In Re the Judicial Settlement of the Accounts of Paton

Gray, J. The question presented by tnese appeals is as to the construction to be given to the language in the ninth clause *484 of the will of John Kurst. The will was made in 1858 and the testator died in 1863. His wife survived him and died later in the same year. At his death there were living two sons ; a daughter, Julia, mentioned in the will, having died before testator at -the age of nine years. One of the sons, Charles, was married when his father made this will, and he died before his mother, leaving two sons, parties and appellants in this proceeding. The claimants to the fund in the trustee’s hands were John B. Kurst, who survived both of his parents, and the two grandsons of testator, sons of his deceased son Charles. John B. Kurst contended that he alone was entitled to the whole of the fund, and the surrogate sustained him- in that contention. The grandsons of testator claimed the right to share in the fund, either per capita or per stirpes, and the. General Term, reversing the surrogate, decided that they were entitled- between them to one-lialf of the fund. The ninth clause of the will reads as follows: “Ninth. — I order and direct that after the decease of my said wife, and my youngest child shall arrive at the age of twenty-one years, my executor hereinafter named, or such person or persons as may then legally represent my said estate and the interests of my said children, shall dispose of all such property as may then remain of my said estate within eighteen months thereafter, either at public auction or at private sale, as such executor, person or persons may in his or their judgment deem most advantageous and beneficial to my children, and out of the proceeds thereof, after first deducting all necessary expenses, divide the same, together with all other property belonging to my estate, equally among the children I may then have, or those who may he legally entitled thereto, excepting, however, from the above disposition of my said estate all my silver spoons, one pianoforte, which I now have, and the portraits of myself, my wife, and my mother, which spoons, pianoforte and portraits I hereby give, devise and bequeath to our daughter, Julia Kurst, her heirs and assigns, forever.” - 'The difficulty arises from the-language of the will in this clause, which speaks of a division of the proceeds of the sale *485 of the estate “ equally among the children I may then have, or those who may be legally entitled thereto.” The will is evidently not drawn by a hand skilled in the requirements of such an important instrument; but enough appears from its reading to satisfy us that what the testator meant to accomplish was, such a distribution of his property, as that not merely his immediate issue should be benefited, but also the issue of any of his sons and daughters who may have died before his widow. Certainly no words or provisions can be found in the instrument which preclude the issue of a son or daughter from sharing in the testator’s estate; if we can give to the word “ children,” as used, or as understood in the use of the word “those,” in this clause, that more comprehensive sense, which will include issue however remote. As Judge Story said, in the case of PwrTcman, v. Bowdoin (1 Sumner, 368), where he reviews a number of authorities from an early date: “ Although in its primary sense, the word ‘ childreri ’ is a descrijptio personarunn who are to take, there is not the slightest difficulty in giving it the other sense, when the structure of the devise requires it.” By reference to the fourth clause of the will, we find the provision that in the event of the marriage of testator’s wife, his estate is to “ descend to the children we now have, or may hereafter have, according to the laws of the state of ¡New York, subject,” etc. In the eleventh clause is contained a provision “that if either one of my said children, or any person or persons who may succeed to the interest of them, or either, shall in any way or manner interfere with the due and proper execution of any one of the provisions of this my last will * * * by commencing legal proceedings in relation thereto, such child or children, person or person, shall forfeit her, his or their share in my said estate, and such share or shares shall be added to the shares of such child, children or persons as shall not interfere with the same, and to be equally divided among the persons last-named, share and share alike.” We think that these provisions indicate the understanding of the testator that his sons and daughters might not be living *486 at the time of distribution, and that an intention is deducible that the issue of a deceased son or daughter should share in the proceeds of the estate, upon the sale ordered by him after the decease of his wife. It is the province of the court, in the construction of a testamentary disposition of property, to effectuate the intention of the testator by giving that direction to the fund which, with all the light that may be cast upon the matter by the proofs, and from a fair reading and a reasonable interpretation of the writing, in all its parts, seems just. We may not make a will for him, nor thwart his manifest purpose; but if the will before us 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 Avhich is most equitable and consonant with the dictates of justice. In the Matter of Estate of Brown (93 N. Y. 295), where the question was Avhether the testamentary provision cut off the issue of a son of a deceased daughter, where the testator had given to each of his daughters a life estate in his property “with remainder over to their respective children,” Bapallo, J., said, if the language of the clause “ is capable of any construction which would permit the issue of the deceased son to participate in the remainder limited upon his mother’s life estate, that construction should, on well settled principles, be adopted in preference to one which should exclude them.” Chancellor Kent says, in his Commentaries (vol. 4, p. 419n): “ Children, as well as issue, may stand, in a collective sense, for grandchildren, where the justice or reason of the case requires it.” The word “ children ” is a flexible expression, and we think that meaning should be preferred, when the reason of the thing sustains it, which permits the children of a deceased child to inherit. (1 Jarman on Wills, 404; Earl of Tyrone v. Marquis of Waterford, 1 De Gex, F. & J. 613; Hodges v. Middleton, 2 Doug. 431; Doe v. Webber, 1 Barn. & Aid. 713; Prowitt v. Rodman, 37 N. Y. 42; Scott v. Guernsey, 48 id. 106; Low v. Harmony, 72 id. 408.) *487 In determining, in a given case, the meaning to be attached to the expression in a will of “ children,” we may resort to the context to see if the testator has, by his nse of language, or by other provisions of the will, made it a flexible term, or whether its primary meaning attaches strictly. The other clauses, which we have quoted from, would be sufficient warrant to give to the clauses under consideration the wider and juster sense, which will include the children of a deceased son or daughter as participants in the fund arising from the sale of the estate. It seems to us that the word “ or,” in the sentence in question here, implies a substitution, in case of the predecease of sons or daughters, of their surviving children. When the testator directs a division “equally among the children he may then have, or those who may be legally entitled thereto,” he must be regarded as contemplating the possibility of there being other children entitled to share than his immediate offspring. The word “ those ” must refer to children, in order to have a meaning, and refers to the children or issue of his sons and daughters. By the force of these provisions, the issue of a deceased child of testator is substituted for the child, and that share in the estate would be distributed among such issue per stirpes. Thus, when we consider the testator’s intention as to the future distributees of his estate, with the aid of the context and with the interpretation furnished by him in the provisions of other clauses, there seems to exist no doubt that the children of his deceased son are comprehended in his scheme for the division. As to the claim of the widow of the deceased son of testator to share in the proceeds, we agree with -the General Term that she had none. These grandchildren derived their right to the fund under testator’s will and not through their deceased father. On the proceeding before the surrogate the claim of John B. Kurst, as administrator with the will annexed, to commissions was rejected. The ground of the rejection was that the accounting was by Patón as the trustee appointed to carry the mil into effect upon the death of the testator’s *488 wife, and related to the proceeds of the sale made by him of the real estate, and the question of the • right of the administrator to commissions was reserved, until his accounting as such administrator. We are unable to find any basis for his claim for commissions in this record,-and there is nothing for ns to . pass upon in that respect. That must be the subject of any further proceedings below. The judgment of the General Term should be affirmed and the matter remitted to the Surrogate’s Court to be proceeded with in conformity therewith. Under the circumstances no costs of the appeal are allowed. All concur. Judgment accordingly.