
    Miln P. Palmer, Resp’t, v. David H. Dunham et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed December 2, 1890.)
    
    Will—Construction of—“Lawful issue.”
    Testatrix died in 1877, and by her will gave to her executors “ so much of my estate in trust, nevertheless, as will enable them * * * to invest the sum of $20,000, and pay over the net interest and income thereof to my niece, Mary A. Dunham, for and during her natural life, and upon her death to pay over said principal sum to her lawful issue share and share alike.” By a subsequent clause in case of the death of beneficiaries, their share was to be paid to the next of kin according to the statute of distributions. Mary Dunham, niece of testatrix, died July 30, 1887, leaving one son. Another son had died in 1886, leaving three children, andsiill another had died in 1871, leaving Annie I\ Dunham, his only child. Held, that "lawful issue” meant the children of the beneficial j, and that when testatrix died in 1877, the beneficial interest^ in the fund passed, under the will, to her niece, Mary A. Dunham, for life, with remainder in her two children, David H. and John B. Dunham, and nothing passed to Annie P. Dunham.
    Appeal from judgment of the supreme court, general term, first department, affirming that part of the judgment below which adjudicated that Annie P. Dunham was not entitled to share in the fund created by the will of Frances B. Hegeman.
    
      Sidney B. Stuart and Theodore Be Witt, for app’lts; Joseph S Wood and Abel B. BlacJcmar, for resp’t.
    
      
       Affirming 23 N. Y. State Rep,, 771.
    
   O’Brien, J.

This appeal involves the construction of certain clauses contained in the will of Frances B. Hegeman, deceased. The will was executed in the year 1876, and the testatrix died in the year 1877. The action was brought by the trustee under the will to settle his account, and he also asks that the court give construction to and determine the meaning of certain provisions of the will. A referee was appointed to state the account, and report the facts, with his opinion thereon, to this court. The facts and the law applicable to the questions in the case, as found by the referee, were substantially adopted by the court at special term. The portion of the judgment claimed to be erroneous is that whereby it was adjudged that “Annie P. Dunham is not entitled to one-third or any share of the legacy left for the benefit of Mary A. Dunham, by the first subdivision of the second clause of the will of Frances B. Hegeman, but the trust fund held for the said Mary A. Dunham is to be divided equally between David H. Dunham, who will tolce one-half thereof, and the three children of John B. Dun-ham, Maude A., Alden B., and Edgar A., who will together take the other half thereof.” Annie P. Dunham claimed that she was entitled to a share of the legacy above mentioned, and she appealed to the general term, and upon affirmance of the judgment against her there, she appeals to this court.

The testatrix in her will made numerous bequests to nephews and nieces, but we are concerned with none of these bequests in the determination of this appeal except that contained in the first subdivision of the second clause of the will, which reads 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, first, to invest the sum of twenty thousand dollars, and pay over the net interest and income thereof to my niece, Mary A. Dunham, for and during her natural life, and upon her death to pay over said principal sum to her lawful issue, share and share alike.”

By a subsequent provision contained in the residuary clause the testatrix directs that “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 estate would be divided and distributed.”

Mary A. Dunham, the beneficiary and niece of the testatrix, died on the 30th of July, 1887, after the commencement of this action. She left but one child, a son, David H. Dunham, who is still living and who, as we have seen, has been awarded by the courts below one-half of the fund directed to be invested for the benefit of his mother during her life. Another son, John B. Dun-ham, died nine years after the testatrix, on the 26th of July, 1886, leaving three children, Maude A. Dunham, Alden B. Dunham and Edgar A Dunham, Jr.,-to whom the decision appealed from awarded the other half of the fund. A third son of the beneficiary, Edgar A. Dunham, died March 31, 1871, several years before the will in question was made, and his only child, Annie P. Dunham, is the appellant in this case. Another bequest in this will to a nephew, framed in the same or substantially the same words as the one now under consideration, came before this court for construction, Palmer v. Horn, 84 N. Y., 516, and it was held that the words “lawful issue” meant the children of the beneficiary. Adopting the same construction as applicable to the clause of the will now in question, it must follow that when the testatrix died, in 1877, the beneficial interest in the fund which is the subject of the present controversy passed under the will to her niece, Mary A. Dunham, for life, with a remainder in her two children, David H. and John B. Dunham, who were her only “ lawful issue ” within the meaning of the will.

It is not essential to the determination of the questions involved in this appeal for us to decide whether the remainder became vested upon the death of the testatrix or the title remained in the trustees till the death of the life beneficiary. The rights of the parties making claim to the sum directed to be invested under the clause of the will above quoted do not depend, as it seems to us, in any degree upon a solution of that question. As Edgar A. Dunham, through whom the appellant, his daughter, claims, died years before the will was made, none of its benefits, we think, were intended to apply to him or his children. He was not a beneficiary or person entitled to share in the investment directed by the will to be made, within the meaning of the residuary clause above referred to, and consequently his next of kin were not entitled to share in the remainder. The. gift of the remainder was to a class followed by a substitutionary gift of the share of any one in the class who should die to the next of kin of such deceased person. Mo one can take under this substitutionary clause who cannot show that his parent might have been oneof the original class. Christopherson v. Naylor, 1 Mer., 320 ; West v. Orr, L. R., 8 Ch. Div., 60; Widgen v. Mello, L. R., 23 Ch. Div., 737; Jarman on Wills, Am. Ed., vol. 3, p. 628.

Bequests similar to the one now under consideration have been the subject of much controversy in regard to the right of the issue of predeceased children to take when the words used in the will were left open to construction. But, as was said in Matter of Crawford et al., 113 N. Y., 366 ; 22 N. Y. State Rep., 942, we are relieved in this case from the necessity of a critical examination of the cases on the general subject for the reason that the language of the will is so plain as to remove any doubt about the meaning of the testatrix. She evidently intended that the fund invested should, upon the death of her niece, pass to ttm children of that niece who were living when the will was made, and the next of kin of any of them who subsequently died. As the courts below have held in accordance with this view, the judgment should be affirmed, with costs to all the parties to this appeal to be paid out of the fund.

All concur, except Peckham, J., not voting.  