Livingston v. Green

By the Court—Gilbert, J. The language of the will in this case is plain and well chosen for the purpose indicated.. The testator gave his wife an estate during her life, and to-his children, each, a vested remainder in fee in one eleventh part of his estate, which should vest in possession upon the termination of the life estate of his widow. As all the children survived the testator, the provision that the children of a deceased child should take the share their parent would have taken never took effect. It is hardly disputed that such is the legal effect of the language employed, hut the appellants contend that the whole will manifests an intention on the part of the testator that his estate should not vest in his children until the death of his widow, and that the children then living should take as survivors, the issue of a deceased child taking a parent’s share. The will contains no language adapted to make such a disposition. The devise is “to all my children and their heirs and assigns.” He then repeats the gift to his children,, naming them, and specifies the share each is to take, namely, one equal share. In the last sentence, the words “heirs and assigns ” are omitted. Taking the gift in either form, however, it is the same in legal effect, for the term heirs or other words of inheritance are not requisite to create an estate in fee. The devise, then, is to the testator’s wife during her life, and after her death to his children, each one share. No-more apt words could have been chosen to create a vested remainder in fee in the children. The words “ from and after the death of my wife” do not make a contingency, but merely point to the time when the estate is actually to vest in possession. The provision for the children of a deceased child was probably inserted because tlie testator thought it was necessary to prevent a lapse. At common law it would have been necessary for that purpose, but the rule has been changed by statute. (2 B. S., 66, § 62.) But whatever the object was, it furnishes no evidence of an intention that the devise of the remainder should not vest at the death of the [55] testator. To give the will that effect, we should have to interpolate into it, after the words “ should any of my children die,” the words K after my decease and before the termination of the estate given to my wife ” or the like, which is not admissible. BTor is there any special significance in the fact that the testator omitted to provide for the contingency of any of his children dying without issue, for the only effect of such an event would have been to enlarge the shares of the children who survived the testator, or in case the child who died left a descendant to vest the share of such child in such descendant. It is claimed, also, that the share which the testator gave to any of his children was liable to be divested on such child’s dying without leaving lawful issue surviving at his death. But such an effect could not be produced without-a radical alteration in the language of the will. It would be necessary to.change the gift to the children from an absolute gift of a remainder in fee, into a gift to them during their lives, and after their decease to their heirs and assigns. This, according to the doctrine of Moore v. Littel (41 N. Y., 66), would, if the same effect should be given to a devise as to a grant, make a vested remainder in each of the grandchildren of the testator, which would be liable to be divested by their death before that of their parents, and the several shares of the estate would, upon the death of the widow, and the life tenants of such shares respectively vest in the grandchildren then living, according to the shares given to their parents respectively. The will of the testator does not admit of such a construction, and we could not give it that effect without making a new will for him. We are unable to perceive that the ninth clause in the will makes any change in the legal import and effect of the seventh clause. There could not, in the nature of things, be any actual enjoyment by the devisees in remainder of their separate shares during the life of the widow. But this is evidently the kind-of enjoyment which the testator meant by the term “ division of my estate.” When, therefore, the testa [56] tor referred to a division of Ms estate among Ms children, as named in the seventh section, he intended to embrace all the beneficiaries therein mentioned. The provision in the seventh section, that the heirs of a deceased child should take the share of their parent, is, by a settled rule of interpretation, restricted to heirs of the body, and such heirs may properly be included in the meaning of the word children as used in the ninth clause. ISTor can any different effect be given to the phrase “ on the event happening of the death of my wife,” in the ninth clause, than to the like phrase in the seventh clause. Both have the same meaning, and point only to the time when the actual enjoyment of the estates in remainder shall begin. Upon the whole, we see no reason to doubt that the court below put the right construction upon the will, and we are unable to discover any general or particular intention of the testator which that construction would defeat. The judgment is, therefore, affirmed with costs.