
    In the Matter of the Judicial Settlement of the Accounts of David Paton, as Trustee, Under the Will of John Kurst, Deceased.
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    1. Will—Children—Meaning oe term in a will.
    Tie word “ children ” is a flexible expression, and that meaning should be preferred when tie reason of tie language in tie will sustains it which permits tie children of a deceased child to inherit.
    2. Same—Context may be resorted to, to explain meaning oe.
    In determining in a given case tie meaning to be given to tie expression in a will of “ children,” we may resort to the context to see if the testator has by his use of language or by other provisions of the will, made it a flexible term, or whether its primary meaning attaches strictly.
    3. Same—Construction of.
    By testator’s will it was provided, “Ninth. I order and direct that after the decease of my said wife, and my youngest child shall arrive al the age of twenty-one years, my executors hereinafter named “* * *” shall dispose of all such property as may then remain of my said estate “ * * * ” and out of the proceeds thereof after first deducting the necessary expenses, divide the same “* * *” equally among the children I may then have, or those who may he legally entitled thereto, etc.” In. the eleventh clause is contained the provision that “ if either one of said children or any person or persons who may succeed to the interest of them or either, shall in any way or manner interfere with the due and proper-execution of any one of the provisions of this my last will “* * *” by commencing legal proceedings in relation thereto, such child or children person or persons shall forfeit her, his or their, share in my said estate, etc.” Held, that these provisions indicate the understanding of the testator that his sons and daughters might not he living at’the time of distribution, and that an intention is deducible that the issue of the deceased son or daughter should share in the proceeds of the estate upon the sale ordered, by him after the decease of his wife.
    4. Same—Children op deceased child share.
    When the testator directs a division “equally cumong the children he may-then hare, or those who may he legally entitled thereto," he must be regarded as contemplating the possibility of there being other children to share than his immediate offspring. The words or lang: age in said sentence implies, a substitution in case of the pre-decease of sons or daughters of their surviving children.
    5. Same—Widow op deceased son does not share.
    The widow of the deceased son of testator was not entitled to share in the proceeds of the sale.
    6. Same—Duty op the court.
    It is the province of the court in the construction of the testamentary disposition of property to effectuate the intent of the testator by giving that direction to the funds which, with all the light that may be cast upon the matter by the proof, and from a fair reading and reasonable interpretation of the writing in all its parts, seems just. If the will in question is equally susceptible of one or another interpretation, the court should give it that which is most equitable and consonant with the dictates of' justice.
    Appeal from a judgment of the supreme court, general term, first department, modifying a decree of the surrogate of the county of New York directing the distribution of the-funds of the estate, and as modified, affirming the same.
    
      Jesse Furlong, for Kurst, app’lt; Thomas Fenton Taylor, for Patch, trustee, app’lt and res’pt.
   Gray, J.

The question presented by these appeals is as to the construction to he given to the language in the ninth clause of the will of John Kurst. The will was made in 1858 and the testator died in 1863, Ilis wife survived him and died later in the same year. At his death there were living two sons; a daughter, Julia, mentioned in the will, having died before the testator at the age of nine years. One of the sons, Charles, was married when his father made this will, and he died before his mother, leaving two sons, parties and appellants in this proceeding. The claimants to the fund in the trustee’s hands were John B. Kurst, who survived both of his parents, and the two grandsons of testator, sons of his deceased son, Charles.

John B. Kurst contended that he alone was entitled to the whole of the fund, and the surrogate sustained him in that contention. The grandsons of testator claimed the right to share in the fund, either per capita or per stirpes, and the general term, reversing the surrogate, decided that they were entitled between them to one-half of the fund.

The ninth clause of the will reads as follows:

Ninth. I oi’der and direct that after the decease of my said wife, and my youngest child shall arrive at the age of twenty-one years, my executor hereinafter named, or such person or persons as may then legally represent my said estate and the interests of my said children, shall dispose of all such property as may then remain of my said estate, within eighteen months thei’eafter, either at public auction or at piivate sale, as such executor, person or persons may, in his or their judgment, deem most advantageous and beneficial to my children, and out of the proceeds thereof, after first deducting all necessary expenses, divide the same, together with all other property belonging to my estate, equally among the children I may then have, or those who may he legally entitled thereto, excepting, however, from the above disposition of my said estate all my silver spoons, one piano forte, which I now have, and the portraits or myself, my wife and my mother, which spoons, piano forte and portraits I hereby give, devise and bequeath to our daughter, Julia Kurst, her heirs and assigns, forever.”

The difficulty arises from the language of the wifi, in this clause, which speaks of a division of the proceeds of the sale of the estate “equally among the children I may then have, or those who may be legally entitled thereto.”

The will is evidently not drawn by a hand skilled in the requirements of such an important instrument; but enough appears from its reading to satisfy us that what the testator meant to accomplish was such a distribution of his property as that not merely his immediate issue should be benefited, but also the issue of any of his sons and daughters who may have died before his widow. Certainly no words or provisions can be found in the instrument which preclude the issue of a son or daughter from sharing in the testator’s estate ; if we can give to the word “children,” as used or as understood in the use of the word “those” in this clause, that more comprehensive sense which will include issue, however remote. As Judge Story said in the case of Parkman v. Bowdoin (1 Sumner, 368), where he reviews .a number of authorities from an early date: “Although in its primary sense the word children ’ is a descriptio personarum who are to take, there is not the slightest difficulty in giving it the other sense when the structure of the devise requires it.”

By reference to the fourth clause of the will we find the provision that, in the event of the marriage of testator’s wife, his estate is to “descend to the children we now have or may hereafter have, according to the Laws of the State of New York, subject,” etc.

In the eleventh clause is contained a provision “that if either one of my said children, or any person or persons who may succeed to the interest of them, or either, shall in any way or manner interfere with the due and proper execution of any one of the provisions of this my last will, * * * by commencing legal proceedings in relation thereto, such child or children, person or persons, shall forfeit her, his or their share in my said estate, and such share or shares shall be added to the shares of such child, children or persons as shall not interfere with the same, and to be equally divided among the persons last named, share and share alike.”

We think that these provisions indicate the understanding of the testator that his sons and daughters might not be living at the time of distribution; and that an intention is deducible that the issue of a deceased son or daughter should share in the proceeds of the estate upon the sale ordered by him after the decease of his wife.

It is the province of the court in the construction of a testamentary disposition of property, to effectuate the intention of the testator by giving that direction to the fund which, with all the light that may be cast upon the matter by. the proofs and from a fair reading and a reasonable interpretation of the writing, in all its parts, seems just. We may not make a will for him nor thwart his manifest purpose, but if the will before us is equally susceptible of one or another interpretation, we should, on every principle of right and within the spirit of all the authorities, give it that which is most equitable and consonant with the dictates of justice.

In the Matter of the Estate of Brown (93 N. Y., 295), where the question was. whether the testamentary provision cut off the issue of a son of. a deceased daughter, where the testator had given to each of his daughters a life estate in his property “with remainder over to their respective children,” Rapallo, J., said if the language of the clause “is capable of any construction which would permit the issue of the deceased son to participate in the remainder limited upon his mother’s life estate, that construction should, on well settled principles, be adopted in preference to one which should, exclude them.”

Chancellor Kent says in his. Commentaries (4th vol., ,p.. 419, n.): “Children, as well as issue, may stand in a collective sense for grand-children where the justice or reason of the case requires it.” The word “children” is a flexible expression, and we think that meaning should be preferred, when the reason of the thing sustains it, which permits the children of a deceased child to inherit. 1 Jarman on Wills, 404; Earl of Tyrone v. Marquis of Waterford, 1 DeGex, F. & J., 613; Hodges v. Middleton, 2 Doug., 431; Doe v. Webber, 1 Barn. & Ald., 713; Prowitt v. Rodman, 37 N. Y., 42; Scott v. Guernsey, 48 Id., 106; Low v. Harmony, 72 Id., 408.

In determining, in a given case, the meaning to be given to the expression in a will of “ children,” we may resort to the context to see if the testator has by his use of language, or by other provisions of the will, made it a flexible term, or whether its primary meaning attaches strictly. The other clauses which we have quoted from would be sufficient warrant to give to the clause under consideration the wider and juster sense which will include the children of a deceased son or daughter as participants in the fund arising from the sale of the estate.

It seems to us that the word “ or,” in the sentence in question here, implies a substitution in case of the pre-decease of sons or daughter, of their surviving children. When the testator directs a division “ equally among the children he may then have, or those who may be legally entitled thereto,” he must be regarded as contemplating the possibility of their being other children entitled to share than his immediate off-spring. The word “those” must refer to children, in order to have a meaning, and refers to the children or issue of his sons and daughters. By the force of the provision, the issue of a deceased child of testator are substituted for the child, and that share in the estate would be distributed among such issue per stirpes.

Thus, when we consider the testator’s intention as to the future distributees of his estate with the aid of the context, and with the interpretation furnished by him by the provisions in other clauses, there seems to exist no doubt that the children of his deceased. son are comprehended in his scheme for the division.

As to the claim of the widow of the deceased son of testator to share in the proceeds, we agree with the general term that she had none. These grandchildren derived their right to the fund under testator’s will, and not through their deceased father.

On the proceeding hefore the surrogate the claim of John B. Hurst, as administrator, with the will annexed to com. missions was rejected. The ground of the rejection was that the accounting was by Patón as the trustee appointed to carry the will into effect upon the estate of the testae tor’s wife, and related to the proceeds of the sale made by him of the real estate, and the question of the right of the administrator to commissions, was reserved until his accounting as such administrator. We are unable to find any basis for his claim for commissions in this record, and there is nothing for us to pass upon in that respect. That must be the subject of any further proceeding below.

The judgment of the general term should be affirmed, and the matter remitted to the surrogate’s court, to be proceeded with in conformity therewith. Under the circumstances, no costs of the appeal are allowed.

All concur, 
      
       Affirming 5 N. Y. State Rep., 43.
     