executed, and the proceeds distributed, according to the direction of the testator.
    The bill alleged that Mary Brown and her husband, had no interest in the premises, or in the proceeds to arise therefrom, either under the will, or as heirs of John Fisher.
    The descendants of John Fisher were made defendants in the suit. Brown and his wife answered the bill, insisting that she, as the heir of Nicholas Fisher, was entitled to one seventh of the proceeds of the farm, under the will. The cause was heard on the bill and answer.
    
      C. A. Purdy, for the complainant.
    
      J. W. Tompkins, for the defendants Brown and wife.
   The Assistant Vice-Chancellor.

The language of the testator is clear and explicit, that after the decease of his son Nicholas, the lands shall be sold and the moneys arising therefrom, shall be equally divided amongst all his children, both sons and daughters, except his son Samuel; and if any of them should not be alive at the death of Nicholas, then such respective shares were to go to their respective heirs. Samuel’s heirs were' to participate in the distribution, whether he were living or not.

The attempt to exclude the heirs of Nicholas from a share in the division, is equivalent to inserting another exception in the will, which does not now exist. Nicholas was a son, the division was not to take place till he died, and the will declares that the heirs of any child, who should be dead, should take their parents share in the distribution. I do not see how it is possible to exclude the heir of Nicholas from the distribution, under the positive terms of this will. If the life estate had been given to the testator’s widow, instead of Nicholas, nobody would have raised a doubt on the clause. And indeed, the only reason for a doubt now, is not on any defect or obscurity in the devise of the remainder, but because the life estate was devised to Nicholas.

In order to cut off his heir from the remainder, I am to presume that the testator did not intend to leave to Nicholas and his heirs, any greater aggregate interest in the lands, than he did to each of his other children except Samuel; an intention which I can know nothing about, otherwise than as this will declares it to me. And I must also presume, that when he said “all my children’? except Samuel, he meant all his children except Nicholas and Samuel; and that “all, both sons and daughters,” except Samuel, was a similar inadvertence in omitting to except Nicholas. Such a mode of construction would lead to most wild and extravagant results.

The testator, in his dispositions relative to his son Samuel, and the residuary gift to five of his children by name, exhibited a clear conception of what he was doing, and an intelligent discrimination between his different children. He has thought proper to give to Nicholas and his family, more than he gave to others of his children and their families ; and this court cannot control his partiality in this respect, without making a new will! for him. I have no doubt that Mrs. Brown, as the heir of Nicholas, is entitled to a share in the proceeds of the lands.

There must be a decree for a sale of the lands, pursuant to the will, and the costs of the parties are to be paid out of the proceeds, and the residue distributed.  