
    In the Matter of the Judicial Settlement of the Accounts of Norman M. Allen, as Executor of the Will of Norman Howard, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 17, 1894.)
    
    Wills—Construction.
    A bequest to the sisters of the testator and to the children of a deceased brother, was held not to include the children of a deceased sister.
    Appeal from portions of a decree relating to the distribution of the residuary estate.
    
      J. E. Bixby, for app’lt; W". H. Henderson, for resp’ts.
   Dwight, P. J.

Two provisions of the decree are specified in the notice of appeal, only one of which has any effect upon the distribution of the residuary estate, so far as the sole appellant is concerned, and it does not appear that she has any interest in the question which arises on the other of the two provisions specified ; whereas, the residuary legatee, whose interest is directly affected by the last-mentioned provision, does not appeal from it, but appears generally as a respondent on this appeal. We shall therefore confine our attention to that portion in which alone, so far as appears, the appellant has any interest on which to base an appeal. That is the provision by which a share of the residuary estate is awarded to the respondent Henry Milk. The facts bearing upon this branch of the case are as follows: Norman Howard, the testator, died in 1866, at the age of twenty-nine years, leaving a widow, but no children, a father, mother and three sisters. There were also living at the time of his death, and at the time of the execution of his will, a son of a deceased sister (the respondent Henry Milk) and three children of a deceased brother. By the second section of his will he gave the use of his farm, or, in case the farm should be sold under a power conferred upon his executors, the use of the avails, to his widow, during her life, or one-half of such use in case she should marry again. He then made several pecuniary bequests, and followed them by a residuary clause, as follpws: Seventh. At the decease of my said wife, all the restand residue and remainder of my said estate, after paying the bequests before made, shall descend to my father, Harry Howard, if he shall then be living; and if he shall not be living at the time of the decease of my said wife, then the same shall descend to my mother, Delilah Howard, if she shall then be living; and, if she shall not then be living, then the same shall descend to my sisters and their heirs and. assigns, and to the children of my deceased brother and their heirs and assigns. Th children of any of my sisters or of my brother are only to r the same share as my brother or sisters would receive if the living at the decease of my said wife.”

The father and mother of the testator both died \ widow, and she died in 1890, leaving, surviving her, the relatives of the testator, as at the time of the .e xecution c. will, viz., three sisters, the son of the deceased sifter, and the dren of the deceased brother. The learned surrogate held decided that the residuar^state should be divided into five parts, to be distribute 1 ono part each of the three si; ar?d one ptf.rt_to the son of 'Njjjped sister, Henry Milk, one part tc ¿'iyidod between tTtliree children of the deceased brother. Tv t, ricitdr ch'd"efeot:'e'e*^n wfis-respect was erroneous, for the reason that the case of the sister already deceased at the date of the will was not included within the terms or the intention of the testator, as expressed in the seventh or residuary section above quoted. The language is, “to my sisters and their heirs and assigns, and to the children of any deceased brother and their heirs and assigns.” It is evident that the word “sisters,” as here used, did not include th^jiscer then deceased, because the gift was to them, the words “aRt their heirs and assigns” being words of inheritance merely. He did not give a share of his property to his deceased brother and his heirs and assigns, which he might as well have done as to include his deceased sister among those who were the objects of his bounty. The gift is to^ his sisters and to the children of his deceased brother, all persons in being at the time his will was made; and by the subsequent clause of the same section, as already quoted, he made provision for the case which would arise if any of his sisters should die after the execution of the will, and before the death of his widow, to the effect, viz., that their children, in such case, should take per stirpes, and not per capita. Of course the one thing to be ascertained, if possible, in the construction of the clauses of this, as of any other, will, is the intention of the testator, and this, first of all, if possible, from the plain import of the terms employed. In this case it seems scarcely necessary to go beyond that first canon of construction. Here the testator gives a share of his residuary estate to each of his sisters (of course, his living sisters; he cannot give to any others), and to their heirs and- assigns. These are the only sisters mentioned, and there seems to be no language employed which can include the deceased sister or her son. The deceased brother is mentioned, as such; and the gift is not to him, and his heirs and assigns, but to his children and their heirs and assigns. Had the son of ¿he deceased sister been included in the purpose of the testator, he might as easily have been described as such. The son of the deceased sister not being within the plain import of the terms of the will, he cannot be brought within its provisions by virtue of any presumption arising from his relationship to the testator. All the authorities referred to by the learned surrogate and by counsel in support of a presumed disinclination to disinherit the heir relate to the case of children or ther direct descendants, and none of them to collateral relatives, re the cases of In re Brown, 93 N. Y. 299; Low v. Har72 N. Y. 408; Scott v. Guernsey, 48 N. Y. 106; and In re 11 N. Y. 480; 19 St. Rep. 67. Nor is there anything in iden'cS aliunde the will itself which aids the contention of csnondent. There is but little of such evidence, but it ars*that hit.' deceased sister, the mother of Henry Milk, died than twenty years before the will was made, and when teswas a child of not more than eight years, and that her son, y Milk, was a man of nearly, j^ot quite, the age of the tor, and the father of <* age is not stated, in whose jr the testator made a 'Wl^‘ir‘dry bequest. ^Tljrase circumstances may or may not accou|f . for the discriniia^tion between Henry Milk and -the children óitíe' deceased Yn-híner. It is sufficient to say that they are not inconsistent with the discrimination which is actually made by the terms of the will. The proposition in the argument of counsel that the children of the deceased sister as well as of the deceased brother take as primary legatees, and not by substitution or representation, is entirely untenable. It would not have been true of the children of either of the three, living sisters, had either of them before the death of the widow. Those living sisters were,'by"the plain terms of the will, the primary legatees of three shares of the estate, and their children, had any oí/ them died, could have taken by no other means than by substitution or representation, and that per stripes, as indicated by the l ast clause of § 7 of the will; and, in regard to the son of the deceased sister, we have stated our reasons for the conclusion that ke is neither by original mention, nor by substitution or represen tation, embraced within the provisions of the will. These views lead to a reversal of that part of the decree which awards a share of the residuary estate to the respondent Henry Milk, and its affirmance in all other respects. This will result in a modification of the decree in such a manner as to give to each of the livi’hg sisters one-fourth of the estate, and to each of the children of the deceased brother one-twelfth.

All concur.

So ordered, with costs to the appellant, payable out of the fund.  