#### In the Matter of the Judicial Settlement of the Account of The Farmers’ Loan and Trust Company, as Successor Trustee under the Last Will and Testament of Valentine Mott, Deceased, of the Trusts Therein Created for the Benefit of Fannie Mott Campbell and Valentine A. Blacque. Fannie Van Schaick, Individually and as Executrix, etc., of Fannie Mott Campbell, Deceased, Appellant; De Lancey K. Jay, as Special Guardian of John J. Boyd and Others, Respondents.

First Department,

July 10, 1914.

Will — construction — “issue ” — “ children ” or “ descendants.”

A testator after devising all his property to his wife during her life or widowhood provided that upon her death or remarriage the estate should be divided into nine equal parts, one-ninth to each of his seven children and two-ninths in trust for a granddaughter and grandson. He further provided that upon the death of any of his children or grandchildren their share should belong “ to his or her issue, if any,” and that if there be no issue, then to his surviving children and the issue of those deceased.

Held, that the word “issue” should be construed as meaning “children” and that the share of his granddaughter upon her decease passed to her two children.

Although the primary and usual meaning of the word “issue” as used in a will is that of all descendants, this meaning may readily yield to that of “ children” if it appears from the context and from a consideration of the whole will that such was the testator’s intention.

Appeal by Fannie Van Schaick, individually and as executrix, etc., from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 26th *534day of September, 1913, and also from said decree, as amended by an order entered in said court on the 8th day of October, 1913.

*Henry A. Uterhart,*for the appellant.

*William Wickham Hoffman,*for the respondents.

Scott, J.:

The only question presented on this appeal is as to the construction to be given to a single phrase in the last will and testament of Valentine Mott, deceased, the precise question being whether the word “ issue ” as used in the 5th clause of the will should be construed as meaning “children” or “ descendants,” the learned surrogate having adopted the latter construction.

The facts are as follows: Valentine Mott died in April, 1865, leaving a last will and testament dated July 1, 1863, and a codicil thereto dated February 18, 1865, which were both admitted to probate by the surrogate of New York county on May 3, 1865. By his will the testator gave all his estate, real and personal, to his wife for her use and enjoyment during her life or widowhood.

Upon the death or remarriage of his wife he directed his estate to be sold and divided into nine equal parts. He gave one-ninth of his estate to each of his seven children; one-ninth to Isaac Bell, Jr. (the predecessor of the Farmers’ Loan and Trust Company), in trust for Fannie Mott, the daughter of his deceased son, Valentine Mott; and one-ninth to Isaac Bell, Jr., in trust for Valentine A. Blacque, son of his deceased daughter Olivia.

The 4th clause of his will contained the following provision with respect to one-ninth part of his estate given to each of his children: “In case of the death of either of my children before the division of my estate, I give, devise and bequeath what would have been his or her share, if living, *to his or her issue, if any, such issue to take equally what would have been the parent’s share.*If no issue, then I give, devise and bequeath such ninth part to my surviving children and the Issue of those deceased.”

The 5th clause contained the trusts for Valentine A. Blacque *535and Fannie Mott and provided for the payment to each of them of “ the net income of his or her respective share during his or her life,” and then provided as follows: “Upon the death of either I give, devise and bequeath his or her share *to Ms or her issue,*if any. If there be no issue, then to my surviving children and the issue of those deceased.”

Fannie Mott, the testator’s granddaughter, married Samuel Campbell and thereafter was known as Fannie Mott Campbell. She died April 24, 1912, leaving her surviving two daughters, Fannie Van Schaick and Lillie C. Boyd.

Fannie Van Schaick has one child, Frances Carter Van Schaick. Lillie C. Boyd has three children, to wit, John Jaclin Boyd, Frances Campbell Boyd and Emilie Jaclin Boyd.

The question presented, therefore, is whether the testator, by providing in the 5th clause of his will that upon the death of Fannie Mott Campbell, her share was to go to her “issue,” intended thereby her “children,” in which event it will be divided equally between her two daughters, Mrs. Van Schaick and Mrs: Boyd; or whether the testator meant by the word “issue ” the “descendants ” of Fannie Mott Campbell, in which event the trust fund is to be divided into six equal parts, one going to Mrs. Van Schaick and one to her daughter, and one going to Mrs. Boyd and one to each of her three children.

It will be conceded without question that the construction to be given to the disputed clause is to be determined by the application of two cardinal rules: *First,*that the intention of the testator as ascertained from the will is to prevail, and *second,*that the primary and usual meaning of the word “issue” as used in a will is that of all descendants, but that this meaning will readily yield to that of “children” if it appears from the context and from a consideration of the whole will that such was the testator’s intention.

The question in the present case is certainly a close one, but we are of opinion, upon a careful consideration of the whole scope of the will and codicil that the dominating idea in the mind of the testator was to make a stirpital disposition of his property. He creates a number of life estates, and when he provides, as he frequently does, that the remainder shall go to the “ issue ” of the life tenant, he almost invariably uses words *536indicating an intention that those who are to take the remainder shall take by representation, or, as he sometimes expresses it, *per stirpes.*

A very similar question was presented in *Matter of Tenney*(104 App. Div. 290), in which the word “ issue ” was given the meaning of children. Without reiterating the reasons given in that case for arriving at this conclusion, it is sufficient to say that they apply with equal force to the present case. A similar meaning was attributed to the word *“*issue” in *Rasquin v. Hamersley*(152 App. Div. 522; affd., 208 N. Y. 630), and in *Emmet*v. *Emmet*(67 App. Div. 183)

When the testator made his will Fannie Mott and Valentine A. Blacque were each the only child of a deceased child, and it is apparent that it was his purpose to place them in the category of children, and make provision for them accordingly. No reason suggests itself why, as to their shares, he should have intended the remainder to be distributed *per capita*when he had been so careful as to other shares to provide for a distribution by representation. The construction adopted by the learned surrogate would lead to an inequality of distribution which in every other case the testator has been careful to guard against.

For these reasons we are of opinion that the decree, in so far as appealed from, must be reversed, and the word *“*issue ” as used in the 5th clause of the will accorded the construction contended for by appellants, with costs to the appellants and the infant respondents payable out of the fund held in trust for Fannie Mott Campbell, deceased. It will be unnecessary to remit the matter to the Surrogate’s Court merely to readjust the distribution of the fund which can be readily done by the order to be entered herein.

Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.

Decree so far as appealed from reversed, the word *‘ ‘ issue*” in 5th clause of will construed as contended for by appellants, with costs to appellants and infant respondents payable out of the fund held in trust for Fannie M. Campbell, deceased. Order to be settled on notice.