In re the Judicial Settlement of the Account of Phipard

Davis, J.: The appeal is taken by certain legatees mentioned in the 8th or residuary clause of the will of Henry Rutherford, [358] deceased, and requires the determination of the meaning of the word “ children ” therein contained. The clause in question is as follows: “ Eighth. All the rest, residue and remainder of my estate of whatsoever kind or nature, I give, devise and bequeath to the children of my father’s (James Rutherford) deceased brothers and sister, share and share alike, but if any child or children of my father’s deceased brothers or sister shall have died before me, leaving lawful children, then the said children of any deceased child or children, shall have and receive the share which the deceased parent would have received had he or she survived me, but should it so happen that, there should not survive me any child of my father’s deceased brothers or sister, then I direct that my said residuary estate shall be divided equally between the lawful children of the deceased children of my father’s brothers and sister, living at the time of my decease, share and share alike.” The surrogate construed the meaning of the word children so as to include grandchildren. The testator left him surviving no widow, no issue, no father, mother, brother or sister. His heirs and next of kin were the issue of his deceased father’s brothers and sister. I think the decree should be reversed as to the parts appealed from, and modified so as to exclude the grandchildren of testator’s cousins from participation under the 8th clause. It was said in the case of Davies v. Davies (129 App. Div. 379, 382; affd., 197 N. Y. 598): “ It has been long settled that the term ‘ children ’ does not include grandchildren or more remote descendants, unless there is something in the will to show that the word was used in the broader sense,” citing Pimel v. Betjemann (183 N. Y. 194). This rule of construction is also laid down in Matter of King (217 N. Y. 358, 361). This will is quite definite as to what the testator meant when he used the word “ children.” At the end of the 8th clause he provided for the disposition of the estate in case his first cousins do not survive him. In that event, he directs an equal division of his estate between the children of his first cousins “ living at the time of my decease.” I think it appears quite plain that testator had no intention to include grandchildren of his cousins under this clause of the will. [359] That part of the decree appealed from is reversed, with costs to all parties appearing and filing briefs herein payable out of the estate, and the proceeding remitted to the surrogate for further action in accordance with this opinion. Scott, Dowling and Page, JJ., concurred; Clarke, P. J., dissented.