majority">Ingraham, J.

I think it may fairly be said that the rules to be applied in determining the meaning of the testator when he used the word “ issue ” in his will have been settled in this state by the case of Drake v. Drake, 134 N. Y. 223, and the case of Soper v. Brown, 49 N. Y. St. Repr. 206. The sole question, therefore, is to determine, according to these rules, the intention of the testator in using the word in his will.

The primary meaning to be. given to the word is that of descendants generally. Thus, as was said in Palmer v. Horn, 84 N. Y. 519: “In England, at an early day, it was held in its primary sense, when not restrained by the context, to be coextensive and synonymous with descendants, comprehending objects of every degree.” And it follows that this meaning will be given to the word, unless it appears from the will itself, or from the surrounding circumstances, that the testator used it in some other sense.

It appears, however, that (Soper v. Brown, 49 N. Y. St. Repr. 206) to give the word “ issue ” this meaning would often defeat the express intention of the testator, and hence the courts held that where it appeared that the testator intended the word to be used in another sense, such meaning was given to the word as would carry out the testator’s intention. And thus in Palmer v. Horn, 84 N. Y. 519, it was held from the context that the testator intended the word to be synonymous with children, and limited its meaning in that case to children.

It appeared, however, that in many cases the word was used not as meaning descendants generally or limiting it strictly to children, but was used as synonymous with hems at law, and this is expressed by Van Brunt, P. J., in delivering the opinion of the court in Drake v. Drake, 56 Hun, 595, *196where he says : “ It is undoubtedly true that where there is a gift or devise by will after the determination of the life estate to A. B., and in case of his death, before the death of the life tenant, to his lawful issue living at such death, if A. B. died before the determination of the life estate leaving issue, and such issue at the death of the life should consist of children and grandchildren whose parents were living, in the absence of circumstances showing a different intent, it would be held that the testator meant that the issue of A. B. should take by representation and not as a class. This has become the accepted rule of interpretation’ because experience has shown that this construction, in most instances, best accords with the intention of the testator, and that it is only under very peculiar circumstances that the testator desires that a parent and child shall take at the same time as belonging to the same class, and that such circumstance inducing to such intent, when it exists, can almost always be found evidenced by the will itself or by the surroundings of the testator.”

There is no evidence of any fact, outside of the language Used in the will itself, that would enable the court to determine the intention of the testator, and it follows that the meaning that the testator intended to be given to this word must be ascertained from the language used in the will.

I am unable to see any evidence that would justify a finding that the testator intended to limit the meaning of the word tc that of children.

The will was dated on the 30th of March, 1825, and the testator died September 9, 1825. By the fifth clause of the will he provides as follows:

“ It. is my will that the real estate situated in the city and county of ííew York, whereof I may die seized or possessed, shall be kept entire, and no part thereof sold during the natural lives of my children and the natural life of the longest liver of them, and until the youngest person among such of the issue of my said children, or any of them, who shall be liv, ing at the death of said longest liver, or shall be born in due *197time afterwards, shall come to the age of twenty-one years ; with this intent and to effect this purpose, I do devise the said estate unto my executors, their heirs or assigns, as joint tenants for the said term in trust to receive the rents, issues and profits thereof, and to apply the same in the following manner, viz.: ”

It was the clearly-expressed intention of the testator by this clause that neither of his children should obtain the possession of any portion of this real estate; that the real estate should not be divided until after the death of the last child; and it clearly appears that he intended that his estate should necessarily be divided immediately upon the death of the surviving child, for he provides that the trust estate should continue until the youngest person among such of the issue of his said children who should be living at the death of the longest liver of his children should become of age.

This clause, standing alone, would not indicate that he intended to give any meaning to the word “issue,” except the primary legal meaning, which would include all of the descendants of his children living at the death of the longest liver of his children.

Does the devise over indicate any intention as to the duration of the trust estate ?

After directing certain specific payments to be made out of the income received by the trustees, the will provides that the residue of the rents, issues and profits are to be distributed “ in equal parts among my children then living and the lawful issue of such of my children as may then die leaving lawful issues, such issue to receive such share only as the parent of such issue then living would be entitled to receive.”

It is clear that the testator here intends that the issue of a deceased child should take by way of representation, and thus, in case of the death of one of his children during the continuance of the trust, the person who would inherit from such deceased child would be entitled to the income during the continuance of the trust.

Thus, if one child died, leaving him surviving a child and a *198grandchild, whose parent was dead, the child would take one-half of the income that had theretofore been paid to the parent and the grandchild the other half.

The meaning thus given to the word “ issue ” in this paragraph would be synonymous with that of heirs at law, and not with child or descendants generally.

The clause then proceeds to dispose of the remainder of the real estate, after the termination of the trust, as follows :

“ And after the expiration of the term for which my said lands are above devised to my executors, in trust, I do then devise the real estate whereof I may die seized or possessed in the city and county of ISTew York, to my lawful grandchildren and the lawful issue of such grandchildren, such grandchildren and their lawful issue to take said estate in like manner in every respect as if it had been the estate of the respective, parents of such grandchildren as tenants in common and had descended to them and their lawful issue by inheritance.”

Here, again, the testator indicates the meaning with which he uses the words “ lawful issue.” It is not as children of the grandchildren, but those who would be entitled to inherit from each grandchild upon his death, who is to take the share of the grandchild dying, so that in the event before referred to, upon the death of the grandchild of the testator leaving a child and the child of the child whose parent was dead, the child would take one moiety of his parent’s share and the grandchild take the other moiety.

Here we have, I think, an indication of the meaning which the testator desired to give to the word “issue” in the clause in question. He intended that the .estate should not he divided until the death of the longest liver of his children. He also intended that the estate should not be divided during the minority of any one of the descendants of his children, who, upon the death of the longest liver of his children, would he entitled to a share of the estate.

And so he provided that the estate should not he divided, and the trust estate should not terminate until the death of *199the longest liver of his children and the arrival at age of anyone of the descendants of his children who would be entitled to a share in his estate.

This being the clear meaning intended by the testator when he used the word “ issue ” in the portion which related to the disposition of the income during the continuance of the trust, estate, and to the disposition of the remainder over upon the termination of the trust estate, I think a case is presented for the application of the rule applied in Palmer v. Horn, 84 N. Y. 516-519, and cases there cited, where the meaning to be given to the word “ issue ” was to be controlled by the meaning given to the word in the context, it appearing in that case that the testatrix had interpreted the word “ issue ” by the context as meaning children.

The clause related to the disposition of the testator’s real estate in the city of Rew York; one subdivision of the clause fixed the duration of the trust estate, and the other subdivision of the clause pi-ovided for the disposition of the income of the trust estate during its continuance, and for a disposition of the property itself after the termination of the trust.

Thus in one subdivision of the clause there is no evidence as to the sense in which he used the word, but in the second subdivision of the clause it is clear that the word was used in a representative or substitutional sense, and thus applying the principle before stated that “ words used by the testator in his will are to be interpreted in the sense that he attributes to them, when it appears by the context that they are not used in the strict legal sense.” Soper v. Brown, 49 N. Y. St. Repr. 206.

Ro reason is apparent why the testator should give the word a different meaning in the first subdivision of the clause from that given to it in the last, and, taking the whole clause together, I think that the word “ issue,” as used in the subdivision limiting the duration of the trust, should be given the same meaning that is given in the subdivision which applies to the disposition of the income during the continuance of the trust and the final disposition of the property upon the termina*200tion of the tsust, and thus the trust estate terminated upon the death of the longest liver of his children, and the arrival at the age of twenty-one of any descendant of his children who would he entitled to a share of the estate upon the death of the surviving child.

I am aware that the plaintiff in this action is entitled to a marketable title free from reasonable doubt, but as this is a pure question of law arising upon the construction of a will, “ and where the transaction is one between parties, the question is simply whether the legal title to the land, notwithstanding the objection, is good in the vendor and will pass by his conveyance to the purchaser,” and there is no dispute ■ as to facts, and the soundness of the title depends upon the decision of the question discussed, which is, purely one of law, the court should determine such question. See Holly v. Hirsch, 49 N. Y. St. Repr. 14.

I think, therefore, that the defendant is entitled to judgment for a specific performance of the contract as prayed for. Decision and judgment to be settled on notice.

Judgment accordingly.

Citation profile

Relationships

How this case has been treated — in progress