Hilliker v. Bast

Jenks, J.: This is a -submitted controversy to obtain a construction of the 4th provision of the will of George Hostrand, deceased. [553] The testator first directed' payment of his debts; second, he bequeathed to his wife, in lieu of dower, the use, income and-interest of $10,000 for life, and upon her'decease tlié said sum to'his son Henry, to him and his lawful issue him surviving forever; third, gave certain household furniture to his wife, and then provided: “ Fourth. All ■ the rest, residue and remainder of 'my estate, both real and personal, I give, devise and bequeath unto my son Henry L. Nostrand, and his lawful issue him surviving forever.” He appointed his sister and his said son executors, and provided in case it became necessary in the settlement of his estate for them to convey the whole or any portion that they should have power to execute to the purchasers of the realty good and ’ sufficient conveyances thereof. It does not appear that there ever had been or that there now is any issue of Henry L. Nostrand. The general sense of the word “ issue ” includes all descendants; it has the same practical effect as the words “ heirs of the body.” (Chwatal v. Schreiner, 148 N. Y. 684; Drake v. Drake, 134 id. 220; Soper v. Brown, 136 id. 244, 247; Kingsland v. Rapelye, 3 Edw. Ch, 1; Schouler Wills, § 554.) When employed to describe a devise to a person and his issue, it is considered as a term of limitation, not of purchase. (Drake v. Drake, supra.) The term, however, has been said to be “ambiguous,” so that notwithstanding its prima facie meaning as a word of limitation, it may be construed as a word of purchase when such intention is to be gathered from the context or from the provisions of the will. (Authorities supra.) I find nothing in context or in any part of the will in this case that would justify a departure from the prima facie meaning of these words. I think that they were used as an expression of limitation for the vesting of the fee in Henry L. Norman. While, of course, this use was not necessary, it is “ quite common,” with the purpose of greater definition or for greater' certainty or by way of pre- " caution. (Thurber v. Chambers, 66 N. Y. 42; Matter of Allen, 151 id. 243; Clark v. Cammann, 14 App. Div. 127.) We are, therefore, of opinion that Henry L. Norman took a fee simple absolute in the real estate devised by the 4th paragraph of the will, and that when the said Henry L. Norman tendered the deed of the premises herein to plaintiff, and when he delivered such deed to plaintiff, he was so seized, and had a good and valid title thereto. [554] It. follows from the terms of the submission that the plaintiff must have judgment of performance against the defendant, without costs. Goodrich, P. J., Woodward, Hirschberg and Sewell, JJ., concurred. Judgment for the plaintiff on submitted case, without costs.