
    In the Matter of the Application of Margaret C. Devoe for an Order Directing the Payment Over to Her of Certain Funds Held by Miln P. Palmer, as Trustee under the Will of Frances B. Hegeman, Deceased. Margaret C. Devoe, Appellant; Miln P. Palmer, as Trustee under the Will of Frances B. Hegeman, Deceased, and Others, Respondents.
    
      Will—gift of a remainder, with limitation over in case of death before the time fixed for its payment —' * issue ” held to include children — ‘ ‘ issue and descendants ” in primary clause held not to exelude the application of the substitutionary clause — the New York “ Statute^of Distribution” intended.
    
    A testatrix, who was a life-long resident of the city of New York, gave, by the 3d item of her will, to her executors a portion of her estate in trust “to make the following investments and to pay the legacies hereinafter named, that is to say : ”
    “ Fourth. To invest the sum of thirty thousand dollars and pay over the net interest and income from ten thousand dollars thereof to Aaron Mixell, the husband of my deceased niece, Cynthia Mixell, so long as he shall, live and ■ remain single, and on his decease or remarriage that they pay over the said sum of ten thousand dollars to the lawful issue of my said niece, Cynthia Mixell, share and share alike; and as to the further sum of twenty thousand dollars, that they divide the same into as many shares as there shall be children . of my niece Cynthia living at my death, and that they keep the same invested and apply the interest or income from one of said shares to the use of said children, respectively, and on the death of said children, respeclively, -that they pay over the principal and accumulations of interest to their
    issue and descendants according to the Statute of Distribution in cases of intestacy.”
    The "will further provided:
    “ Third. I give,, devise and bequeath all the residue of my estate and such as I may die seized of (specifying property) to my executors hereinafter named, and the survivor of them, in trust to sell and convey so much and such parts-. of the real estate as shall be necessary with my personal estate to pay debts and legacies and expenses of executing the trusts hereby reposed, and to make up the funds above disposed of and given to my executors, and as to the residue thereof until the arrival at the age of twenty one years of George 0. Palmer, the son of my nephew, Nicholas F. Palmer, to rent the same, and. after paying taxes, assessments and other charges, to apply the rents to the-use of the above-named parties, excluding James 0. Aiken and Gilbert B. Borland; and on the arrival at age of twenty-one years of the said George 0. Palmer to sell and convey the same and divide the proceeds of sale to and •among the parties named in the several clauses in this will (except James C. Aiken and Gilbert E. Borland) in the same proportions and in the same manner as the said investments and legacies are directed to be paid.
    
      “Fourth. * * * In case of the death of any of the beneficiaries or persons entitled to share in the investments herein directed to be made before the time limited for the payment thereof, my will is that the same be paid over .to their next of kin as according to the Statute of Distributions their personal-estates would be divided and distributed.”
    The testatrix’s niece, Cynthia Mixell, was survived by her husband, Aaron Mixell, and four children, Aaron J. Mixell, Mary D. Devoe, Letitia J. Devoe and:
    . Susie B. Mixell, all of whom survived the testator. Aaron Mixell subsequently died and the §10,000 in which he had a life interest was duly distributed. Th& balance of the $30,000 was divided by the executors into four trust funds-of §5,000 each. Letitia Devoe had a life interest in one of such funds, the amount of which was increased by an addition from the residuary fund. The said Letitia Devoe subsequently became a resident of Denver, Col., and there died intestate, leaving, surviving her, her next of kin, her sisters, Mary D. Devoe and Susie Wood (formerly Mixell), and her niece, Cynthia J. Mixell, ■ daughter of her deceased brother, Aaron J. Mixell. Letitia Devoe had had ■ one child, Bdmond N. Devoe, who died while a resident of Colorado, leaving surviving him a widow, Margaret C. Devoe, and his mother, Letitia J. Devoe.
    
      Held, that on the death of Bdmond M. Devoe before his mother the remainder to> which he would -have been entitled had-he survived her went to his next of kin under the 4th clause of the will;
    That the word “issue” as used in the will included children; That the use of the words “issue and descendants,” contained in the primary gift- ■ of the remainder, did not exclude the application of the substitutionary clause; That the Statute of Distributions which furnished the rule for the distribution
    ■ was the. New York statute and not that of Colorado, and that the next of kin of -Edmond M. Devoe was his mother and not his widow.
    
      Appeal by the petitioner, Margaret 0. Devoe, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 18th day of May, 1901, confirming the report of a referee appointed to take proof and report to the court as to the persons entitled to take and receive a certain fund held by Miln P. Palmer, as trustee under the will of Frances B. liegeman, deceased, for the benefit of Letitia Devoe during her life.
    
      Hector M. Hitchings, for the appellant.
    
      Joseph S. Wood, for the respondents.
   JENKS, J.:

This is an appeal from an order of the Special Term confirming the report of a referee appointed to take proof on certain questions, and to report as to the ptersons entitled to take and receive a certain fund heretofore held in' trust by Palmer as trustee under the last will and testament of Frances B. liegeman, deceased, for the benefit of Letitia Devoe during her lifetime.

Frances B. liegeman, a life-long resident of the city of Mew York, died there in 1878, unmarried, leaving no nearer relatives than nephews and nieces, and leaving a last will and testament dated August 31, 1876, which was probated in February,'1878. All of the surviving nephews and nieces were mentioned in the will, the pertinent features of which are as follows:

Second. I give, devise and bequeath to my executors hereinafter named and the survivor of them, so much of my estate in trust nevertheless as will enable them to make the following investments and to pay the legacies hereinafter named, that is to say: ” (subdivision) “ Fourtíi: To invest the sum of thirty thousand dollars and pay over the net interest and income from ten thousand dollars thereof to Aaron Mixell, the husband of my deceased niece, Cynthia Mixell,- so long as he shall live and remain single, and on his decease or remarriage that they pay over the said sum of ten thousand dollars to the lawful issue of my said niece, Cynthia Mixell, share and share alike ; and as to the further sum of twenty thousand dollars^ that they divide the same into as many shares as there shall be children of my niece Cynthia living at my death, and that they keep the sanie invested and apply the interest or income from one of said shares to the use of said children, respectively, and on the death of said children, respectively, that they pay over the principal and accumulations of interest to ■ their issue and descendants. according to the Statute of Distribution in cases of intestacy. * "* *
“ Third. I give, devise and bequeath all the residue of my estate and' such as I may die seized of (specifying property) to my executors hereinafter named, and the survivor of them in trust to sell and convey so much and 'such parts, of the real estate as shall be necessary with my personal estate to pay debts and legacies and expenses of executing the trusts hereby reposed, and to make up the funds above disposed of and given to my executors; and as to the residue thereof until the arrival at the age of twenty-one years of George C. Palmer, the son of my nephew, Nicholas F. Palmer, to rent the same, and after paying - taxes, assessments and othei •charges, to apply the rents to the irse of the above-named parties, -excluding James C. Aiken and Gilbert E. Borland; and on the arrival at age of twenty-one years of the said George C. Palmer to sell and convey the same and divide the proceeds of sale to and among the parties named in the several clauses in this will (except James 0. Aiken and Gilbert' E. Borland), in the same proportions and in the same manner as the said investments and legacies are directed to be paid.
Fourth. My executors are hereby authorized and empowered to sell and convert such part or parts of my personal estate as may be necessary to provide funds for the investment herein directed to be made, and for the payment of the legacies, and to call in and reinvest the same from time to timé as occasion or necessity may require, and in case of the death of any of the beneficiaries or persons entitled to share in the investment herein directed to be made before the time limited for the payment thereof, my will is that the same be paid over to their next of kin as according to the Statute of Distributions their personal estates would be divided and distributed.”

•One of the nieces, Cynthia Mixell, died in 1872, leaving her Surviving her husband, Aaron Mixell, and four children, Aaron J. Mixell, Mary D. D.evoe, Letitia J. Devoe and Susie E. Mixell, all of whom survived the testatrix. Aaron Mixell died -November 21, 1878, and the $10,000 in which he had a life interest was duly-distributed. The further sum of $20,000, mentioned in subdivision 4 of the 2d clause of the will, was divided by the executors in four trust funds of $5,000 each. In one fund Letitia Dévoe had a life' interest, and by addition from the residuary estate $2,336.95 was added to the said $5,000, so that the sum thereof is, $7,336.95. Letitia Dévoe became a resident of Denver, Col., in 1893, and there died intestate in 1899, leaving no child, children ór adopted child or children, or any descendants of either, and no father and no mother. Her nearest relatives and next of kin were her sisters, • Mary D. Devoe and Susie Wood, and her niece, Cynthia J. Mixell, daughter of her brother who died October 31, 1896, The said Letitia DeVoe had oné child, Edmund M. Devoe, who be-carné a resident of Colorado in 1892, where he remained until his death at the age of thirty-three, on August 4, 1899, leaving a widow, Margaret C. Devoe, still living. Edmund M. Devoe never had any child or adopted child, and his next of kin at his decease was his mother, Letitia J. Devoe,

The learned Special Term, Mr. Justice Keogh presiding, confirm- ' ing the report of the referee, Marcus B. Campbell, wdio submitted a well-considered opinion, decided that on the death of Edmund M. Devoe before his mother, the life tenant, the remainder to which he would have been entitled, had he survived her, went to his' next of kin under the provisions of the 4th clause of the will which provides : “ And in case of the death pf any of the beneficiaries or persons entitled to share in the investments herein directed to be made, before the time limited for the payment thereof, my will is that the same be paid over to their next of kin, as, according to the Statute of Distributions, their personal estates would be divided and distributed-.”

We think that the decision of the learned Special Term was right. The word “ issue,” as used in this very will, includes children, as the Court of Appeals has decided. (Palmier v. Horn, 84 H. Y. 516.) And we think that the. construction of the will involved in the litigation of Palmer v. Dunham (125 N. Y. 68) is directly in point upon the question presented by this appeal. In that case the court said: “ The gift of the remainder was to a class, followed by a substitntionary gift of the share of any one in the class who should die to the next of kin of such deceased person.” The learned counsel for the appellant would differentiate the authority of Palmer v. Dunham (supra) on the ground that the language now up for construction is not “ lawful issue,” but “ issue and- descendantsIn Paimer v. Dunha/m the class was the issue; in this case the class is the issue and the descendants, but I think that the reasoning and determination of the court in that case applies. I am of opinion that the effect of these words is but to. extend the class capable of taking the remainder and in no way tends to exclude the application of the substitutionary clause. It but removes its application one step farther by requiring that not only must there be.no issue, but no descendants, before the said clause becomes effective. And as, in matter of fact, there was neither issue nor descendants of Letitia J, Devoe her surviving, the substitutionary clause applied. I am of opinion that the next of kin in this case is the mother .of Edmund M, Devoe, and not his widow. (Murdock v. Ward, 67 N. Y. 387, 389 et seq. ; Luce v. Dunham, 69 id. 36; Platt v. Mickle, 137 id. 106.) The will directs that the personalty in question be paid to the next of kin, and the Statute of Distributions is merely invoked to afford the rule. (Luce v. Dunham, supra) Conceding, however, that the Statute of Distributions is not merely invoked to afford the rule, but is made the means of distribution, I think that our statute, not that of Colorado, must, govern. (1 Williams Exrs. [7th Am. ed.] *182, note; Despard v. Churchill, 53 N. Y. 192; Harrison v. Nixon, 9 Pet. 483, 502.)

The order appealed from must be affirmed, with costs:.

Goodrich, P. J., Bartlett, Woodward and Hirsohberg, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  