In re Potter's Estate

• Decision Date: 16 January 1894
• Citation: 35 N.E. 955,140 N.Y. 599
• Parties: In re POTTER'S ESTATE. In re TRUSLOW et al.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 599

35 N.E. 955

In re POTTER'S ESTATE.

In re TRUSLOW et al.

Court of Appeals of New York.

Jan. 16, 1894.

Appeal from supreme court, general term, second department.

In the matter of the settlement of the account of James L. Truslow and Gilbert Potter, surviving executors and trustees under the will of Gilbert Potter, deceased. Appeal of Josephine Canfield and Anna Beard from a judgment of the general term (24 N. Y. Supp. 586) reversing the surrogate's decree. Modified.

The other facts fully appear in the following statement by GRAY, J.:

Gilbert Potter died in Brooklyn, in 1883, leaving a widow, two daughters, named Mrs. Beard and Mrs. Curtis, and a son, named Gilbert. Mrs. Beard had two children, who were testator's only grandchildren. By his will, he devised his residence, and certain land connected therewith, to his executors, in trust to apply the net rents and income therefrom, or if, in the exercise of their discretion, and with his wife's consent, they should sell the same, then the income of the invested proceeds of the sale, to the use of his wife for life. After her death the said real estate, or the proceeds thereof, were to form a part of the residue of his estate, and to be held under the same trusts. All the rest of the estate, real and personal, his executors were directed to turn into money. Thereof they were to invest the sum of $120,000, and to apply the income to the use of the widow for her natural life. The remainder they were to divide into three parts or shares, and they were to hold one for each of the children, and to apply its income to the use of the child during his or her life. Then follow the testamentary provisions which call for construction and application, because of events happening after the testator's death: ‘And upon the further trust, at the decease of my said wife, to divide the aforesaid sum one hundred and twenty thousand dollars into three equal parts or shares, and designate and set apart one for the use of each of my three children, and apply the income arising from each to the use of the child for whom it shall have been designated during his or her natural life. Upon the death of either of my children leaving issue, I authorize, empower, and direct my executors and trustees to pay to such issue equally the capital of the share held by them in trust for the use of the parent so dying; but, if either of my said children shall die and leave no issued surviving them, I direct my said executors to pay, divide, and distribute the capital of the share held for the use of the one so dying, to and among my surviving children equally. If at my decease, or at the decease of my wife, either of my children shall have died leaving issue surviving me or surviving my wife, I direct my executors to pay, divide, and distribute to and among such issue, equally, the share which would have been set apart for the use of the parent if he or she had survived me or had survived my wife, such payments and distribution to be made by my executors and trustees to and among such issue as and when they respectively attain the age of twenty-one years; but if either of my children shall die before me, leaving no issue surviving me, then I direct my executors to divide the residue of my estate into two equal shares, and designate one for the use of each of my surviving children, and hold the same upon the trusts hereinbefore created and declared, unless,’ etc. First, after testator's death, died Mrs. Beard, leaving two children, and next died Mrs. Curtis, leaving no child. When the testator's widow died, subsequently, there survived her, of testator's descendants, his son, Gilbert, and two grandchildren, the issue of his daughter Mrs. Beard. The surrogate, in construing this will, held that the grandchildren were not limited to the shares appointed for their mother in the testator's estate, but took one-half of the shares which were given and intended in trust for Mrs. Curtis therein. This view he entertained from regarding the word ‘children’ as including the issue of deceased children. The general term reversed his decree in that respect, and held that Gilbert took both shares appointed to Mrs. Curtis, as being testator's sole surviving child. The grandchildren are appellants to this court.

Charles W. Truslow, for appellants.

Jackson & Burr, (Joseph A. Burr, Jr., of counsel,) for respondents.

GRAY, J., (after stating the facts.)

I quite agree with the general term justices that the word ‘children’ is used in this will in its primary signification. It is very clear that the testator thus refers to his immediate descendants, and not to grandchildren. When he has remote descendants in view, he refers to them through the use of the word ‘issue.’ It is undoubtedly true that the term ‘children’ may include ‘grandchildren;’ but to give to it that very comprehensive meaning we should be able to find such an intention on the testator's part from other expressions or clauses in the will. I am not aware of any case in which the term ‘children’ has been given a broader signification that it naturally imports, except there was something in the will which called for and justified it. In this will, wherever a reference is made to other descendants than the testator's immediate offspring, they are spoken of as the ‘issue,’ or the ‘lawful issue,’ of his children, and in one notable instance-in the seventh clause-the testator makes a certain disposition of his estate ‘in case of the death of my wife and all my children and their descendants before me.’ That emphasizes his understanding of the term ‘children,’ as excluding such remote descendants as grandchildren. Therefore, in directing his trustees, ‘if either of his said children shall die, and leave no issue surviving them * * * to pay * * * the capital of the share held for the use of the one so dying, to and among my surviving children equally,’ the testator meant his immediate descendants, and the application of that language to the case of Mrs....