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6 Thomp. & Cook 344

Bowne v. Underhill

New York Supreme Court

Decided March 15, 1875

New York Supreme Court · decided 1875-03-15

SUBMISSION of controversy without action, pursuant to section 372 of the Code. The. controversy was between Richard H. Bowne, substituted trustee under the will of Ann Haviland, deceased, and Phebe Jane Underhill and otlffers, legatees and devisees under said will.

Relies on Prowitt v. . Rodman

Decided 1875-03-15

Barrard, P. J.

¶1The children of Mary A. Underhill (Farquhar) should be adjudged to stand in the place of their mother.

¶2There is no appearance of an intent to exclude any who were of the blood of the parent. After the death of Phebe J. Underhill, these children do, like their mother, share by express words. Why exclude them from their mother’s share before that event happens ? *346The ease of Prowell v. Rodman, 37 N. Y. 42, is an express authority that children ” in this case includes grandchildren. Such a construction is demanded in this case by the whole scope and plan of the will.

¶3The judgment upon submitted case is that Mary A. Farquhar and Anna L. Farquhar take their mother’s share under the second clause of the will, and that they are included in the term “ children ” in that clause.

¶4' Ordered accordingly.

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