In re Accounting of Miller

Willard Bartlett, J.: The testamentary provisions which we are called upon to consider in this litigation relate to the disposition of the residuary estate of [214] Levin R. Marshall : (1) During the lifetime of the testator’s widow; (2) during the lifetime of the youngest of the testator’s children who was living at the time of the decease of the widow, and (3) upon the death of , such youngest child, when final distribution is directed to be made. Ro question as to the projier construction of the will appears to have arisen during the first of these periods. The bequests of $2,000 a year apiece were to the children who were named in the. will, or to the issue of any of such named children who might die during the lifetime of the testator or his widow. Six children were thus named. There had been another child of the testator’s marriage, Levin R. Marshal], Jr., the father of Dunbar, but he was dead at the time the will was made, and it contains no mention of him by name. Ro claim existed against the estate, therefore, on the part of Dunbar, the grandson, so long as the testator’s widow was alive. ■ The second period, however, began at the time of the death of the widow, on the 5th day of February, 1895, from which date the respondent Dunbar Marshall claims to be entitled to share in the income, and we agree with the learned surrogate and with the counsel for the respondent, that, the language of the will in relation to this period is by no means plain or easy of interpretation. After the death of the widow the trustees are directed, first, to reduce the estate into money or interest-bearing securities; secondly, to divide it “ into as many equal parts as I shall then have of my above children, or the lawful issue of any deceased child living; ” and, thirdly, “to pay over the income of one of such equal parts to each of my said children, or to its or their issue as aforesaid,” during the lifetime, of the youngest of the children who shall survive the testator or his widow. The phrase, “ my above children,’’ in the clause directing the separation of the estate into equal parts, plainly refers to the children previously named in the will, but no such limitation applies to. the subsequent clause, providing that' “the lawful issue of any deceased child ” is to be represented in the division. This .language is broad enough to include Dunbar Marshall, who is the lawful issue of Levin R. Marshall, Jr., a deceased child of the testator. The subsequent direction to pay over, however, is “ to each of my said children or to its or their issue as aforesaid,”' in which phrase' the [215] word said indicates an intention to restrict the gift to the children named in the will, and to the issue óf the children so named. We have, therefore, an apparent conflict between the intention of the testator as expressed in the direction to divide, and his intention as expressed in the direction to pay over the income after the division, and the question is which intention should prevail. It is putting the case quite as strongly as it can fairly be stated for the appellants to say that the language of the 5th article of the will, as a whole, is as capable of one construction as of the other. Under these circumstances, that interpretation is to be preferred which will permit the issue of all the children of the testator to share equally in his bounty. (Matter of Estate of Brown, 93 N. Y. 295 ; Stokes v. Weston, 142 id. 433.) The conveyance of the Mississippi plantation in trust for Dunbar Marshall’s mother for life, with’ remainder over to him upon her death, is an extrinsic fact tending to show that the testator meant to distribute his property with substantial equality, this gift being offset, as the learned surrogate suggests, by the testamentary annuities to the children named in the will. There was nothing in the relations of Dunbar Marshall, or his father, with the testator to occasion any distinction or discrimination against him and in favor of the other grandchildren. The testator appears to have been on terms of amity with all his children and grandchildren alike; and, in the absence of any clear expression or implication necessarily leading to that result, we should avoid a construction of the will which would disinherit this one grandchild. “ That meaning is to be preferred * * * which inclines to the side of the inheritance of the children of a deceased child.” (Scott v. Guernsey, 48 N. Y. 106, 121.) We are well aware that quite another view of this will may readily be taken, and that it is impossible to say. with absolute certainty that the construction adopted by the surrogate represents the intention of the testator. All that we can assert is, that the probabilities of the case seem to us to preponderate in .favor of his conclusion, and lead us to sustain it. The decree appealed from should be affirmed. All concurred. Decree affirmed, with costs.