
    John W. Cochrane and Others, as Executors, etc., of Adam W. Spies, Deceased, Respondents, v. Sarah Ann Kip and Others, Respondents. Arthur C. Humbert, Individually and as Administrator, etc., of Florence A. Humbert, Deceased, Appellant.
    
      Remainders, after a trust for life, held, to be subject to be directed by a death without issue before that of the life beneficiary.
    
    A testator gave all his residuary estate to his executors and trustees during the life of his daughter Sarah Ann Kip, and further provided in the 12th clause of his will, “at the death of my said daughter Sarah Ann, to close this trust, I direct that my executors and trustees convey and transfer all of my estate, both real and personal, then remaining in their hands to such of my grandchildren as shall then be living (naming them) equally, share and share alike, and I .hereby give, devise and bequeath the same to such seven grandchildren, but if any of said seven grandchildren shall die previous to the decease of my daughter Sarah Ann, leaving issue him, her or them surviving, then I direct that such issue shall take the share to which their parent would have been entitled hereunder (if living).”
    One of such grandchildren died after the. testator and before the death of Sarah Ann Kip, intestate, without issue, leaving her surviving her husband.
    
      Held, that the provisions of the will gave to each grandchild a vested remainder in the residuary estate, subject to .be divested by its death with or without issue before the death of Sarah Ann Kip;
    That the husband and executor of the grandchild thus dying took no interest in the estate;
    That the fact that in a codicil, by which the testator directed that a grandchild, not included as a beneficiary under the will, should share equally with his other grandchildren named therein, the testator used the language, “ I hereby directing that said twelfth clause of said will shall apply to her and her heirs as though she had been originally named therein,” did not justify the court in giving a Construction to such 12th clause which would divest the estate of a grandchild only in case such grandchild should die and leave issue.
    ■ Ingraham and Rumsey, JJ.,-dissented.
    Appeal by the defendant, Arthur 0. Humbert, individually and as administrator, etc., of Florence A. Humbert, deceased, from a judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of Hew York on the 25th day of January, 1897, upon the decision of the court rendered after a trial at the Hew York Special Term.
    
      
      Elihu Root and Bronson Winthrop, for the appellant.
    
      Frank L. Hall, for the plaintiff, respondents.
    
      Geo. B. Adams, for the respondent William Ruloff Kip, and guardian ad litem for the infant respondent, Garret Berg Kip.
    
      Charles Steele, for the infant respondents French and others.
    
      Henry C. White, for the respondents Sarah Aim Kip, individually, and Henry Spies Kip.
   Williams, J.:

The action was brought to procure the construction of the will and codicils of Adam W. Spies, and to determine the rights and interests of the parties in the property left by the testator. The question involved in this action relates to the 12th clause of the will and the 4th clause of the second codicil. The will was executed in July, 1881, and the second codicil July, 1890. By the will, the testator made certain specific devises and bequests, and then gave all the residue of the property to the executors and trustees named in the will, in trust, to make certain specific disposition of the income during the lifetime of his daughter' Sarah Ann Kip, and then, by the 12th clause, he provided as follows : “ At the death of my said daughter Sarah Ann, to close this trust, I direct that my executors and trustees convey and transfer all of my estate, both real and persona], then remaining in their hands to such of' my grandchildren as shall then be living (except my said granddaughter Sarah Ann French), viz., Arthur Be Witt Cochrane, Adam W. Spies Cochrane, Cornelia Elizabeth Schell, Henry Spies Kip, Garret Berg Kip, William Rudolph Kip and Florence Adele Kip, equally, share and share alike; and I hereby give, devise and bequeath the same to such seven grandchildren, but if any of said seven grandchildren shall die previous to' the decease of my daughter Sarah Ann, leaving issue him, her or them surviving, then I direct that such issue shall take the share to which their parent would have been entitled hereunder (if living) under this clause of my will, said shares to be received by said grandchildren or their descendants free from any control or claim of any husband that she or they may have at any time.”

By the 4th clause of the second codicil he further provided as follows:

• “Fourth. I hereby direct that my said granddaughter, Sarah' Ann French; shall be included in the divisiqn of my estate as mem tioned in the twelfth clause of my said last will and testament and shall share therein equally with my other seven grandchildren, I hereby directing that said twelfth clause of said will shall apply to her and her heirs as though she had been originally named therein.”

The testator died May 31, 1891, leaving him surviving his daughter, Sarah Ann Kip, a widow with -four children, viz., Florence Adele Humbert, Henry Spies Kip, William Rudolph Kip and Garret Berg Kip, also three grandchildren the children of his deceased daughter, Hilda M. S. Cochrane, viz., Sarah Ann French, Adam W. S. Cochrane and Arthur DeWitt Cochrane. Sarah Ann French, at the testator’s death, had two children living, viz., Seth B. French and Hilda Cochrane French, and another child has been born to her since, viz., Ellen Mercer French. Testator also left him surviving another grandchild, the child of his deceased . daughter, Mary S. Barnes, .viz., Cornelia Elizabeth Schell. These eight grandchildren were the persons named in the will and second codicil and it will be observed that the eighth grandchild, Sarah Ann French, excepted in the 12th clause of the will, but brought within its provision by the 4th clause-of the second codicil had, at the time of the testator’s death, two children living and one has been born since. The trial took place in October, 1896. The will was made in July, 1890. At the' time of the trial the children of the eighth daughter, Sarah Ann French, were seven years and five years' and nine months of age respectively. None of them had been born, therefore, when the will was made —1881 ■— and only one of them when the codicil was made in 1890. A second one was born after the second codicil was made, and before the testator’s death, and the third had been born since testator’s death. The grandchild Florence Adele Humbert was married after the death of the testator and died soon after in October, 1895, intestate, leaving her surviving a husband, the appellant, but no children. The daughter of the testator, Sarah Ann Kip, and the other seven grandchildren are still living. The practical question involved in this action was whether the appellant, after the death of his wife, had any interest personally or as administrator of his wife’s estate in the property disposed of by the 12th clause of the will and the 4th clause of the second codicil. The parties seem to agree that the provisions of the will and codicil in question gave to the eight grandchildren vested remainders in the property. The only question is as to when and for what reason such remainders were divested and passed to other parties.

The appellant claims that such remainders were divested only by the death of the grandchild leaving issue before the death of Sarah Ann Kip, while the respondents claim that the remainders were divested by the death of the grandchild with or without issue before the death of Sarah Ann Kip. If there were issue, the interest went to the issue ; if no issue, the interest went to the surviving grandchildren and their descendants. In this case there were no .issue. The appellant claims, therefore, that the remainder never- became divested, but at the death of his wife became vested absolutely and the. interest passed to her heirs and next of kin, while the respondents claim that the remainder became divested at the death of Mrs. Humbert and passed to the seven surviving grandchildren and their descendants. It is not disputed that the testator might legally have disposed of the property in either way. The only question is what disposition he did make. It is a question of the construction of the language used. If the real intention of the testator is apparent, effect should be given to such intention without regard to technical rules or the use of particular words. It seems to u’s there can be no doubt as to what the testator’s intention was. He commenced the 12th clause of the will by the declaration that he desired to close the trust at the death of his daughter, Sarah Ann Kip, and for that purpose he directed his executors and trustees to dispose of the residue of his property remaining in their hands at that time. How ? By conveying and transferring it to such of his grandchildren as should then be li/ovng equally, share and share alike, and the only limitation of this direction is found after the word “ but ” a little further on in the clause, viz.: “ If any of said seven grandchildren shall die previous to the decease of my daughter Sarah Ann, leaving issue him, her or them surviving, then I direct that such issue shall take the share to which their parent would have been entitled hereunder (if living).”

Here is an: intention, expressed as clearly as language could do it,' to give the whole property to such grandchildren- as should be living when his daughter. Sarah Ann died, unless some of the grandchildren should have died before that time leaving issue,' in which case the issue should take the interest the 'parents would have taken if they had lived. This language is too plain to be disregarded or set aside by any technical rules of construction or fine spun arguments founded upon decisions in.other cases. It-is-not reasonable to suppose that the testator would so plainly express his. design and still mean by the other words in this clause nf the will to entirely change the disposition so clearly -indicated. He says .: “I hereby give, devise and bequeath the'same to such seven grandchildren.” By this language he clearly meant to give to such grandchildren the same interest he' had already indicated so plainly. Expressed more clearly, the clause- would have read : “I hereby "give^.' devise' and bequeath such interest in the property to such seven grandchildren.” The word “ same ” as used in the will clearly means not “such property”- but “such interest in the property.” as already indicated, and the interest so given to any grandchild was subject to be divested by the death of the grandchild before the death of Sarah Ann Kip, so that the surviving grandchildren would take it unless such deceased -grandchild left issue, and in that event the issue would -take such' interest. Such a, construction as this would give a reasonable effect to the whole of' this clause of the will and carry out - the clear intention of the testator. The construction contented for by the appellant would render all the language in the clause directing the disposition of the property by the executors and trustees at the death of Sarah Ann Kip, nugatory. It could never have been intended to express the intention of the testator so plainly as this clause does' it, as to the disposition of the property at the -death of - Sarah. Ann Kip, and then render all this language nugatory by inserting the ■ words as to present gift. The. present gift was not intended to be contradictory of such clearly expressed, intention but in harmony with. it, and the construction we have given alone will accomplish such intention. We think no force should .be given .. to the word “ heirs ” in. the 4th clause of. the codicil. Evb ■dently the' only purpose of the testator in making that codicil was to include his- eighth grandchild, Sarah Ann French, in the disposition of the property covered by the 12tli clause of the will. He could have had no thought then of changing the clause in the will in other respects, or of giving any construction to any language in ■ the will. The-words “ issue” and “ descendants” were used interchangeably in the 12th clause of the will, and the word “ heirs ” in the codicil was evidently used as a synonymous term. It was not used in any technical sense, and no argument should be based upon the use of this word “ heirs ” to change the reasonable construction already given by us of the. 12th clause of the will.

We think the decision of the trial court was right and that the judgment entered thereon should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concurred.

Ingraham, J. (dissenting):

This action is brought to obtain a construction of the 12th clause of the will of Adam W. Spies, deceased, and the' question presented depends upon whether or not the estate given by that clause of the will to the testator’s grandchildren vested upon the death of the testator, to be divested only upon the contingency of such grandchild dying before the determination of the life estate, leaving issue him or her surviving, or whether such remainder was subject to be divested by the death of the grandchild dying before the death of the person upon whose "life "the trust- was. limited, whether he or she left issue surviving or not.

The learned court below by its first conclusion of law held “ that-the remainders devised to the said eight grandchildren of the testator by his said last will and testament and the codicils thereto, are vested remainders,” and to that finding no exception was taken by either party so far as siich remainder is held to be a vested remainder, but the learned trial court also found that such remainder “ is subject to being divested by the death of the remainderman prior to the death of the testator’s daughter, the said Sarah Ann Kip, upon whose life the trust estate is limited.” It is quite clear that by the express provisions of the will the remainder vesting in any one of. the eight grandchildren would be divested upon the death of such grandchild leaving issue. The. testator has so expressly declared. The court below, however, held that by the will it was the testator’s intention, although there is no express direction to that effect, that such estate so vested in one of his eight grandchildren' should be divested upon the death of the grandchild without issue.

We have a. will by-which the testator creates a trust estate dependent upon the life of his daughter,, with a remainder over whereby he constitutes his grandchildren the owners of the.remainder of the estate, the gift to them being a present gift,. “ and I hereby 'give, devise and bequeath the same to' such seven grandchildren,” with an express provision that such remainder so vested shall be divested in case any of his grandchildren dies leaving issue. That, this, is tile legal effect of the language used is clear. So far we have the clearly expressed and consistent disposition of the property by the. testator, but, from the use of some words in a former part of the same clause, the court has-assumed that the testator, had a different intention from that, which the úse of the words quoted woúld seem to imply, and the legal effect of this provision is defeated because the court has.seen fit to imply from other parts of the will a different intention. '

This will has once before been presented to the courts for construction, and a consideration of the opinions, in that case- is quite instructive in the determination of the -questions that are now before us. At the Special Term, on the trial of that case. (Cochrane v. Schell, 140 N. Y. 516), the court held that this was a vested remainder subject to be. divested upon' the happening of the one' contingency named in the will, viz., the death of one of the grand-. children leaving issue surviving. Upon appeal to the General Term of the Supreme Court, that court held that, as that contingency had not yet arisen, it .was improper to determine it in advance of-any necessity for such a determination,. and, therefore, modified, the judgment by striking out the adjudication upon this question.. Upon.the. appeal'to the Court of Appeals, that court held that whether or npt the Supreme Court would determine such a question in advance of' a necessity for its determination Was a matter vesting in the judicial discretion of the court below, and With that the Court of Appeals- would not interfere. The court then determined the questions presented upon that appeal, viz., -as to the validity of the trust created by the 9th clause of the will,, holding it to be a valid trust. Upon that appeal it appears from the opinion that all the counsel representing the various.parties conceded that the estate vested and that the grandchildren - had a vested remainder, except that the executors simply stated that that question was not at present before the court. It was held that any surplus income not necessary to pay the annuities directed to be paid by the will was “ rents and profits ” undisposed of by the will, and that, therefore, such rents and profits belonged to the grandchildren as the persons presumptively entitled to the next eventual estate under section 40 of the Statute of Uses and Trusts (1 R. S. 726). The appellant in that case claimed that, the remainder being a vested remainder, this section would not apply, because the rents and profits were not undisposed of “in consequence.of a valid limitation of an expectant estate.” The court held that while it was conceded by the parties before it that the remainder was vested and not contingent, the appellant, to succeed, must at least be able to show that no contingency attended any of the limitations of the future estate which prevented the conveyance by persons in being of an absolute remainder in fee; that this could not be done, because-upon the death of any grandchild during the trust term, leaving issue, such issue, whether born before or after the death of the testator, would take, by way of substitution and as purchasers, the share of the deceased parent; and that being so, and assuming that the grandchildren took vested remainders, it was a common case of a limitation to one person in remainder, with a gift over to another person on the death of the first remainderman, or the happening of any - other event before the remainder vested in possession ; that such was the' situation in this case, and until the death of a grandchild during the term it could not be ascertained in whom the remainder in the share of the one so dying would vest. Issue not yet in being may be born who will be entitled to take under the . will.” There is here no suggestion that if the estate in remainder Was vested in the grandchildren, it could be divested in any way except by the death of a grandchild leaving issue; and upon that appeal, as upon this, it seems to have been conceded that such a vested estate was created by the will. What .was left undecided was whether or not the remainder vested at all. No doubt was expressed as to what contingency would divest such a remainder if it had vested. Thus the trend of the opinions, expressed on the prior litigation upon this will, so far as appears from the views of the judges who have examined it, was that the remainder being vested, the only contingency upon which it would become divested was that of one of the grandchildren dying leaving issue surviving. A critical examination of the will itself we think clearly sustains this construction. A'trust was created by the 9th clause of the will which was to continue during the' lifetime of the testator’s daughter Sarah Ann, and the disposition of the estate after the death of his daughter was determined by the' 12th clause of his- will. The language of the 12th clause is as follows: At the death of my said daughter Sarah Ann, to close this trust I direct that my executors and trustees convey and transfer all of my estate, both real and personal, then remaining in their hands to such of my grandchildren as shall then be living (except my said granddaughter Sarah Ann French), viz., Arthur DeWitt Cochrane, Adam W. Spies Cochrane, Cornelia Elizabeth Schell, Henry Spies Kip, Garret Berg Kip, William Rudolph Kip and Florence Adele Kip, equally, share and share alike, and I hereby give, devise and bequeath the same to such seven grandchildren, but if any of said seven grandchildren shall die previous to the decease of my daughter Sarah Ann leaving issue him, her or them surviving, then I direct that such issue Shall take the share to which their parent would have been entitled hereunder (if living) under this clause of my will, said shares- to be received by said grandchildren or their descendants free from any control or' claim of any husband that she or they may have at any time.”

When we come to closely analyze this clause its meaning seems to us to be quite clear. It commences with a direction to his executors as to what they are to do with the -estate at the time of the death of his daughter, upon whose life the trust estate was limited. That direction is that they are then to convey and transfer his estate, both real and personal, then remaining in their hands to such of his grandchildren as shall then be .living, except one grandchild named, the grandchildren being named who were to receive his bounty. This,' standing alone, would not be considered as a present gift of any interest. It would be a mere direction to the executors to transfer or convey or pay at a future time. There are no words of gift, either present or future, vested or contingent, contained in the 1st paragraph of this clause' of the will; and while under such cireumstances the beneficiaries or those entitled to receive such payment or transfer would have a right to enforce such direction upon the happening of the contingency, at the same time there is nothing in the language used indicating an intention of the testator that such children were to have any interest in the property until they obtained such an interest by his executors or trustees following his directions to pay or transfer. Had the testator desired to limit the interest of these grandchildren to one by which they could enforce a direction of the testator to pay, transfer or convey,, he would have stopped with the paragraph as it has been quoted; or, if he had desired that the executors should pay the share of any child to the issue of such child where the child had died leaving issue, it would have been perfectly simple for him to add such a direction to the one directing his executors as to the disposition that they were to make of his estate upon the happening of that contingency. To this direction to the executors as to whom they should pay the shares of this estate to upon the death of his daughter, he, however, added the words which seem to me controlling as to what interest he intended that his grandchildren should take when the will became effectual to dispose of his property. As before stated, the first part of the clause was a direction to his executors. It, in terms, gave no estate to any one; but by it the executors or trustees were directed to do an act which, when they had performed that act, would have vested an estate in those to whom they were directed to convey or transfer. Then the testator comes to say what, interest he wishes his grandchildren to have in this residuary estate, and how does he express it ? He uses words which have been familiar in the making of wills since they were allowed by law, which have been given but one meaning, and which always imply the present passing of an interest or estate: “ And I hereby give, devise and bequeath the same (that is, the share of his estate which his executors were directed to convey to his grandchildren upon his daughter’s death) to such seven grandchildren.” He directs his executors to pay to those who shall be living at the time of his daughter’s death a share of his estate, and then he says such share (that is, one-seventh of his residuary estate) he thereby gives, devises and bequeaths to each of the seven grandchildren. It seems a little difficult, in view of this language, in view of the form used by the testator in which he has designated the estate that he wishes to go to the grandchildren at the time of his death, to say upon what any court can assume to ascertain an intention which directly contradicts the used words and renders them useless and surplusage. If we are to enforce wills made by testators, 'and not make wills for them to suit our notion pf what the testator should have thought or meant,, it seems to me that we would be entirely unjustified in eliminating the only words used in this will which give to any one an estate or interest in this residuary estate. For this will can be searched in vain for one other word by which the title to the residuary estate is disposed of, except the words I have quoted and which the court below, by’ its judgment, has disregarded. ■ But that the testator understood that by these words he gave to his grandchildren an .estate in his lands which vested at his death, if it needed any confirmation, is made, I think, certain by a consideration of the 4th clause to the second codicil to his will. .In considering the effect of this 4th clause we must keep in mind that' the will and- this codicil took- effect at the same time and were a part of the same instrument, and that by the publication of the codicil there was a repUblication of the will in question. Now, by the will, he had excluded one grandchild from' an interest in this devise or bequest of the remainder of the estate. ' He repented of such exclusion and wished to make this child a participant of his bounty. The 4th clause of'this codicil carried this into effect. He there said: ■ “I hereby direct that my said granddaughter • Sarah Ann French shall be included in the division of my estate as- mentioned in the twelfth clause of my said last will and testament, and shall share therein equally with my other seven grandchildren.” That is the expressed and declared intention as to the purpose for which he had inserted this 4th clause in the codicil; and to carry that intention out, viz.,-an intention to give to this excluded granddaughter the same interest in his residuary estate that he gave to his seven grandchildren by the 12th clause of his will, what does he do? He said: “ I hereby directing that said twelfth clause of said will shall apply to her and her heirs as. though she had been originally named therein.”- Now, upon what principle can we say that if the construction given to this will by the court below is correct her heirs could have any interest in the property which this grandchild would take under the 12th clause? Her issue might; but the testator? by using the word “ issue ” where he wished to divest the estate that had vested, and using a different word, a word of a much broader meaning, when he wished to bestow upon this grandchild the estate subject to its being divested by the happening of the contingency, clearly indicates, I think, that he understood perfectly well that by this 12th clause of the will, when this grandchild became included in it, she and her heirs took a vested remainder in the residuary clause, subject to be defeated by the happening' of the contingency therein named, viz., her death, leaving, issue during the life of the person upon whose life the trust estate was limited.

Our attention was called upon the argument to many cases, the principle of which it is claimed affect the construction to be given to this will. I have examined them all, but do not think that any advantage can be gained by a quotation from or a citation of any of them. The principles which have been laid down are so familiar that there is but little advantage in restating them. It seems to me clear that it was not the intention of the testator to give this residuary estate to a class, but that the bequest or devise was to the individuals named by him, and that under the provisions of the Revised Statutes these future estates vested on the death of the testator, there being a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate.” (1 R. S. 723, § 13.) When, however, we come to determine upon what contingency this vested estate is to be divested, then it is conceded that the object of the court should be to ascertain and give effect to the intention of the testator; but, as always in such cases, the first and important question presented is how such intention is to be ascertained. Where it is clearly expressed by the language used in the will there is no difficulty. Where two clauses appear to be somewhat inconsistent and capable of a different construction as to the testator’s intention, a much greater responsibility is placed upon the court, for it has to deter-' mine which of the two expressed intentions was intended by the testator. It seems to me.that, in such a case, effect should be given to the clause of the will which itself constitutes the provision which creates the estate; and when words, the meaning of which have become familiar to" many generations of lawyers by repeated use, ave used by a testator in creating the estate which he intends to vest in the beneficiaries, it does not seem to me. that a court is justified- in saying that , the testator had a different intention than that conveyed by, giving to such Words- their ordinary legal meaning, because of: other expressions contained in the will,, not immediately connected with the creation of the estate in the property, which passes under ' the Will, and which might indicate a different view. When such a question is presented, it seems to me that what was said by Sir William -Blaokstone in his judgment in the Case of Perrin c& Blake, Which is printed in Hargrave’s Law Tracts, 495, should be clearly ■ before the- mind of every judge whose, duty it is to pass upon such-questions : “For, as on the one hand, it would be very unreasonable to oontroul the plain imtent of a testator by technical rules, which were principally contrived to ascertain it, so, on the other hand, where the intent is obscure or even doubtful, and liable to a variety of conjectures, it is the best and the safest way to adhere to those criterions, which the wisdom of- the law lias established for ages together, for : the- certainty and quiet of property. Every testator, when he uses ; the legal idiom, shall be supposed to use it in its legal meaning, unless he very plainly declares that he means to use it otherwise. And if the contrary doctrine should prevail; if courts either of law or. equity (in both of- which the rules of interpretation must be always the same), if these or either of them, should indulge an unlimited latitude of forming conjednvres upon wills, instead of attending to their gram- - matical or.legal construction, the consequence must be endless’lift gatiom’ Every title to an estate that depends upon, a will must be brought into Westminster Hall, for if once we depart from the ■ -established rules of interpretation, without a moral certainty that the meaning of the testator requires it, no interpretation can be safe • till it has received the sanction of a cou-rt'.of justice.” We cannot say that this testator, when he used' the words I hereby give, devise - and bequeath the same to such seven grandchildren,” meant anything but what the Words themselves implied, viz., that when his will took effect a remainder vested in these seven grandchildren, and that the subsequént paragraph of the clause in effect indicated upon what, contingency he wished such.- vested remainder to be divested, viz., the death of a grandchild leaving issue him or her ' surviving. .

My conclusion, therefore, is that there vested in each of these eight grandchildren one-eighth of the residuary estate, subject to the life estate created by the 9th clause of the will; that such vested remainder was to be divested only in the event of the death of a grandchild leaving issue surviving, and that, upon the death of the grandchild Florence A. Humbert, without leaving issue, her share in this estate passed to her personal representatives or heirs at law.

The judgment appealed from should be modified in accordance with these views, and, as modified, affirmed, with costs to all parties to be paid out of the estate.

Bumsev, J., concurred.

Judgment affirmed, with costs.  