Opinion
October 26, 1931.
Harry M. Leek, for the petitioner.
William L. Polley died May 14, 1908, leaving a will dated May 28, 1896. Same was duly probated in this court. The 2d paragraph of his will reads as follows:
"Second. I give, devise and bequeath to my wife, Mary A. Polley all the remainder of my property real and personal during her natural life, and at her decease, I devise and bequeath all said property to my daughters, Emma H. Fields and Fannie A. Ashcraft and my wife's son, Walter C. Robinson, share and share alike and if either of them shall have died before the decease of my said wife leaving a child or children such child or children shall take the share that such deceased parent would have received if living."
The widow, Mary A. Polley, died May 3, 1931. The daughter, Emma H. Fields, died February 11, 1930, and before the death of her mother aforesaid. The said daughter, Emma H. Fields, left no children her surviving but was survived by two grandchildren, Martha Fields, born July 22, 1915, and Harold Fields, born September 8, 1919. They are children of William H. Fields, a son of Emma H. Fields aforesaid; he died February 3, 1923.
I am asked to construe the aforesaid paragraph of the will of William L. Polley in the light of the above facts and determine whether the said minors, Martha Fields and Harold Fields, grandchildren of Emma H. Fields aforesaid, have any interest in said estate.
The term "children" in a will must be taken in its primary sense in the absence of any indication of intention to include grandchildren or great-grandchildren. The intention of the testator was clearly evinced. In this case an enlarged use of the word "children" is not justified by the language of the will. In view of the above, I must hold that the grandchildren of Emma H. Fields cannot inherit their grandmother's share in the above estate. (See 40 Cyc. 1450; Remsen Preparation of Wills Trusts [2d ed.], 96; Matter of Sparks, 27 Misc. 350; Matter of Davenport, 85 id. 671; Matter of Smith, 121 id. 662.)
Submit decree.