
    Matter of the Judicial Settlement of the Accounts of the United States Trust Company of New York, as Successor Trustee of a Certain Trust Created by the First Codicil, to the Last Will and Testament of Eliphalet Wheeler, Deceased.
    (Surrogate’s Court, New York County,
    November, 1901.)
    Contingent remainder — “ Issue ”.
    A testator directed that after the death of his daughter Emily thé principal" of a fund,- of which she received the income for life, should . be divided “ equally to and among my said daughters that shall then be living and the issue of such of my said daughters as may have then died leaving issue, such issue to take the share their parent would have taken if living.” Emily died.
    Held, that the interests were contingent upon the existence of such remaindermen when the time for distribution arrived and that the descendants of a daughter who died before the testator took nothing.
    That “ issue ”c, meant descendants and that the daughters and the descendants of daughters who did survive the testator were those entitled, descendants representing such a deceased daughter taking per stirpes.
    Eliphalet Wheeler, the testator, died March 15, 1866, leaving a will and three codicils, which were proved" in the county of New York. The first codicil contained the following provision:.
    
      “ Third. I direct my said executors to invest out of the proceeds of the sale of my real estate a sum of money sufficient to produce an annual interest or income of five hundred dollars and apply said interest or income to the use of my daughter Emily A. Spencer so long as she shall remain sole and unmarried, and upon her marriage or decease to pay and divide the said principal sum equally to and among my said daughters that shall then he living and the issue of such of my said daughters as may have then died leaving issue, such issue to take the share their parent would have taken if living.”
    
    A fund of $10,000 was set apart hy the executors, and the $500 annuity paid to Emily A. Spencer, the beneficiary, until her death, March 22, 1900. She left no issue. On the 29th of March, 1901, the present trustee was appointed for the purpose of completing the administration of the trust and distributing the trust fund. No- objections to the account were presented, and the only question to be determined is the meaning of the word “ issue ” in the above-quoted paragraph. At the time of the testator’s death, he had eight daughters. A ninth daughter, Mrs. Sullivant, had died before him, leaving two children, who still survive. Of the other seven daughters, only two survived Mrs. Spencer, namely, Mrs. Yost and Mrs. Wells. Five daughters had died, and their stocks are represented by children, grandchildren and great-grandchildren. In addition, there are various grandchildren and great-grandchildren whose parents are living. In all, there are about seventy-six descendants of the testator’s nine daughters. The trustee’s contention was that the eight daughters who survived the testator and their issue are the only persons entitled to share in the distribution, and that the word “ issue,” as used in the first codicil, is limited to children living at Mrs. Spencer’s death, of the five daughters who died before her, and that upon this theory the fund should be divided into sixths and distributed, one-sixth to the assignee of Mrs.Yost; one-sixth to Mrs. Wells; one-sixth to the assignee of the children of Mrs. Sutton; one-sixth to the surviving children of Mrs. Carpenter; one-sixth to the surviving child, Mrs. Middleton. Clarence B. Caldwell, an infant, is the great-great-grandson of testator. He is the only child of his mother, Edith S. Caldwell, deceased, great-granddaughter of testator, who was one of the children of Caroline E. Sullivant, deceased (granddaughter of the testator), who was one of the children of Ann Louisa Sutton, deceased (a daughter of the testator), and the only surviving issue of the stock of his mother, who is deceased, and, by his special guardian, claims to be entitled to á distributive share of the fund, as “ issue ” of the testator.
    Edward W. Sheldon, for trustee.
    James T. Lee, special guardian, for Clarence B. Caldwell, infant.
    Abel Crook, for Florence W. B. Platt.
   Thomas, S.

The interest of each remainderman iñ the fund set apart for the trust created by the testator for the benefit of his daughter, Mrs. Spencer, during her life, consisted in a right to share in the distribution and division which the trustee was directed to make on the death or remarriage of Mrs. Spencer. Such interests were, therefore, contingent upon the existence of such remainderman when the time for distribution arrived. Matter of Crane, 164 N. Y. 71. The assignees of Caroline E. Sullivant and of Mary S. Allen will, therefore, take nothing. The word issue,” in its general sense, imports descendants to an indefinite degree. When used in relation to the word “ parent,” it has been sometimes construed as synonymous with children, but this rule of construction has not always been followed, and when applied to wills easily yields to slight considerations of prohable testament-

ary intention. United States Trust Co. v. Tobias, 21 Abb. N. C. 392; Soper v. Brown, 136 N. Y. 244. I conclude that, as used and intended hy the testator in this case, thb word “ issue ” means “ descendants,” and that in the division now about to be made the eldest living representatives of the stock of each of the testator’s eight daughters referred to by him as my “ said daughters,” and thus excluding the descendants of the daughter who predeceased him, are entitled to share, those representing a deceased daughter taking per stirpes and not per capita,. The decree proposed will be corrected to meet this view and again noticed for settlement.

Decreed accordingly.  