
    Emeline P. Hayward, App’lt, v. Charles S. Baker et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Will—Issue of predeceased children—Primary legatees—Con-
    struction.
    A testator in the residuary clause of his will directed his executors to-divide his estate into equal shares, specifying the number but not the' amount. Then follows gifts of shares to the children of the testator’s-brothers and sisters, and then continues, “but in case any one or more of the children of my deceased brothers and sisters mentioned in this clause of my will shall die, or have died before me, leaving lawful issue surviving at the time of my death, then, and in that case, such issue of my deceased nephew or niece shall receive the share which his or her ancestor would have received under this clause of my will, had he or she been living at the time of my death, excepting in the case of the issue of Lemuel Crawford, deceased, to whom this clause does not apply, the children of the said Lemuel Crawford, deceased, having been left a legacy in a former clause of this will.” The testator’s ten brothers and sisters died before; ■ the date of the will, seven of whom left children surviving them at that time, and .several nephews and nieces of the testator, brothers and sisters of surviving nephews and nieces died, leaving issue before the will was made. The living nephews and nieces claim that they only are entitled to the residue given by the will, to the exclusion of the issue of nephews and nieces who died before the date of the will. Held, that the issue of predeceased children will take as primary legatees.
    2. Same—What issue take—Construction.
    
      Held, that the words “mentioned in this clause of my will,” qualifies “brothers and sisters,” and so construed, the issue who are to take are the issue of all the deceased children of testator’s brothers and sisters without ■ reference to the time of their death.
    3. Same.
    
      Held, that this intention is emphasized by the words “ shall die or have died,” pointing both to death in the future and in the past.
    4. Same.
    
      Held, that a conclusive reason for the construction that the issue of predeceased children were intended to take is in the clause, which excepts from the provisions of the will “the issue of Lemuel Crawford, deceased, to whom this clause shall not apply,” said C. having been left a legacy in a former clause.
    5. Same—What evidence of testator’s intention.
    
      Held, that the exclusion nominatim of the issue of a child of testator’s sister Mary, who died before the will was made, and who was one of the sisters mentioned, to whose children shares were given, is irrefragible evidence that the testator intended to comprehend all the issue of nephews and nieces who had died at any time before the making of the will, unless of a class specially excluded.
    Appeal from judgment, supreme court, general term, second department, affirming a judgment entered on a decree of the surrogate of Westchester county. -
    
      J. K. Hayward, for app’lt; Joseph S. Wood, for resp’ts.
    
      
       Affirming 10 N. Y. State Rep., 423.
    
   Andrews, J.

—The decision which may be reached in this case, turns on the point whether under the will the issue of nephews and nieces of the testator, who died during his lifetime and before the making of the will, take under the residuary clause, the share which their parents would have taken if they had survived the testator. His ten brothers and sisters had died before the date of the will, seven of whom left children surviving them at that time, but several nephews and nieces of the testator, brothers and sisters of surviving nephews and nieces, had died, leaving issue, before the will was made. The living nephews and nieces claim that they only are entitled to the - residue given by the will, to the exclusion of the issue of nephews and nieces who died before the date of the will. If this was the intention of the testator, or if the language of the residuary clause requires the court to say that this was his intention, that intention must be imputed, whatever the court may think was his actual intention outside of the words used. The testator in the residuary clause directs his executors to divide his estate into equal shares, specifying the number, but not their amount. He gives five shares to individuals specifically named; two to the wife of a grand-nephew, one to this grand-nephew’s daughter, and one to each of two children of a deceased niece. Then follows a gift of one share to each of the children “ living at his death,” of his deceased brother Nathaniel, and mutatis mutandis, one share to each of the children of five other deceased brothers and sisters mentioned. Three daughters of a deceased brother, living when the will was made, and then being over sixty years of age and without issue, were not included in the gift of the residue. They were the children of the testator’s brother Frederick, who was not mentioned in the residuary clause. They were given a legacy of $700 each in a prior clause of the will, with succession inter sese, in case of the death of any one before the testator’s death.

The particular language in the residuary clause, on which the controversy turns, immediately succeeds the gifts of the shares to the children of the testator’s brothers and'sisters, and is as follows, “ But in case one or more of the children of my deceased brothers and sisters mentioned in this clause of my will, shall die, or have died before me, leaving lawful issue surviving at the time of my death, then and in that case, such' issue of my deceased nephew or niece shall receive the share which his or her ancestor would, have received under this clause of my will, had he or she been living at the time of my death, excepting in the case of the issue of Lemuel Crawford, deceased, to whom this clause shall not apply. The children of the said Lemuel Crawford, deceased, having been left a legacy in a former clause of this will.”

The main argument in support of the contention that the issue of nephews and nieces of the testator, who died before the making of the will, are not comprehended in this clause, is that the clause is strictly substitutionary, and that no one can take thereunder unless he is the representative of a nephew or niece living when the will was made, but who had died prior to the death of the testator. This argument treats the nephews and nieces living at the date of the will as the primary legatees, and the clause quoted as intended to provide simply for the devolution of their shares upon their issue, in case of their death intermediate the date of the will and the death of the testator. There are a large number of cases to be found in the books, and especially in the English reports, upon the construction of wills, where a gift is made to a class of objects to be ascertained at the testator’s death, or at some other future time, followed by a provision that in case of the death of some of the objects of the class before the death of the testator, the issue of child or children, or of nephews or nieces, or of the class, whatever it is, shall take. The question has frequently arisen whether the issue of deceased members of the class-who died prior to the making of the will were entitled, to take the share which the parent would have taken if living at the date of the will, but dying before the death of the testator.. It is manifest that the testator could include or exclude the issue of predeceased members of the class dying before the date of the will, and whether he did or did not include them, is a question of construction of the words. The cases are divided into two general classes. In one-'' class are the cases where the alternative clause is treated as strictly substitutionary, and in these it is held that only such issue can take as can show that they represent a person of the class who could by possibility have taken under the conditions existing when the will was made, but whose death after the making of the will prevented the primary gift from taking effect. In cases of strict substitution, it is evident that an original member of the class,, predeceased before the date of the will, could never have-taken, and there could be no share of the parent to which the issue could be substituted.

In these cases it is held that such issue are excluded, and that only issue of members of the class dying intermediate the date of the will and the death of the testator, can take the share of such deceased parent. The case of Christopherson v. Naylor (1 Mer., 319) is a representative case of this class.

The other class embraces cases in which the words follówing a gift to a class are introduced in form or in effect by way of proviso, and are construed as adding to the class who are to participate, defined in the prior clause, another class, viz., the issue of deceased persons of such class, at whatever time they may have died, whether before or after the date of the will, such issue constituting another and distinct class, by way of original and substantive limitation. In cases of this kind it is held that the issue take as primary ■ legatees, and not as representatives, by way of substitution to interests given in the prior clause. For examples of this class, we refer to a few of the cases. Loring v. Thomas, 1 Dre. & Sma., 497; In re. Chapman's Will, 32 Beav., 382; In re. Potter's Trust, L. R. 8 Eq., 52.

The distinction between the two classes of cases is stated with admirable clearness by Jabíes, V. 0., in the case of In re. Hotchkiss's Trusts, L. R., 8 Eq., 643.

It will be found, however, that the cases are not all reconcilable. The diversity of opinion arises in many cases, I apprehend, from the mental attitude in which the particular judge approaches the consideration of such a question, that is in such a case as this, whether he leans to a strict and literal construction of the language of a will or to a liberal and broad construction in aid of the probable intention of the testator. The tendency, however, is towards the inclusion of issue of predeceased children. The cases are collected by Jarman (2 Jar., 771, et seq.), and he states that even where there is_ no original and independent gift to the issue, but the claim is founded on a clause apparently of mere substitution, the court “anxiously.lays hold of slight expressions as a ground for avoiding a construction which, in all probability, defeats the actual intention, by excluding the issue of a deceased child from participa tian in a family provision.” The liberal construction was adopted by this court in Teed v. Morton (60 N. Y., 502).

But 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 in the case before us points unmistakably to the inclusion of the issue of predeceased children, as primary legatees. The clause, “ but in case any one or more of the children of my deceased brothers and sisters mentioned in this clause of my will, shall die, or have died before me, leaving lawful issue/’ etc., which immediately follows the gift to classes, is, we think, alone conclusive of the testator’s intention to provide for the issue of predeceased children. The words “mentioned in this clause of my will,” to the ordinary apprehension qualifies “brothers and sisters,” the immediate antecedent, and so construed, the issue who are to take are the issue of all the deceased children of his brothers and sisters mentioned, without reference to the time of their death. The intention to include all such issue irrespective of the time of the death of the parent is emphasized by the words, “ shall die, or have died,” pointing both to death in the future and in the past. Six of the testator’s brothers and sisters are mentioned in the prior clauses. One brother is not mentioned, and the issue of his children are not included. The reason may have been, that the living children of that brother had no children, and had outlived expectation of issue, and the testator had provided for them in another clause. But a conclusive reason for the construction that ■the issue of predeceased children were intended to take, is found in the concluding clause of the residuary section of the will, which excepts from its provisions “ the issue of Lemuel Crawford, deceased, to whom this clause shall not apply,” adding, as a reason, “ the children of said Lemuel Crawford having been left a legacy in a former clause of this will.” Lemuel Crawford was a deceased nephew of the testator, and the son of Mary _ Crawford, a deceased sister of the testator, and both had died before the making of the will. The exclusion, nomination, of one of the issue of a child of the testator’s sister Mary, who had died before the will was made, and who was one of the sisters mentioned to whose children shares were given, is irrefragible evidence that the testator intended to comprehend in the residuary gift all the issue of nephews and nieces who had died at any time before the making of the will, except in case of individuals of the class specially excluded.

The learned counsel for the appellant has argued with great learning and ability to show that by the strict rules of grammar the words ‘1 mentioned in this clause of my will” qualify the word “children” and not the words “brothers and sisters” immediately preceding. But this, we think, would not be the reading of common men, and grammatical tests always give way, where by applying them, the overruling intention discernible on a consideration of all the words of the will, would be defeated. It may be conceded that the words “but in case” naturally point to an alternative or substantial clause, but this is not decisive. This form of expression, in substance, will be found in many cases falling under the second class above referred to.

It is also urged in support of the appellant’s construction that the opposite one results in a double provision for the issue of nephews and nieces who had died before the will was made. It is true that, except in one instance, specified pecuniary legacies are given to the issue of such predeceased nephews and nieces. The amounts of such legacies are not uniform, and there is no inference derivable from the face of the will that the testator intended to give all his property in equal shares to the objects of his bounty. The legacies given to the issue of predeceased nephews and nieces are not identical in amount with what they will take under the residuary clause, so that the latter cannot be said to be the same legacy given by inadvertence a second time. But still more, he excluded the issue of Lemuel Crawford, deceased, for the reason that he made a prior provision for him, but did not exclude other issue who were similarly situated, except that the legacies given to them were, in most instances, smaller in amount.

We cannot entertain a doubt that the proper construction has been given to the will by the courts below, and the judgment appealed from should, therefore, be affirmed.

All concur.  