
    In the Matter of the Accounting of Bank of New York, as Trustee under the Will of Margaret E. Villalonga, Deceased, Respondent. Amy V. Whittemore, Appellant; Jane T. Mann et al., Respondents.
    Argued January 14, 1959;
    decided July 8, 1959.
    
      
      Milton Sargoy and Thomas M. Aron for appellant.
    I. The rule in New York is that the word “ children ” means sons and daughters, and not grandchildren or remoter descendants, unless the will indicates an unmistakable intent to the contrary. (Pimel v. Betjemann, 183 N. Y. 194; Matter of King, 217 N. Y. 358; Matter of Pulis, 220 N. Y. 196; Matter of Schaufele, 252 N. Y. 65; Matter of Truslow, 140 N. Y. 599; Matter of Keogh, 126 App. Div. 285, 193 N. Y. 603; Matter of Barnes, 286 App. Div. 346, 2 N Y 2d 787; Matter of Curtis, 252 App. Div. 256, 278 N. Y. 589.) II. The authorities do not support the rule enunciated by the Appellate Division. (Prowitt v. Rodman, 37 N. Y. 42; Soper v. Brown, 136 N. Y. 244; Matter of Keogh, 126 App. Div. 285, 193 N. Y. 603; Matter of Ordway, 196 N. Y. 95; Matter of Currier [Woodlawn Cemetery], 300 N. Y. 162; Matter of Clarke, 145 Misc. 660.) III. The rule enunciated by the Appellate Division does not apply to the facts of this case. (Matter of Schaufele, 252 N. Y. 65; Matter of Barnes, 286 App. Div. 346, 2 N Y 2d 787; Matter of Curtis, 252 App. Div. 256, 278 N. Y. 589; Matter of Pulis, 220 N. Y. 196; Pimel v. Betjemann, 183 N. Y. 194.)
    
      Alexander R. Hamilton for Jane T. Mann, respondent.
    I. Inherent in the general rule excluding grandchildren from the term ‘ ‘ children ’ ’ are exceptions where justice or reason requires it, based upon a showing of a contrary intention from the context of remaining portions of the will, or upon a consideration of surrounding facts and circumstances. (Matter 
      
      of Schaufele, 252 N. Y. 65; Matter of Truslow, 140 N. Y. 599; Prowitt v. Rodman, 37 N. Y. 42; Soper v. Brown, 136 N. Y. 244.) II. The construction of the courts below is amply supported by the authorities. (Matter of Schaufele, 252 N. Y. 65; Matter of Keogh, 126 App. Div. 285, 193 N. Y. 603; Matter of Pulis, 220 N. Y. 196; Matter of Truslow, 140 N. Y. 599; Matter of Wolfe, 201 Misc. 226; Matter of Hurry, 193 Misc. 360; Matter of Barnes, 286 App. Div. 346, 2 N Y 2d 787; Matter of Curtis, 252 App. Div. 256, 278 N. Y. 589.)
    
      Harry Suchman, in person, and Hyman Bravin for Harry Suchman, special guardian for Donald Cameron and others, infants, respondents.
    I. The will should be construed as including all descendants of later generations within the meaning of the word “ children.” (Matter of Pulis, 220 N. Y. 196; Matter of Schaufele, 252 N. Y. 65; Prowitt v. Rodman, 37 N. Y. 42; Roe v. Vingut, 117 N. Y. 204; Haug v. Schumacher, 166 N. Y. 506; Williams v. Jones, 166 N. Y. 522; Matter of Miner, 146 N. Y. 121.) II. The word “ children ” designated a class, the benefits under which are confined to those who come within the category at the time when distribution or division is directed to be made, excluding individuals not surviving at that time.
   Chief Judge Conway.

The testatrix, Margaret E. Villalonga, drew a will in December, 1923, two years prior to her death. Her will is brief, and provides as follows:

‘ ‘ Second : I give and bequeath One Thousand Dollars ($1,000.) in cash to my great-niece and namesake, Margaret Russel Graves.
‘ ‘ Third : I give and bequeath my opal and diamond ring to my niece, Matille Graves.
"Fourth : I give and bequeath my cluster diamond ring to my niece, Leah Peoples.
'‘Fifth : I give and bequeath my solitaire diamond ring, and my watch and chain to my granddaughter, Amy Villalonga.
Sixth: All the rest of my jewelry I direct to be divided as equally as possible between my two granddaughters, Jane C. Villalonga and Amy Villalonga.
‘ ‘ Seventh : I give, devise and bequeath all the rest, residue and remainder of my property, both real and personal, wheresoever the same may be found, to my executors, hereinafter named, in trust, however, to keep the same invested, and pay over the income thereof to my son John L. Villalonga, during his life and upon his death the income to go to his wife, Constance C. Villalonga, and upon the death of both my son, John L. Villalonga, and Ms wife, I direct the principal to be paid over to any children surviving them, but in case no cMldren survive Mm, or his wife, I will and direct that the said property be distributed between the children of my nephew, R. F. Craves. ’ ’ (Emphasis added.)

The life beneficiaries had two daughters, Amy and Jane C. Jane C. did not survive the life tenants, but left a daughter, Jane T., who now claims that she is entitled to share equally in the remainder with Amy, her aunt. Amy contends that, as the sole surviving immediate offspring of the life tenants, she alone is entitled to the remainder given to the surviving “ children ’ ’ of the life tenants. Jane T., however, argues that she also is included in the word “ children” as the sole surviving child of Jane C. The resolution of this controversy depends upon the intention of the testatrix. When she gave the remainder to the surviving “ children ” of the life tenants, did she contemplate only surviving immediate offspring, or did she intend that surviving immediate offspring should share the remainder with children of predeceased immediate offspring?

In the leading case of Matter of Schaufele (252 N. Y. 65) we stated the rule thus: “ * * * grandchildren are never interpreted as children unless the will as a whole shows that unmistakable intent. The term can be so interpreted only when reason demands it [citing cases]. Before such a construction is justifiable, other expressions or clauses in the will must be found tending to contradict the use of a word which denotes immediate offspring, and to reveal a design to include descendants of a later generation” (pp. 67-68, emphasis added). The same rule of law is expressed in numerous other cases. (See Matter of Barnes, 2 N Y 2d 787; Matter of Watson, 262 N. Y. 284; Matter of Meng, 227 N. Y. 264, 272; Matter of King, 217 N. Y. 358, 361; Pimel v. Betjemann, 183 N. Y. 194, 200; Matter of Truslow, 140 N. Y. 599, 603; Matter of McKim, 115 Misc. 720, 722; Palmer v. Horn, 84 N. Y. 516, 521; Magaw v. Field, 48 N. Y. 668; Matter of Phipard, 182 App. Div. 357, 358, affd. 223 N. Y. 676; Davies v. Davies, 129 App. Div. 379. 382-383, affd. 197 N. Y. 598; Matter of Keogh, 126 App. Div. 285, 287; Matter of Breithaupt, 10 Misc 2d 954, 956; Matter of Greenberg, 198 Misc. 1079, 1081; Matter of Harris, 138 Misc. 287, 288.) Under these eases it is clear that we must reverse the orders below and hold that Amy Villalonga Whittemore is alone entitled to the remainder of the estate of Margaret E. Villalonga.

This will is a simple one, cast in ordinary language and not afflicted with the weakness of ambiguity. In the two instances where the testatrix refers to the primary remainderman, she describes that class as surviving “ children ” only. There is no interchangeable use made of the terms “ children ” and “issue.” Nor does the general distributive scheme disclose a testamentary purpose to benefit children of predeceased immediate offspring together with surviving immediate offspring of the life tenants. Moreover, the use by the testatrix of the terms “ granddaughter ” and “ granddaughters ” in paragraphs Fifth and Sixth denies force to the claim that when she said “ children ” she also meant to include certain grandchildren. There is nothing in this will to support the position of the respondent Jane T. Mann unless, as she strenuously argues, the presence of the gift over to collaterals in the event of a total failure of “ children ” is a sufficient indication of an intention to enlarge upon the primary meaning of the word “ children.”

The testatrix provided that ‘ ‘ in case no children survive him, or his wife [the life beneficiaries], I will and direct that the said property be distributed between the children of my nephew, R. F. Graves.” This provision, contends the respondent, is sufficient indication that the testatrix intended to give the word “ children ” a broader meaning than immediate offspring. The argument is made that if the testatrix intended “ children ” to mean only immediate offspring then, in the event of a total failure thereof, the whole of the remainder would go to collaterals to the exclusion of direct descendants of the testatrix. We are told that this could not have been the intent of the testatrix, and that, therefore, the word “children” must be held to include Jane T., the daughter of a deceased immediate child of the life tenants. Great reliance is placed upon the presumption against disinheritance of descendants in favor of collaterals, particularly as expressed in the case of Prowitt v. Rodman (37 N. Y. 42). However, we are not persuaded either by respondent Jane T. Mann’s reasoning or by the authority cited in support thereof. It is of no moment what the intent of the testatrix would have been, or what would have been presumed concerning it, in the event there were no surviving immediate offspring. The controlling fact is that the life tenants' were survived by an immediate child, the appellant. That the testatrix might have intended to prefer great-grandchildren over collaterals does not at all lead to the conclusion that she intended to benefit a great-grandchild equally with her grandchild. The gift over to ■ collaterals here is inoperative, and, therefore, the presumption against disinheritance is not called into effect. Moreover, the presumption against disinheritance is- a mere rule of construction and, as is true of all such rules, may not properly be invoked or applied except where some ambiguity or lack of clarity requires its application for the purpose of resolving a doubt otherwise introduced by the terms of the will (Goodwin v. Coddington, 154 N. Y. 283, 286; Matter of Keogh, supra, p. 289). As we wrote in Matter of Bisconti (306 N. Y. 442, 445): “The application of the rules of construction of wills is for the purpose of determining the intent of the testator where that intent is not clearly expressed by the testamentary words, and the rules of construction are to be disregarded when the language is clear and definite. It is well established that rules of construction are merely subsidiary aids. (Matter of Watson, 262 N. Y. 284, 293, 294.) If intention of á will-maker is to be found in the words Used in the will and these are clear and definite there is no power -to change them (Matter of Watson, supra). As is stated "in Davids on the New York Law of Wills:'1 When intention can be ascertained as a fact from the instrument itself * * * ' there is no occasion for a presumption in respect thereof, and the decision should hot be affected by the rules in question. Hence the rules of construction are to be disregarded where the decedent’s intention is clearly or sufficiently manifest, or where the language of the instrument is plain and its meaning obvious;’ ' (Vol. I, § 491, p. 805; see Matter of Rollins, 271 App. Div. 982, affd. 297 N. Y. 612.) ” There is nothing unclear or ambiguous-here as to. who is entitled to take the remainder. The testatrix has given it to the surviving “ children” of the life beneficiaries, and both under the law and the terms of this will “ children ” means immediate offspring.

The case of Prowitt v. Rodman (supra) does not dictate a different result. In that case this court said: “ In the case of a contingent future gift to the children of the first taker, followed by a limitation over, for want of such, the presumption is in favor of the first taker’s posterity to his remoter descendants in preference to the donee over ” (p. 58). However, in Prowitt there were no surviving immediate offspring of the first taker and the question was whether the property would go to remoter descendants of the life tenant or to her collaterals. Furthermore, in the Prowitt case the words “ children ” and “ issue ” were used interchangeably to refer to the same class, thereby resulting in a definite ambiguity as to the make-up of that class. Thus, in that case it was the uncertainty as to the class which required the application of a rule of construction, and the presumption against disinheritance was referred to because the question presented was whether collaterals should take pursuant to the substitutionary gift in preference to remote direct descendants. There was no suggestion whatever in the Prowitt case that the presence of a limitation over to collaterals per se warrants a broader construction of the word “children” than immediate offspring where there is otherwise no doubt that such is its significance. Soper v. Brown (136 N. Y. 244), also relied upon heavily by respondent Jane T. Mann, is concerned only with the meaning of the word “ issue ” and is not relevant here.

It may well be that in some cases the presence of a limitation over to collaterals may be a “ factor ” tending to indicate a testamentary intent to broaden the meaning of “children”. (Restatement, Property, § 285, comment f.) However, it is clear that the mere presence of such a provision does not in and of itself establish an “unmistakable” intent so to do in a case such as this, where there is otherwise not a fragment of a doubt; where there is a person in existence who answers the primary meaning and the gift over is inoperative; where other portions of the will support the primary meaning of the word; and where there is nothing so unreasonable or unjust about the disposition so as to create grave doubt that such was the intention of the testatrix.

The fact that the disposition made in this will may not be in complete accord with individual notions of 'equitable distribution is not sufficient to warrant the interference of the courts. It is well settled that “ Language should not be strained, nor words given an unusual meaning, in order to work out a result favorable to the issue of a deceased child. * * * ” (Matter of Truslow, 140 N. Y. 599, 605). Of course, if the language employed “is equally susceptible of one or another interpretation, we should, on every principle of right, and within the spirit of all the authorities, give it that which is most equitable and consonant with the dictates of justice.” (Matter of Paton, 111 N. Y. 480, 486.) However, as already mentioned, there is no ambiguity in this will which would allow a different interpretation from that which we have given it. The word ‘1 children ’ ’ is not, in itself, ambiguous. Indeed, it has a very common and definite meaning upon which attorneys and their clients are entitled to rely when drafting wills. “ Children” means immediate offspring, and we reiterate the rule of the Schaufele case (supra, p. 67) that it will never be held to include grandchildren “ unless the will as a whole shows that unmistakable intent.” Only by so holding will there be the stability and consistency so essential to the law of wills if it is to accomplish its function.

The order should be reversed, with costs to all parties appearing and filing briefs, payable out of the estate.

Desmond, J. (dissenting).

I would affirm here so as to conform this decision to the rule which is ancient in England and in America. .

In Prowitt v. Rodman (37 N. Y. 42) this court nearly a century ago reviewed the already numerous authorities on the question of interpreting the word “ children ” to include-grandchildren and made the statements, many times thereafter repeated in the New York cases, that the word “ children ” is a “‘very flexible expression’” (p. 55) and (p. 54, quoting Chancellor Kent) that “ ‘ Children as well as issue may stand in a collective sense for grandchildren, where the justice or reason of the case requires it.’ ” At page 58 in the Prowitt opinion our court set down in summary two propositions of law, both old in 1867 and both still in effect:

‘'1. That the term ‘ children ’ may include issue however remote, and will be held so to include whenever the reason of the thing demands it.
“2. In case of a contingent future gift to the children of a first taker, followed by a limitation over for want of such, the presumption is in favor of the first taker’s posterity to his remoter descendants in preference to the donee over.” Prowitt rule No. 2 describes a will just like the one we are here interpreting.

In Matter of Paton (111 N. Y. 480) the authorities were again reviewed. Again it was said that the word “ children ” is a flexible expression. Then the court set down the rule in this form (p. 486): “ That meaning should be preferred, when the reason of the thing sustains it, which permits the children of a deceased child to inherit.” (See similar language in Beebe v. Estabrook, 79 N. Y. 246, 251; Matter of Brown, 93 N. Y. 295, 298; Matter of Truslow, 140 N. Y. 599, 605.) Our law, past and present, on this subject is accurately stated in New York Law of Wills by Davids (Vol. 2, p. 1108) in terms which demand an affirmance here: 11 Where the will creates a life estate or trust, and gives the remainder or corpus to the children ’ of the life tenant or beneficiary the word will be held to include grandchildren, the immediate descendants having died during the lifetime of their parent ” (see Matter of Brown, 93 N. Y. 295, supra, and Smith v. Lawrence, 66 Hun 362). As Judge Batallo wrote in the Brown case (p. 300): “ It is not reasonable to impute to the testator the intention to exclude wholly from the inheritance, the descendants of either of his daughters ”.

It seems to me that “ reason and justice ” dictate that this Villalonga will be construed to mean that if either of the two grandchildren of testatrix should be dead when their second parent dies, the children of the deceased grandchild or grandchildren of testatrix should take. If this be not the meaning, then the testatrix was making a very unusual disposition in that, if one grandchild of hers should survive, that grandchild would get the whole estate to the exclusion of her sister’s children, and, if both her grandchildren should fail to survive their parents, their children would get nothing and the estate would go to grandnieces and grandnephews.

Of course, New York cases can be cited on either side of this question but the great majority of them apply the broader meaning. Quite a recent illustration is Matter of Blodgett (286 N. Y. 602) where we affirmed the determination of the lower courts that 11 children ’ ’ included grandchildren.

I suggest that from all these case taken together there emerge these rules or guides:

(1) That if it is in any way possible the courts, to achieve a reasonable result, construe ‘ children ’ ’ as including grandchildren. I realize that Matter of Schaufele (252 N. Y. 65, 67) says that there must be an “ unmistakable intent ’ ’ to include grandchildren but no other important case agrees to that, and even the Schaufele opinion itself (p. 67) quotes with approval the ancient Prowitt rule (supra) that grandchildren should be included ‘ ‘ when reason demands it ”;

(2) That while the word children ” is to be taken literally when the testator appears to be referring to his own living children as named individuals (see Matter of Barnes, 2 N Y 2d 787) the other construction is more appropriate when the “ children ” are children of his descendants so that he may be considered to be referring rather to a class or group than to individuals;

(3) That, since this is a construction question to be resolved according to reason and probable intent, we ordinarily affirm a not unreasonable construction adopted by the two courts below.

The order should be affirmed.

Judges Fuld, Froessel, Van Voorhis and Burke concur with Chief Judge Conway; Judge Desmond dissents in an opinion in which Judge Dye concurs.

Order reversed and matter remitted to the Surrogates’ Court for further proceedings in accordance with the opinion herein, with costs to all parties appearing separately and filing separate briefs payable out of the estate.  