
    In the Matter of the Judicial Settlement of John S. Woodward et al. Alice Gray et al., App’lts, v. John S. Woodward et al., Ex’rs, Resp’ts.
    
      (Court of Appeals,
    
    
      Filed December 17, 1889.)
    
    1. Will—Construction on.
    After giving legacies to a number of nephews and nieces, and also to A., T. and F., the “three children of my deceased niece,” testator in a subsequent clause gave the rest and residue to “my nephews and nieces hereinbefore named, excepting certain ones by name, “ in such proportionate shares as the legacies hereinbefore given and bequeathed to them respectively shall bear to each other.” H<ld, that the language was clear and unambiguous and that the term “nephews and nieces” did not include the children of the deceased niece.
    2. Same.
    Where a will is clear, intelligible and unambiguous the rule that the letter is not to be adhered to if a different signification can be gathered from the context of the instrument does not apply.
    Appeal from judgment of supreme court, general term, first-department, affirming decree of surrogate’s court deciding that appellants are not entitled to participate in residuary estate of testator.
    
      Charles H. Johnson, for app’lts; Charles H. Knox, for resp’ts.
   Danforth, J.

Noah S. Hunt, who died in the city of New York, November 12, 1886, by his will made in 1879, after providing for the necessities of some of his brothers and sisters during their lives out of the income of specific sums, gave the principal of those sums to certain persons described by him as his nephews and nieces, naming the brother or sister from whom they descended, and in the tenth clause said: “ I give and bequeath unto Alice, Thomas and Frederick, the three children of my deceased niece, Mary Jane Gray, late wife of the Reverend Thomas M. Gray, each the sum of two thousand dollars. Provided, always, nevertheless, and it is my will, that if my sister Jane Hoe-shall survive me, then, and in such case, at least one-half part, and more if she shall need or require it, of the interest or income’ of the legacies hereinbefore given to her said grandchildren, Alice, Thomas and Frederick Gray, shall be paid by my executors, their survivors or survivor, to my said sister Jane or be applied to her use during the residue of the term of her natural life, and that the residue, if any, of such interest or- income of such legacies respectively be paid to the said children of my deceased niece, Mary Jane-Gray, respectively, to whom the principal thereof is hereinbefore given. * * * And in the event of the death of any of them, the said Alice, Thomas and Frederick Gray, before my decease, leaving no issue, her or him or them surviving, who shall be living at the time of my death, then, and in any and every such case, I do give and bequeath the legacy aforesaid of such decedent unto the survivors or survivor of them, the said Alice, Thomas and Frederick, if more than one, in equal shares. But in case any such decedent shall leave surviving him or her any issue who shall be living at the time of my death, such issue of the deceased shall be entitled to take the legacy of the deceased parent of such issue, if more than one, in equal shares.”

The eleventh clause is not material here, and the twelfth clause is in these words: “All the rest, residue and remainder of my estates and property, of every name, nature and description, including the principal sums to be invested for the payment of interest or income thereof, unto my nephews, James H. Cory and Samuel H. Clark, and my niece, Sarah Jane Bradford, as they shall severally, by the death of either of them, fall into my said residuary estate, I do give and devise and bequeath unto my nephews and nieces hereinbefore named, except the said James H. Corey, Samuel H. Clark, and Sarah Jane Bradford, in such proportionate shares as the legacies hereinbefore given and bequeathed to them respectively shall bear to each other.”

He appointed executors, who entered upon the duties of their office and in due time applied to the surrogate’s court of the county of New York for a judicial settlement of their account. It was found that, after complying with the earlier provisions of the will, a surplus remained for distribution under the twelfth or residuary clause, and as to that the surrogate determined that “ Frederick F. Gray, Thomas M. Gray and Alice Gray, the children of testator’s deceased niece, Mary Jane Gray, are not nephews and niece of the testator as expressed in the twelfth clause of his will, and are not entitled to participate in the distribution of his residuary estate ” thereunder. From that determination the three persons named appealed to the supreme court, where the judgment or determination was affirmed. We are of opinion, both upon principle and authority, that in so doing no error was committed.

There is no doubt that the intention of the testator, as manifested by the entire will, should govern. This is the appellants’ contention, and it is a sound canon of construction. In a will, as in a statute, the spirit is to prevail, and the letter is not to be adhered to if a different signification can be gathered from the whole context of the instrument; but where the language of the testator is clear, intelligible and unambiguous, there is no room for its application. That is the case here. From a variety of beneficiaries the testator selects a certain class described by him as “ nephews and nieces,” and not all of that class, but only those “before named,” and giving to those words the natural and ordinary signification, they include only the children mentioned in the preceding clauses of the will, and described as nephews and nieces. The record shows that he left a brother, Isaac J. Hunt, who had several children, all of whom were, of course, “nephews and nieces” of the testator, yet one only of these seems named in the will, and it might, I think, with equal plausibility be said that those not named should be included, as that persons, although relatives, but not answering the description adopted by the testator, be held to be entitled. As to the appellants, they are called by the testator, not “nephews ” or “nieces,” but “children” of “his deceased niece,” and in the same clause are twice referred to in that manner. A discrimination in language and a choice of words of description which indicate no intention to include the persons named with nephews and nieces, but the contrary. It is obvious the testator bad in his mind the different degrees of relationship of his various beneficiarcies, and the selection of different words to describe them cannot be attributed to mistake or inadvertence. To hold otherwise would not preserve his intent, but defeat it.

The authorities are also the same way. In Falkner v. Butler, Ambl., 514, the testator empowered his wife- to appoint his estate to be paid to his sisters and their children. The court held that “ the power was confined to nephews and nieces and could not be extended to great nephews and great nieces.”

In Shelley v. Bryer, Jac., 207; Condensed Eng. Ch. Rep., 97, the residuum of the estate of the testator was “ to be divided equally between his nephews and nieces who might be then living.” Some doubt was created by the codicil, but it was held that the terms nephews and nieces were not ambiguous and unless extended by some peculiarities, could not include great nephews or great nieces, and so upon the will alone there was no ambiguity, and notwithstanding the doubt raised by the codicil it was so decided in view of both instruments, To the same effect is Crook v. Whitley, 7 De G., M. & G., 490. In Cromer v. Pinckney, 3 Barb. Ch., 466, the general rule is repeated that the testator must be presumed to have used words in their ordinary, primary sense or meaning, and that the words “nephews and nieces,” in their primary sense, mean the immediate descendants of the brother or sister of the person named, and do not include grand nephews and grand nieces, or more remote descendants. The principle of construction applied by this court in Low v. Harmony, 72 N. Y., 408, leads to the same conclusion. The testator in that case had in one clause made provision for the appellant, describing her as the •daughter of his late daughter Sarah Ann, and in a later clause gave his residuary estate to his “wife and living children.” It was held that this language manifested an intention not to include the representatives of a deceased child. These cases are applicable here.

It follows that whether we take the plain language of the tenth and twelfth clauses, or search for the intention of the testator in the context of the will, the result is the same. From neither source can it be implied that the testator intended the children “of his deceased niece” to share in the bounty bestowed upon the nephews and nieces theretofore named by him.

The judgment of the court below should be affirmed, with costs.

All concur. 
      
       Affirming 25 N. Y. State Rep., 215.
     