In Re the Accounting of the Farmers' Loan & Trust Co.

McLaughlin, J. Charles W. Durant died in 1885, leaving him surviving five children' and certain grandchildren. His wife predeceased him. He left a last will and testament and codicil thereto, which were admitted, to probate by the Surrogate’s Court of the county of New York, and letters testamentary issued to one of the executors therein named. By his will he gave his entire residuary estate to his executors' in trust to invest and keep invested during the life of his wife and to *44 annually pay to her the income therefrom up to a certain amount, and if it exceeded the amount named, then to divide such surplus equally among his five children. Upon the death of his wife he gave to each of his grandchildren- then living “ in remembrance of me ” one ■thousand dollars, and then directed that the balance of the residuary estate be divided into five equal parts, one of which he gave to each of his sons Charles, Frederick and Howard; one to the Union Trust Company of New York, in trust, to invest and keep invested and pay the income therefrom to his son Thomas during his natural life; and the remaining fifth part of said residuary estate he disposed of by the ninth clause, the construction of which is all that is here involved. This clause reads: “ Ninth. I give, devise and bequeath.one other fifth part of said rest, residue and remainder of my estate unto my son Frederick C. Durant in trust; to safely invest the same * * * and to apply the income thereof to the sole and separate use of my daughter Estelle, now the wife of Henry C. Bowers, during her natural life free from the debts and control of her husband, and upon the death of my said daughter leaving lawful issue her surviving, then to pay over to such issue the principal of such share so devised in trust to be equally divided between them.” The testator’s son Frederick, named as trustee in the clause quoted, renounced the appointment, and the Farmers Loan and Trust Company was; appointed trustee in his place. .' The daughter Estelle, described as the wife of Henry C. Bowers, became, after his death, the wife of John A. Weekes. She died in December, 1918, leaving her surviving five children, three by her first marriage and two by the second, and two grandchildren, sons of one of her daughters. After her death the Farmers Loan and Trust Company, as trustee of the trust created by the clause quoted, instituted a proceeding to have its *45 accounts judicially settled and to obtain a decree directing the manner of distribution of the trust fund among the persons entitled thereto. The citation was duly served upon all of the children of Mrs. Weekes and also upon her grandchildren, George Samuel Dearborn, 2d, and Henry Dearborn, Jr., both of whom were infants under the age of twenty-one years. Upon the return of the citation, the infants, by guardian, each claimed a one-seventh part of such trust fund upon the basis of an equal per capita distribution thereof among the seven persons constituting the “ issue ” of Mrs. Weekes living at the time of her death. The claim was contested by. the five children of Mrs. Weekes, each of them claiming a per stirpes distribution, or an equal one-fifth share of such estate, to the exclusion of the two grandchildren. The surrogate held that the word “ issue ” as used in the ninth clause of the will of the testator included only the five children of Mrs. Weekes and did not include her two grandchildren; and that the fund should be distributed equally among the five children, to the exclusion of the grandchildren. A decree of the Surrogate’s Court was entered to this effect, from which an appeal was taken to the Appellate Division by the guardian of the two infant grandchildren, and that court modified the decree appealed from (one of the justices dissenting) by holding that each of the grandchildren was entitled to share equally with the children of Mrs. Weekes in the distribution of the trust fund. From the determination thus made the children of Mrs. Weekes appealed to this court. I am of the opinion that the determination of the question presented by the appeal is controlled by our decisions in Matter of Farmers Loan & Trust Co. (213 N. Y. 168, 171) and Matter of Union Trust Co. (170 App. Div. 176, 178; affd., 219 N. Y. 537). In reaching this conclusion I have not overlooked the authorities cited by the respondent. *46 In' the Farmers Loan & Trust Co. case the provision of the will under consideration was: “ I give, devise and bequeath what would have been his or her share, if living, to his or her issue, if any, such issue to take equally what would have been the parent’s share.” The court held that the fair meaning of this provision was that the issue were to take by right of representation, and that the distribution should be made per stirpes and not per capita. In the Matter of Union Trust Co. case the provision of the will under consideration was: “ I give, devise an'd bequeath the share in my said real and personal estate theretofore held in trust for her in equal portions unto her then surviving issue, if any; or, if no such issu’e shall then survive, I direct that her said share shall be added to the share then held in trust for my other daughter, if she shall then survive; or, if not, then I give, devise and bequeath the same in equal portions to her issue, if any then surviving.” The question there presented for determination was whether a granddaughter whose mother was living was entitled to share in the estate. It was held that she was not; that a per stirpes division should be made instead of a per capita, as otherwise there would not be the equality of distribution which the testator intended. It is undoubtedly the general rule, as stated in Matter of Farmers Loan & Trust Co. (supra), that unless some other meaning is given to it by the context, the word “ issue ” is not confined to children, but includes descendants in any degree, and that there is a presumption favoring a per capita distribution. (Schmidt v. Jewett, 195 N. Y. 486; Bisson v. West Shore R. R. Co., 143 N. Y. 125.) This presumption, however, yields to “ a very faint glimpse of a different intention.” (Ferrer v. Pyne, 81 N. Y. 281; Vincent v. Newhouse, 83 N. Y. 505.) Here there is sufficient evidence not only to overcome the presumption, but to indicate that the testator intended a per stirpes and not a per capita distribution. Such *47 intention is shown by the frequent use of the words “ to be equally divided between them; ” “ equally to be divided between them; ” or “in equal shares.” These words, or some of them, are used in the third, eighth, ninth, tenth, fifteenth and sixteenth paragraphs of the will, and also in the codicil. Equality of distribution was the dominant thing in the testator’s mind. Thus, he provided for equality among his children in the division of the surplus income; in the corpus of his estate not only in the primary gift of one-fifth to each, but in the alternative gift in case the primary gift to any child failed to take effect; in the gift to his grandchildren; and in the direction for distribution of the corpus of the trust estate created by the ninth clause of his will for the benefit of the daughter Estelle. It is true there was a discrimination in respect to the children of the son Thomas, but this in no way obscures the testator’s intent as to the disposition which he desired to make of his estate, which was one of equality. This intent would be defeated by a construction which would permit great grandchildren to share in the fund, their parent being still alive. It would produce not equality, but just the contrary. It would give Mrs. Dearborn and her two children one share each, or three-sevenths of the estate, while her brothers and sisters would receive four-sevenths, or one share each. A case in many respects much like the present one is Dexter v. Inches (147 Mass. 324). There, a testator gave his estate in equal shares to eight children and provided that in case of the decease of either leaving issue before receiving a share, “ such issue shall represent and take the parent’s share.” Seven of the children were to take their shares outright, but the share of one son was put in trust, such share to go at his decease, if he left no widow, to his “ issue.” The son died leaving no widow, but leaving three children and also grandchildren. It was held that the gift “ to issue ” after the *48 death of the son, though not stated to be to them by right of representation, must be held to have the same meaning as the gift to “ issue ” where the son died before the testator, and hence that the issue took per stirpes. Holmes, J., who delivered the opinion of the court, said: “ Undoubtedly ‘ issue ’ may mean,' and in this clause does mean, more than children. If one child of Charles had died at any time leaving children living at Charles’ death, we. will assume that they would not have been excluded. * * * The issue of Charles would have taken by way of representation in one event. If Charles had' died ‘before the receipt of his share ’ his issue would have ‘ represented ’ him by the words of the will. There is no reason for issue (the same word) taking the same sum otherwise than by way of representation in the other event, which has happened. If the context of the clause which we have to construe does not, of itself, show clearly in what sense the testator used the word, the alternative limitation makes it plain. We are of opinion , that the word ‘ issue ’ as here used means descendants, taking by way of representation.” The clause of the will here under consideration should receive a similar construction. The per capita rule to which reference has already been made must give way to the manifest intent of the testator. The order of the Appellate Division, so far as appealed from, should be reversed, and the decree of the Surrogate’s Court' affirmed, with costs to appellants payable out of the estate.