
    36 N. Y. 267-Distinguished, 20 Hun 377, 381.
    Lavinia Guernsey, Appellant, v. William G. Guernsey and others, Appellant and Respondents.
    Where, by the terms of the will, the testator had devised his estate to his three children in fee, share and share alike, providing, however, that in case either '■= should die without issue, that such share should go to the surviving children equally. Held, that one of the children dying, leaving an heir, such heir took, absolutely, the estate of its parent.
    
      Held also, that such heir could not be deemed tobe included in the term “ survivor or survivors,” as used in the will. That on the death of one of the three without heirs; the remaining child living, took such share.
    36 N. Y. 267-Followed, 86 N. Y. 301.
    
      D. M. Powers and B. F. Rexford, for the appellant.
    
      I. S. Newton, for the respondents.
   Davies, Ch. J.

The appeal in this action from the judgment of the Supreme Court is taken by the plaintiff and the defendant, William G. Guernsey. The action was instituted for a partition of the real estate devised by the will of Peter G. Guernsey, deceased. The will was made in the year 1837, and the testator died in 1843. The testator left him surviving three children, viz.: Polly Thompson and Lavinia Guernsey and William G. Guernsey, the appellants, and William B. Guernsey the only child of' his deceased son Peter B. Guernsey, Jr. Polly Thompson, the daughter of the testator, died in 1847, leaving her surviving seven children, the respondents in this action. The testator was a lawyer and drew his own will, and the only question presented for adjudication, is the proper construction of two provisions of the will. They are as follows:

“ I give and bequeath to my children, Polly Thompson, William • G. Guernsey and Lavinia Guernsey, all my estate real and personal, to be equally divided between them, share and share alike, subject to the provisions above made for my wife, without taking into account, the property I have heretofore conveyed to the above William B. Guernsey.” In the last clause of the will is this provision :• “ The above devises to my children being to them, their heirs and assigns, and if either die without issue, then to the survivor or survivors m equal shares.

Previous to our Eevised Statutes this primary devise would only have given to the devisees a life estate in the real estate of the testator, but it is now the law of this State that the term “ heirs ” or other words of inheritance shall not be requisite to create ór convey an estate in fee. (1 R. S., 748, § 1.)

It is therefore undeniable, that each devisee.took a fee simple absolute, in an undivided third part of the testator’s real estate. If nothing more had been said in the will, this would have been the final disposition of the estate, and in the event of either of the devisees dying intestate, his or her share would have descended to his or her right heir. It is apparent from another clause of the will that the testator was of opinion that he had made ample provision for his grandson William B. Guernsey, the only child and heir of his oldest son Peter B. Guernsey deceased, and that he did not intend that he should participate further in his estate. After having appointed his executor, it is manifest that the thought occurred to the testator, that in the event of '• either of his children dying without issue, this grandson, would as heir come in for a portion of the estate. His son and daughter Lavinia Were then unmarried, and the contingency of their dying without issue was not improbable, nay it was so likely to happen that the testator deemed it pru dent to make provisions for that event. We are to assume that he was well acquainted with the provisions of the Eevised Statutes, which had then been in operation for over seven years, and that his previous devise in the will had given to the devisees named, each one undivided third part of his real estate, in fee, in other words to them “ their heirs and assigns.” This was the legal effect of the previous devise, and the testator in the declaration made by him that “ the above devises to my children being to them their heirs and assigns ” but declared the law as applicable to the same, or the legal result flowing therefrom. The language used is the equivalent to this the above devises.to my children being to them in fee ” therefore, etc.

It is for this reason, because I have given them an estate in fee or in other words, “ to them, their heirs and assigns,” that I deem it necessary to make provision for the event of either of them, that is, either of my children, dying without issue. . Therefore, he has declared in substance, that if either of his children should die without issue, then the above devise to that child so dying should go to the survivor or survivors in equal shares. And it is well to note the accuracy and appropriateness of the language used to convey this idea, and the exact number of words used to express the same, not one too many, and not one omitted, needful to the full expression of the mind of the testator. He commences by a declaration of the existing state of things, viz., that the above devises to his three children were to each an estate of inheritance or in fee, or “ to their heirs or assigns,” each the equivalent of the fee, and for this reason my further will, is, that in the event of either of my said three children dying without issue, then I devise the share so given to such child to the survivor or survivors in equal shares.

In the event which actually happened of one child-first dying leaving issue, it is not disputed that such issue took the share of such child so dying, absolutely, and that the right of survivorship attaches only to the other two undivided shares. If one of these survivors should die in the lifetime of the other, leaving issue, it is not denied that such issue would, in like manner, take absolutely such share. And if the third and last survivor should also die, leaving issue, that such issue would also take such remaining share.

If Mrs. Thompson had died without issue, it is conceded that her share would have devolved upon her brother and sister, the survivors, in equal shares. So if either of the others had died in the lifetime of Mrs. Thompson, without issue, the share of the one so dying would have passed to the survivors, in equal shares.

By the death of Mrs. Thompson, leaving issue, one share has passed absolutely to her children, and but two shares are now subject to the contingency of survivorship, and, upon the death of either of the two survivors, the share of the one so dying will vest absolutely in the survivor. This was manifestly the plain intent of the testator. It is so clear, that further argument or elucidation seems unnecessary. If we only keep in mind that the testator, at the conclusion of the will, before making a disposition of his estate, in the contingency contemplated by him, was proceeding to declare the actual state of things as then existing by the previous provisions of •his will, it does not seem that any difficulty is presented in construing this ¿louse of the will. I cannot find any warrant for saying that the grandchildren of the testator were to come in as survivors and take a portion of the share of one of "his own children who might die without issue. For, if, under this construction, the children of Mrs. Thompson could take, it would follow, if either of the other children of the testator had died leaving issue, such issue could have claimed as a'survivor. The language seems plain, that the devise to the survivor was dependent on the precedent event, if one of the three children of the testator married, dying without issue. It is the same as if the testator had said if either of. them (my children) die without issue, then the share of the one so dying shall go to the survivor, or if there be more than one then living, to the survivors in equal shares. Manifestly the persons here referred to as dying without issue are the children of the testator, and the survivorship indicated is that of his child or children. ISTo just construction will authorize the conclusion that the testator by the use of the words “heirs or assigns,” intended to include,. as those entitled to come in and participate in this right of ' survivorship, the heirs of either .of his three children or the assigns of either, for if heirs be designated, their assigns are also.

Such a conclusion, it is seen, would be absurd, and would work results never contemplated by the testator, and hostile to his manifest intention. But if these words, “heirs and assigns,” be used in their natural and obvious sense, as descriptive of the estate already given to his three children, all difficulty vanishes, and there is no embarrassment in giving entire effect to the whole will of the testator, and his undoubted intentions. It is a forced and unnatural construction to hold that the heirs of a deceased child, or the assigns of either of his children, were to take the share of either of his children who should die without issue in equal shares. There can be no reasonable doubt, I think, that the survivorship mentioned is confined to that of the three children named. Such seems to me to be the meaning of this will, and such construction would appear to harmonize with well established authority. In Jackson v. Blanshan (3 Johns., 292) the devise was to the testator’s six children, “ their heirs and assigns,” each one-sixth part of his estate, and the testator added, “ but if any one or more of my above named children should die before they arrive at full age, or without lawful issue, that then his, her or their part or share of my estate shall devolve upon and be equally divided among the rest of my surviving children, and to their heirs and assigns forever.” And the question was whether the sole surviving daughter of the testator took as sole survivor, or whether the issue of the brothers and sisters came in for a proportion. Spencer, J., said: “The grandchildren cannot be considered as the surviving children within the intention of the testator. The plain language of the limitation would be violated by giving it such a construction, and indeed it is not pressed.” In Jackson v. Staats (11 Johns., 337), the devise of the real estate was to the testator’s six sons by name, and the limitation was in these words: “ And if any one or more happens to die without heirs, then his or their parts or shares shall be equally divided among the rest of the children.”

It was contended on the part of the plaintiff that all the children of the testator being dead at the death of Joachim (one of his sons and devisees), and he dying without issue, the grandchildren took under the will of the first testator, and the lessor, as one, was entitled to the one-fourth of a third. That a provision for children extends to grandchildren, Spencer, J., after a review of all the authorities, concludes thus: “ The testator, in making the limitation over, never contemplated the . case which has occurred; and whe i he says, ‘ If any one or more happens to die without heirs, his or their parts or shares shall- be equally divided among the rest of the children,’ he undoubtedly by the rest of the children refers' to his own children, whom he had before mentioned in his will. He died not once thinking of his grandchildren, and it’would be doing violence to his intention to say he did. If this be so, then the last surviving child, whether he had issue or not, would retain not only his share in the first devise, but also the shares which had accrued to him.”

The doctrine of the case of Mowatt v. Carow (7 Paige, 328), would appear to settle, conclusively, the proper construction to be given to the will of this testator. There the vice-chancellor said, and his observations are approved by the chancellor, that “sometimes, it is true, grandchildren and issue, or descendants generally, are permitted to take, under an enlarged construction of the term ‘ children.’ When, for instance, the will would, otherwise, remain inoperative, and it is necessary to extend the meaning beyond the natural import of the word, in order to effectuate the object and apparent intention of the testator; or when the testator has cleai’ly shown, by other words, such as issue or descendants, used promiscuously with the term children, that he did not intend the latter to be understood merely in its natural sense, but in the more comprehensive sense of issue or descendants generally, then there is no necessity for extending the word, in order to give effect to this part of the will; nor is there a promiscuous or indiscriminate use of the •words children and issue. * * '* Indeed, it would seem as if the testator had purposely limited the gifts to children, and expressly excluded grandchildren from participating in the devise over of the shares intended for his son John and his daughter, Mrs. Oarow, by designating children, etc., ‘ the survivors and survivor of them,’ as the persons to take. Even without the latter words, and without something more than appears in this case, the general rule must be applied, that when there a/re children who property answer the description, grandchildren cannot he permitted to share along with them?

A case like the present, in its leading features, arose in South Carolina. (Lowry v. O’Bryan, 4 Rich. Eq., 262.) There was a devise to the testator’s four sons, “to them and their hems forever; if either of my sons should die without issue, his part shall be equally divided between the survivors.” Two of the sons died without issue, then one of the sons leaving issue, and then the surviving son died without issue. A claim was made by the issue of the third son dying, for the share of the last survivor dying, and it was held, that by the will, the issue of the third brother dying, took no interest in the estate, which was left by the survivor of the four brothers. And it was pertinently observed in Savage v. Burnham, (17 N. Y., 579), that the case of nephews and nieces stands upon a very different footing from that of a man’s own children. Nature and law both make the distinction and presumptions, and implications, which would be unavoidable in the one case, might be very unreli- . able, and for that reason inadmisible in the other. These remarks apply with equal force to the suggestion now made, that the testator intended to place his grandchildren in the same category with his own children. Upon a careful consideration of this will, we are satisfied that the proper construction to" be given to its provisions is, that the three devisees took a fee simple in the real estate devised, subject to be divested, upon either dying leaving no lawful issue. That upon Polly Thompson dying, leaving issue, her share vested absolutely in such issue, and that as-'to the two remaining shares, in the event of either of the two surviving children of the testator dying without issue, the share of the one- so dying would vest absolutely in the survivor, and, in that contingency, the survivor would have an absolute estate, in said two remaining shares. If either of the two survivors should die leaving issue, then such issue would take the share or portion of the one so dying leaving issue.

The judgment appealed from must be reversed, and the record remitted to the Supreme Court, to enter judgment in accordance with the principles of this opinion, and that the plaintiff recover her costs of this appeal against the defendants, except the defendant and appellant William G. Guernsey.

Judgment accordingly.

Grover, J.

The question in the present case depends upon the construction of the following clause in the will of Peter B. Guernsey: The above devise to my children being to them, their heirs and assigns, and if either die without issue, then to the survivor or survivors in equal shares. That question is whether the issue of one of the deceased children, has, by virtue of the foregoing clause of the-will, any claim to the share given to another child dying without issue, subsequent to the death of their ancestor, or whether the surviving child or children take the whole of such share to the exclusion of the issue. The devise to the children was made without words of inheritance by a previous clause of the will. There is no other part of the will that affords any light as to the intention of the testator in the disposition of the property. It is claimed by the respondent’s counsel that the clause relating to William B. Guernsey, a grandson of the testator, the only child of,his deceased son, does give such light. That clause assigns as a reason for not giving any thing by the will to the grandson, that he had already received from the testator an amount equal to that given to his own children by the will. From this the counsel for the respondent argues that the design of the testator was to exclude this grandchild from any participation in the property given'by the testator in the will; and that to effect this design the cíause in question must be construed as including this issue of a deceased child among the class entitled to succeed by survivorship. If the counsel is right in the premises his conclusion is correct. But why attribute any such design to the testator. The will shows that the testator made the grandchild, by what had before been given him, equal in the division of his property tp one of his own children. The issue of one of his children provided for by the will inheriting the share of' their ancestor if entitled to anything by survivorship would receive more than William B. Guernsey, and thus equality between all the children and their descendants would be destroyed. The more probable inference would be that if the testator had in his mind to include the issue of a deceased child in the chance of surviyorship he would also have included therein this grandchild and thus have preserved entire equality among all his descendants. But I do not think the clause .in'relation to the grandchild entitled to any weight in determining the,3 present question. There is no ground for supposing that the testator had in his mind, while considering that clause, anything more' than to show his reason for not giving anything to this grandchild by his will.

Numerous' cases have been cited by the counsel for the respondent; 1 have examined many of them, but do not find therefrom any aid in determining the present question. It must be determined by the intention of ■ the testator derived from the language used in the clause in question. It appears therefrom that the testator did not give the share of a child dying, leaving issue, to such issue. This ■ shows that he had no design to provide for the issue. In that event he left the share at the absolute disposal of the-child. The word issue is used in the clause' for the- purpose of showing when the child should not enjoy this right and the right of survivor-ship should attach. The natural import of the language used confines the right of survivorship to the children. This, in the absence of any intention shown by the testator to provide for the issue, but rather the contrary, should be followed. There is no question but that any portion required as survivor under the will is owned by the party in fee. The judgment should be made final by declaring that the issue of Polly Thompson have no right of survivorship in the shares of the remaining children, and that the last survivor of the children will become owner in fee to the share given by the will, as the event in which it is devised over can then never happen. This results from the devise to the children with a contingent devise over upon the happening of some future event. The estate -becomes absolute when the event becomes impossible.  