Parant's Will, In re

• Decision Date: 27 May 1963
• Citation: 39 Misc.2d 285,240 N.Y.S.2d 558
• Court: New York Surrogate Court
• Parties: In re PARANT'S WILL. Application of Mary Esther Cronkhite WOODWARD, for a determination as to the validity, construction or effect of the disposition of property contained in the last Will and Testament of Helen C. Parant, Deceased. Surrogate's Court, Washington County

Page 558

240 N.Y.S.2d 558

39 Misc.2d 285

In re PARANT'S WILL.

Application of Mary Esther Cronkhite WOODWARD, for a

determination as to the validity, construction or effect of

the disposition of property contained in the last Will and

Testament of Helen C. Parant, Deceased.

Surrogate's Court, Washington County.

May 27, 1963.

Clark, Bartlett, Caffry & Dube, Glens Falls, for petitioner.

Edward F. Layden, Whitehall, as special guardian for infant respondents.

ROBERT W. BASCOM, Surrogate.

Clause Fifth of the will of Helen C. Parant, which was executed August 17, 1960 and admitted to probate May 29, 1962, reads as follows:

'I give, devise and bequeath all of my real property located on the Vaughn Corners Road in the Town of Kingsbury, New York and the contents of the house and barn, excepting the above bequeathed articles mentioned in the Fourth clause of this will, to my niece MARY ESTHER CRONKHITE WOODWARD and to her children.'

Both on the date of the execution of the will and on the date of death of the testatrix, Mrs. Woodward had two living children.

A determination is sought as to whether the quoted clause vested a fee simple absolute in the named legatee or whether any interest was vested in her children, and if so, the nature of the respective estates and the respective proportions in which Mrs. Woodward and her children share. There appears to be a paucity of law on the subject in this jurisdiction and the precise question, as far as the interpretation of a devise and bequest to a named person and her children is concerned, seems not to have been entertained by the courts of this state for a hundred twenty years.

Three possible interpretations of this particular language are suggested, namely (a) that Mary Esther Cronkhite Woodward takes a fee simple absolute to the exclusion of her children, either on the theory that the words 'and to her children' are words of limitation, or that the word 'or' was intended for the word 'and' and that the gift to the children was substitutional; (b) that Mrs. Woodward takes a life estate with remainder on her death to her children, as similar devises or grants have been interpreted in other jurisdictions, notably Pennsylvania; and (c) that Mrs. Woodward and her two children are tenants in common, each having an undivided one-third interest in the property.

We must collect the intent of the testatrix from within the four corners of the will, if the document as a whole reveals this intent. We must not confuse intention with meaning (Sams v. Garlick, 14 M. & W. 698, 701). Although perhaps susceptible of differing interpretations, the words under consideration are not ambiguous in and of themselves. If they have or have acquired a technical meaning in the field of devises, grants or bequests, we must apply that meaning unless we discern a different design of the testatrix from the whole document.

In support of her contention that she takes an absolute fee, to the exclusion of her children, petitioner contends that the word 'and' was intended to be 'or' and was inadvertently used by the draftsman, with the result that the gift to the children was meant to be substitutional in the event of Mrs. Woodward's predeceasing testatrix. To bolster her contention of inadvertence, she points to the residuary clause which follows the one in question, where the residue is given to Mrs. Woodward and to two other named persons, in equal shares, and provides that in the event of Mrs. Woodward's prior death, her share is given and bequeathed to her children in equal shares; that having demonstrated her ability to create a substitutional gift of the residue, it is improbable the testatrix intended other than that in devising real estate in such a manner that it would be held by an unknown number of infant co-owners, thereby rendering the title inalienable except by order of court. The argument, though plausible, is not elevated to the plane of conviction. To conclude that simply because testatrix made a substitutional or alternative gift in the residuary clause, she must have intended a like gift in another clause, is purely speculative and capricious. When a testator in one part of his will demonstrates his ability to make a certain variety of gift by apt terms, the use of a different mode of expression in another direction raises the inference that he had a diverse disposition in mind (Matter of Corlie's Will, 150 Misc. 596, 599, 269 N.Y.S. 890, 894).

There being nothing else in the will from which to glean an indication of testatrix' intent, and the will having been prepared by an experienced draftsman, we must take the words 'and to her children' as we find them and give to them 'their usual and accepted meanings without enlargement and without restriction * * * and when particular or technical terms are used, particular or technical interpretation or construction follows as of course, in the absence of all clear intent to the contrary' (Matter of Barrett's Estate, 141 Misc. 637, 638-639, 253 N.Y.S. 658, 660, 661; Graves v. Deterling, 120 N.Y. 447, 457, 24 N.E. 655, 657).

In its usual and commonly accepted meaning 'and' is a connective, while 'or' is a disjunctive. 'And' is not correctly or generally used to express an alternative, unless followed by words which clearly indicate that intent. 'Or' is correctly and generally used for that purpose (Matter of Barrett's Estate, supra, 141 Misc. p. 640, 253 N.Y.S. p. 663). As the court said in the last cited case (p. 641): 'It seems to me that it must be assumed that an experienced lawyer would have used the word 'or' rather than the word 'and' to express a gift intended to be in the alternative, and that, having made use of the word 'and,' he would have added thereto words clearly indicating that it was intended to be used in the alternative sense if that was the testator's intention. There were no such words added here.' We must therefore reject the theory that an alternative or substitutional gift to the children was intended.

The word 'children' in its primary and natural sense is always a word of purchase and not of limitation (Chrystie v. Rhyfe, 19 N.Y. 344; Schoonmaker v. Sheely, 3 Denio 485, 490; Tayloe v. Gould, 10 Barb. 388; Re Sanders, 4 Paige 293; Edwards v. Bates, 79 Ind.App. 578, 139 N.E. 192; Armstrong v. Moran, 1 Bradf. 314; Williams v. J. C. Armiger & Bro., 129 Md. 222, 98 A. 542). As used in a will, 'children' is a word of personal description. It points to individual acquisition. It is limited to persons standing in the same relations and has the same effect as if all the names had been given (Rowley v. Currie, 94 N.J.Eq. 606, 120 A. 653; Balcom v. Haynes, 96 Mass. (14 Allen) 204). It is not a word of limitation. It does not point to hereditable succession. It is employed in contradistinction to the term 'issue' (Crawford v. Forest Oil Co., 3 Cir., 77 F. 534, aff'd. 77 F. 106). As was said by the Court of Appeals in Chrystie v. Phyfe (p. 354): 'There is one class of cases, and one only, in which the term 'children' is considered as a word of limitation; that is, where there is a present devise to one and his children, when he has no children at the time. There if the word 'children' should be interpreted as words of purchase, future children could not take at all, and in order that the will of the testator may operate favorably to them and not confine the gift to the parent for life, 'children' is then deemed a word of limitation.'

We conclude, therefore, that Mrs. Woodward and her children living at the death of testatrix (Campbell v. Rawdon, 18 N.Y. 412) all took some interest in the real and personal property devised and bequeathed by the clause of the will in question. It remains to determine their respective interests.

The only case in this state where the precise words here involved were interpreted, which the diligence of counsel or the research of the court has revealed, is Murphy v. Harvey, 4 Edw.Ch. 131, decided in 1843. In that case there was a bequest of all testator's estate to his two brothers and sister and their children, and in case of the death of either of them, to their heirs, to be equally divided among them who shall survive and the children and heirs of the deceased. Both the brothers and sister died before the testator, leaving children, and the Vice Chancellor said (p. 132): 'Under the will the two brothers and sister of the testator, had they survived him, and their children living at his death, would have taken in equal shares per capita; all faring alike in the division and distribution of the property--the word 'children' as used...