
    ■Jane Maria Leonard, et al., Respondents, against Sophie Kingsland, Appellant.
    (Decided June 30th, 1884.)
    A will contained, after devises to three of the testator’s children for their natural lives only and at tlieir deaths to their children or others named, a residuary devise to a son, the only other child, “ and to his heirs,” but in case he should die without lawful issue, to testator’s remaining children. Held, that the contingency of the death of the devisee contemplated in such last devise was his death during the lifetime of the testator; and that, he having survived the testator, the residuary estate vested in him absolutely.
    Appeal from a judgment of this court entered upon the decision of a judge at a trial without a jury.
    The action was brought to set aside certain deeds by which the property known as No. 40 Stuyvesant Street in the City of New York was conveyed to the defendant Sophie Kingsland.
    Daniel Kingsland (who is designated in the following opinion as. “ Daniel Kingsland the elder ”) at his death left surviving him four children, the jroungest of whom was a son bearing the same name (who is designated in the following opinion as “Daniel Kingsland the younger ”). His will, after gifts to the three elder children during their natural lives, and at their death to their children, if any, and, if none, to other persons designated, and after other dispositions of portions of his property, contained the following provision: “ All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath unto my son Daniel Kingsland and to his heirs, but in case my son Daniel should die without lawful issue, I give and bequeath it to my remaining children, share and share alike.” Out of moneys derived from the residuary estate so devised and bequeathed to him, Daniel Kingsland the younger erected a dwelling-house and made other improvements upon the lot No. 40 Stuyvesant Street, which he had previously purchased ; and subsequently conveyed the property through a third person to his wife, the defendant Sophie Kingsland. He afterward died, leaving surviving him said defendant, his widow, but no child or descendant of any child; and by his will, gave, devised and bequeathed his residuary estate to the persons who, by the will of his father, were entitled upon his death without lawful issue to the estate thereby given to him, reciting that his said residuary estate was, in his opinion, fully equal in value to the estate received by him. under the will of his father. Thereafter two other children of Daniel Kingsland the elder who were still living and the children of the third who had deceased, brought this action to set aside the deeds by which the property No. 40 Stuyvesant Street had been transferred from Daniel Kingsland the younger to the defendant, and for other relief, claiming the property as a substituted security for such portion of the residuary estate of Daniel Kingsland the elder, as was required to pifrchase the lot and erect the dwelling-house, and claiming that the property belonged to the plaintiffs as part of such residuary estate.
    Upon trial at an equity term, the judge found in favor of plaintiffs, and judgment for plaintiffs was entered upon his decision. From the judgment the defendant appealed.
    
      Charles E. Miller, for appellant.
    Daniel Kingsland the younger, having survived his father, took an estate in fee. The provision in his father’s will in ease of his death without issue refers only to the case of his death before the death of his father. This is manifest from a comparison of this provision with those made by testator for the benefit of his three other children.
    In every one of these cases the testator gives the property to them respectively “ for and during his (or her) natural life; ” and upon their decease he gives the property to their children.
    •Neither of these provisions does he make with regard to Daniel’s share. He gives it to him and his heirs, not to hold during his natural life, but in fee.' If Daniel died during his father’s life, his heirs, to wit, his issue, would take, and if no issue, his remaining brothers and sisters would take; but if he survived his father, the estate vested in fee in him.
    The father clearly understood the language he was using, and in every case where he intended the estate after his death to terminate on the death of the first taker, he used the above words, “ during his natural life.” But with Daniel’s share he made the distinction above stated.
    Independently of the foregoing considerations it is well settled that the language of the will in thé absence of any other controlling provision of the will showing a contrary intention according to the recognized rule of construction applicable to wills, refers to a death in the lifetime of the testator.
    And such is emphatically the rule when a devise is in fee with a gift over in case of death (Clayton v. Lowe, 5 Barn. & Ald. 686; Rogers v. Rogers, 7 Week. Rep’r 541; Humphreys v. Howes, 1 Russ. & My. 639; Rheeder v. Owen, 3 Brown Ch. Cas. 240; Yarley v. Winn, 2 Kay & J. 700 ; Gee v. Mayor of Manchester, 17 Q. B. 737 ; Faharay v. Holsinger, 65 Pa. St. 388; Caldwell v. Skilton, 13 Pa. St. 152 ; Biddle's Estate, 28 Pa. St. 59; Schoonmaker v. Stockton, 37 Pa. St. 461; Shutt v. Rambo, 57 Pa. St. 151; Gibson v. Walker, 20 N. Y. 476; Downing v. Marshall, 23 N. Y. 366 ; Ware v. Watson, 7 De Gex, Mac N. & G. 248; Converse v. Kellogg, 7 Barb. 590; Livingston v. Greene, 52 N. Y. 118-124; Loughlin v. Mahon, 17 Hun 215; Kelly v. Kelly, 61 N. Y. 47; Embury v. Sheldon, 68 N. Y. 227).
    
      Nicholas Quackenboss, for Jane M. Leonard, respondent.
    The defendant’s exceptions are not well taken. The evidence objected to was all competent as part of the res gestee.
    
    The four plaintiffs, children of the son of Daniel Kings-land the elder, Thorn S. Kingsland, who died June 12th, 1859, have no interest whatever in the residuary estate, and the complaint, as regards them, should have been dismissed on the motion of defendant’s counsel. The will of Daniel Kingsland the elder created a contingent remainder in favor of such of Lis children as should remain at the decease of Daniel Kingsland the younger, provided the latter died without a child living at the time of his death, which said estate would vest in and belong to the remaining children of said Daniel Kingsland the elder, on the happening of said contingency. The persons intended by the will of Daniel Kingsland the elder as his “ remaining children ” who were to take in the event of Daniel Kingsland the younger dying without a child or children, were such children of Daniel Kingsland the elder only as were living at the time of the death of Daniel Kingsland the ymunger without a child or children. There is nothing in the will of Daniel Kingsland the elder to indicate that in any part of the will lie used the words “my children,” to include his grandchildren ; but on the contrary, in every clause he uses the words, “my children” to designate and include his own children, and only his own children.
    The word “children,” in its primary and ordinary sense, means the immediate legitimate descendants of the person named. And where there is nothing to show that the testator intended to use it in a different sense, it will not be held to include grandchildren or more remote descendants (Cramer v. Pickney, 3 Barb. Ch. 466, 475; Wylie v. Lockwood., 86 N. Y. 291, opinion by Danforth, J., pp. 297, 298).
    
      Valentine Marsh, for Hannah C. Schuyler et al., respondents.
    No harm was suffered by defendant by the manner of introducing plaintiff’s evidence, and in equitable actions exceptions to evidence are not regarded if the court is of opinion that no injustice has been done by the course complained of (14 Abb. N. S. 284; 15 Abb. N. S. 300; King v. Whaley, 59 Barb. 71; Church v. Kidd, 3 Hun 254; Milliner v. Luce, Id. 496 ; Consolidated Fruit Jar Co. v. Mason, 7 Daly 64).
    The finding of a judge, like the verdict of a jury, is conclusive on the controverted question of fact. If there is evidence to support the finding, the appellate court will not interfere with it. On the issue of the actual use of the funds of or derived from the residuary estate of Daniel Kingsland the elder by Daniel Kingsland the younger to build the house and improve the lot No. 40 Stuyvesant Street, the evidence of the plaintiff is conclusive in the absence of any testimony controverting the same (Ball v. Loomis, 29 N. Y. 412; Durant v. Einstein, 4 Robt. 423; Loeschigk v. Peck, 3 Robt. 331; Marsh v. Palmer, 1 Sweeney 523; Bearss v. Copley, 10 N. Y. 93; Whiteman v. Mayor, 10 Week. Dig. 119; American Corrugated Iron Co. v. Eisner, 39 N..Y. Super. Ct. [7 Jones & S.] 200; Merchant v. Belding, 49 How. Pr. 344; Fiske Pavement Co. v. Evans, 60 N. Y. 640; Justice v. Lang, 63 N. Y. 633).
    The transfer to defendant was made without consideration, and she did not take it, therefore, as a purchaser in good faith for a valuable consideration (2 Story Eq. Jurisprudence §§ 1258, 1264).
    Upon the death of Daniel Kingsland the younger, without issue, the residuary estate of Daniel Kingsland the elder vested in the plaintiffs. The plaintiffs who are children of Thorn S. Kingsland, deceased, son of Daniel Kingsland, the elder, took in right of their father, and the other plaintiffs in their own right.
    The words “remaining "children ” used in the will of Daniel Kingsland the elder are not to be construed to exclude the children of Thorn S. Kingsland. While a devise to children will not ordinarily be held to include grandchildren when understood in its primary sense, yet, if a different intention be clearly expressed, or may be fairly inferred from the instrument taken as a whole, a devise to children may include grandchildren (Scott v. Guernsey, 48 N. Y. 106-121; Low v. Harmony, 72 N. Y. 408-414; Palmer v. Howe, 84 N. Y. 516; Phillips v. Davies, 92 N. Y. 199).
    The provisions of the will of Daniel Kingsland the elder show that the words “remaining children” were used in the sense of “children other than Daniel Kingsland the 3'ounger.” The grandchildren are even mentioned, and a provision made for them, showing no manifest intention to ignore them in the distribution of the estate (Prowitt v. Rodman, 37 N. Y. 42.
    The plaintiffs, as children of Thorn S. Kingsland, succeeded to the interest of their father, who was alive when his father died, and had an interest in the residuary estate, expectant, but yet discernible, devisable and alienable (1 R. S. 725-773).
    The word “ remaining ” must be held to relate back to the time of the original testator’s death (Buschnell v. Carpenter, 92 N. Y. 270).
    The estate, on the happening of the contingency—the death of Daniel Kingsland the 3'ounger, without issue— vested absolutely in the plaintiffs (Moore v. Lyon, 25 Wend. 119; Kelly v. Kelly, 61 N. Y. 47; Lucera v. Lucera, L. R. 7 Ch. D. 255; Eyre v. Marsden, 4 Mylne & C. 231, 239; 3 R. S. 5th Ed. 12 § 22). Upon the death of Thorn S. Kings-land his interest passed to his children (Fearne on Remainders 3d Am. ed. 364, 552-553; 1 R. S. 725 § 35; Id. 773 § 2; Cutting v. Cutting, 86 N. Y. 552, 545).
   Chables P. Daly, Chief Justice.

The contingency referred to in the will-of Daniel Kingsland the elder—the death of Daniel Kingsland the 3rounger—meant his death during the lifetime of the testator, and as he survived the testator, the contingency' provided for never happened, and the residuaiy estate vested in him absolutely.

When a devise or bequest is made to a person, with a remainder over in case of his death, it is the general rule of construction that what is meant is his death during the life time of the testator. The testator having in contemplation the disposition to be made of his property at the time of his death, it is assumed, in the absence of an3'thing in the will to the contraiy, to have been his intention to make provision for a contingency that might happen between the time of making the will and that event. Where, therefore, a remainder over is provided for in case of the death of a devisee or legatee, the will is, as I have said, construed to mean his death during 'the lifetime of the testator, unless there are controlling provisions in it, or from the whole tenor of the will it is evident that the intention was otherwise (Livingston v. Green, 52 N. Y. 124; Cambridge v. Rous, 8 Vesey 21; Emory v. Sheldon, 68 N. Y. 233; Kelly v. Kelly, 61N. Y. 50; Moore v. Lyons, 25 Wend. 119; Lowfield v. Stoneham, 2 Strange 1261; Rose v. Hill, 2 Burr. 881; Schoonmaker v. Stockton, 37 Pa. St. 461; Hinckley v. Simons, 4 Vesey 160; Trotter v. Williams, Prec. Ch. 78; 2 Eq. Cas. Abr. 344, pl. 2; 2 Jarman on Wills 2d Am. ed. c. 49, pp. 468, 469, 500; 1 Roper on Legacies 2d Am. ed. pp. 607, 608).

The reason of this rule is in part as above stated, but in addition to this, the law will never construe a remainder to be contingent, when the estate can be taken to be vested, the policy of the law being to construe estates as vested instead of contingent when there is any doubt (Moore v. Lyons, 25 Wend. 126,152).

Slight circumstances may suffice to show the intention, as in Douglas v. Chalmers (2 Vesey Jr. 50), in which so slight a circumstance as the bequest of the testatrix’s finest diamond ring, in the codicil of the will, was regarded as inconsistent with the supposition of the legatee’s taking the whole interest in the residue, whilst if she took it for life onty it was very natural.

The construction which makes the words “in case of death,” &c., provide against the event of . the legatee’s death in the lifetime of the testator, applies only where the prior gift is absolute and unrestricted, and not where the legatee takes a life interest only, for in the latter case it is assumed that the death referred to is the death that puts an end to the life estate; or, to express it differently, this construction applies only where the legacy is immediate, but made defeasible on the death of the legatee (1 Roper on Legacies 607; 2 Jarman on Wills 666; and cases cited in both works). There are a few cases, says Jarman, of immediate bequests in which the words under consideration have been construed to refer to death at any time, and not to the contingent event of death in the lifetime of the testator; but in each, he says, there seems to have been some circumstances evincing an intention to use the words in that rather than in the ordinary sense (2 Jarman on Wills 660).

In this case there are none. The prior devise to Daniel Ivingsland the younger is immediate. It is to him and “to his heirs,” but defeasible upon his death. This is not only the case, but the property left to the remaining three children of the testator is left to them for their natural lives only, and at their deaths to their children, if they have any, and if not, to other persons who are designated. There is, therefore, in this will, an immediate and absolute devise to Daniel, defeasible only as has been stated, and separate life estates in each of the testator’s other children —a distinction that is very material in the construction of the will as tending to show that if it had not been his intention that Daniel, if he survived him, should have the residuary estate absolutely, he would have so expressed it, and given him, like the other children, a life estate only. The. will, moreover, in the apt use that is made in it of technical terms, and the general structure of it, denotes that it was prepared by a professional person, who, it may reasonably be assumed, was acquainted with the rule, as it is well established, that where the contingency of the death of a legatee is provided for, the construction of the law is his death during the lifetime of the testator, unless there are provisions denoting the contrary; and this is a circumstance entitled to weight where no provisions have been inserted expressing a contrary intention (Moore v. Lyons, 25 Wend. 119).

In one of the earliest cases in which this question arose (Lowfield v. Storeham, 2 Strange 1261), the devise was “to my loving brother; and in case of his death, to his wife; ” and it appearing that the brother survived the testator, it was held that the legacy vested in him at once on the death of the testator.

And in one of the most recent cases (Emory v. Sheldon, 68 N. Y. 227), the rule was applied under circumstances not unlike the case now before us.

In that case there was a life estate during the lifetime of the wife, and afterwards during the lifetime of a son, upon whose death the trust created ceased, and by the will the residue and remainder of the estate was left to three other children in equal parts, but in the event of any one of them dying, leaving lawful issue surviving, the issue was to take the share which the parent would have taken if living ; and should no lawful issue survive, the share of the one dying went to others who were designated. One of these three persons was Daniel Emoiy. He did not take directly, like Daniel Kingsland the younger, but took a proportional part of the residuary estate after the trust estate ceased. He survived the testator and had a child born after the testator’s death. The question was raised whether the death referred to in the will meant a death before or after that of the testator; and there being no controlling provision showing a contrary intention, it was held that the will, according to the recognized construction applicable to wills, referred to a death happening in the lifetime of the testator; and as Daniel Emory survived the testator, that he took, upon the death of the latter, an absolute, indefeasible estate in remainder expectant on the final termination of the trust term.

In the application of this rule I can see no substantial difference between that and the present case. There the devise was to Daniel Emory, or, in the event of his death, to his lawful issue, &e. Here it was to Daniel Kingsland the younger “ and to his heirs; ” but if he died without issue, then to the testator’s remaining children; and if, in the former case, the remainder vested absolutely in Daniel Emory, on the death of the testator, an estate in fee must also have vested absolutely in Daniel Kingsland the younger, on the death of his father.

This being the construction of the will, and the residuary - estate having passed, upon the, death of the testator, to Daniel Kingsland the younger, in fee, the plaintiffs take under his will, and not under that of Daniel Kingsland the elder, and have no cause of action, the property 40 Stuyvesant Street having been transferred by Daniel Kingsland the younger, in his lifetime, to his wife, the defendant.

The judgment of the Special Term therefore should be reversed.

Larremore and Beach, JJ., concurred.

Judgment reversed.  