Summary
In Matter of the United States Trust Co., 36 Misc. 378, Surrogate Thomas held in this court that issue meant descendants per stirpes where a life interest in a fund was given to the testator's daughter, and on her death the fund was to be divided "equally to and among my daughters that shall then be living and the issue of such of my daughters as may have then died leaving issue, such issue to take the share their parent would have taken if living."
Summary of this case from Matter of BauerdorfOpinion
November, 1901.
Edward W. Sheldon, for trustee.
James T. Lee, special guardian, for Clarence B. Caldwell, infant.
Abel Crook, for Florence W.B. Platt.
The interest of each remainderman in the fund set apart for the trust created by the testator for the benefit of his daughter, Mrs. Spencer, during her life, consisted in a right to share in the distribution and division which the trustee was directed to make on the death or remarriage of Mrs. Spencer. Such interests were, therefore, contingent upon the existence of such remainderman when the time for distribution arrived. Matter of Crane, 164 N.Y. 71. The assignees of Caroline E. Sullivant and of Mary S. Allen will, therefore, take nothing. The word "issue," in its general sense, imports descendants to an indefinite degree. When used in relation to the word "parent," it has been sometimes construed as synonymous with children, but this rule of construction has not always been followed, and when applied to wills easily yields to slight considerations of probable testamentary intention. United States Trust Co. v. Tobias, 21 Abb. N.C. 392; Soper v. Brown, 136 N.Y. 244. I conclude that, as used and intended by the testator in this case, the word "issue" means "descendants," and that in the division now about to be made the eldest living representatives of the stock of each of the testator's eight daughters referred to by him as my "said daughters," and thus excluding the descendants of the daughter who predeceased him, are entitled to share, those representing a deceased daughter taking per stirpes and not per capita. The decree proposed will be corrected to meet this view and again noticed for settlement.
Decreed accordingly.