Wallace v. . Diehl

Cullen, Ch. J. I concur in the opinion of my brother Collin, save in one respect. The courts below have held that the power of appointment given in the eleventh clause of the testatrix’s will to Mrs. Wallace “to give, devise and bequeath upon her death by Last Will and Testament duly executed, to such of my heirs as she may prefer,” may be exercised in favor of any issue or descendant of the testator. I can find no authority in the decided cases for the extension of the term “heir” to include issue or descendants who are not heirs. Not one of the authorities cited in support of that contention, in my opinion, sustains it. Before entering on a review of the cases the distinction must be borne in mind between two radically different propositions: First, that in the case of a devise to “heirs” upon the death of a life tenant, and especially in the case of a gift over upon death without heirs, the term “heirs” may be confined to such heirs as are issue or descendants; in other words, to heirs of the body. Second, the proposition which it is necessary to maintain to support the decisions below, that the term “ heirs ” may include all descendants, however remote, though not heirs because their parents or ancestors are still living. This second proposition, as I have *159 said, I can find no authority to sustain. Now, to refer to the cases cited by my brother. Matter of Cramer (170 N. Y. 271) is authority for the first proposition, not the second. In that case the word “heirs” was limited to heirs of the body and death without heirs construed as a gift over without heirs who were descendants or heirs of the body. Snider v. Snider (160 N. Y. 151) decides exactly the same proposition. Johnson v. Brasington (156 N. Y. 181) the same. So with Kiah v. Grenier (56 N. Y. 220). In Heath v. Hewitt (127 N. Y. 166), which was the case, of a gift to the heirs of a living person, Judge Parker, writing for the court, said the derise was to the children, but this was not because the word “heirs” could be construed as meaning children, but because it was the children which happened in that case to be the persons who would have been the heirs of the living person had he died at that time. This plainly appears, because the case was decided on the authority of Heard v. Horton (1 Denio, 165), where the general rule is stated that “a devise to the heirs of one who is stated in the will to be living is a valid disposition in favor of those who would be his heirs if he should then die.” Livingston v. Greene (52 N. Y. 118) seems to have no application to the case before us. In Thurber v. Chambers (66 N. Y. 42) the term “heirs” was construed in its legal meaning so as to include all persons entitled to succeed in case of intestacy. So the decision has no bearing on the question before us. But Judge Church does remark in his opinion: “The word ‘heirs’ will, however, be construed to mean children when, from the whole will, such appears to have been the intention of the testator (53 N. Y. 233, 238; 38 id. 110).” (p. 17.) A reference to the two cases Judge Church cites plainly indicates his meaning that the term “heirs” will be limited to children or other issue and not extended to heirs generally. Scott v. Guernsey (48 N. Y. 106) is precisely to the same effect and in the opinion it is said: “ The testator has used *160 the word ‘ heirs ’ in the sense of children.” Mow, such a statement was correct, though possibly misleading, because in that case children were the heirs. Without discussing the provisions of the will at length I can simply say I cannot find any indication of a desire of the testatrix to pass over the nearest in line of her descendants or heirs in favor of more remote issue who might not be born till a generation after she was in her grave. Certainly there is no such clear indication as would warrant us in departing from the proper meaning of the word “ heirs.” But I am of opinion that the heirs of the testatrix were to be ascertained not at her death, but at the death of the life tenant, to whom she gave the power of appointment. It should be conceded that the general rule is that a gift to a testator’s heirs, though after the death of a life tenant, is a gift to those who were the testator’s heirs at law at the time of his decease. But the will may disclose an intention that they are to be ascertained at a different period. In some of the cases cited as requiring a class to be ascertained at the death of the testator, the language is too plain' to admit of discussion. In Delaney v. McCormack (88 N. Y. 174) the provision was “to distribute the proceeds thereof amongst my next of kin as personal estate, according to the laws of the State of Mew York for the distribution of intestate personal estate.” There the language of the will was imperative. There appears to have been no claim that the next of kin should have been ascertained at a later period. In Wadsworth v. Murray (161 N. Y. 274) the provision was that the property should “ descend to and vest in my heirs at law in the same manner that it would have descended to and vested in them if this will had not been made.” (p. 282.) Of course, if the will had not been made the property would have passed as in case of intestacy. The general rqle is stated in 2 Jarman on Wills (6th ed. p. 981, note 1): “Prima facie the next of kin at the death of the *161 testator are meant; and the indication should be clear to overcome the presumption.” But in several cases indications have been held sufficiently clear to show that the testator meant the class to be ascertained at the death of a life tenant or of a primary devisee. Such cases are Wood v. Bullard (151 Mass. 324); Welch v. Brimmer (169 Mass. 204), and Matter of Bowers (109 App. Div. 566; affd., on op. below, 184 N. Y. 574). It must be borne in mind that in the case before us there is no present gift of the property, the subject of the eleventh clause, to the heirs of the testatrix. They take solely by the exercise of the power of appointment dependent entirely on the favor of the life tenant, who might give all to one and exclude the rest. It was not a gift to a class, but the designation of a class among which the life tenant was to exercise her .favor. It is in this respect that I think the case before us is to be distinguished from an ordinary gift by the testatrix herself. There the class to be benefited would be known to the testator and take under the will as a recipient of the testator’s bounty, Here, though it was not the life tenant’s bounty, it was the life tenant’s favor to which any appointee would be indebted for what he might get. That favor was to be exercised by the life tenant at her decease and it seems to me that the class was to be ascertained at the same time. But there is one further consideration which is, to my mind, controlling. It is true that the life tenant has no children, but she might have had children after the testatrix’s death and, for aught we Imow, even after the present time. A construction of the will which would require the heirs of the testatrix to be ascertained at her death would preclude the life tenant from exercising the power of appointment over what may be not improperly termed her own share of her mother’s estate in favor of her own children. Certainly, this testatrix never intended this. I think the judgment of the Appellate Division and of *162 the Special Term should be, further modified so as to hold that the power of appointment given in the eleventh clause of the will must be exercised in favor of the heirs of the testator; such heirs, however, to be ascertained at the death of the life tenant and donee of the power.