#### BODINE et al. v. BROWN et al.

(Supreme Court, Appellate Division, First Department.

December 11, 1896.)

Wills—Construction.

Testator devised real estate to bis executor in trust, to divide two-thirds the net income thereof between his four children during their lives, and, on the death of either of the children, the fourth part of such real estate was to go ‘to the issue or heirs of such child in fee, to be equally divided between them.” When the will was made, two of the children were of age,—one being married, and having a child living, while the other two were about 10 years old; and testator so disposed of his personal estate as to avoid intestacy in respect to any part thereof. *Held,*that the devise over to the “issue or heirs” was alternative, and on the death of a child without issue his share was to be divided among his heirs at law per capita.

Appeal from judgment on report of referee.

Action by Clothilde Bodine and others against Ronald K. Brown and others for partition. There was a judgment in favor of plaintiffs, and defendants appeal.

Affirmed.

Argued before VAN BRUNT, P. J., and RUMSEY, WILLIAMS, PATTERSON, and INGRAHAM, JJ.

William G. Choate, for appellants-trustees.

F. J. Worcester, for respondents.

John M. Gardner, for respondent Bodine.

INGRAHAM, J.

The question to be determined in this case depends upon the construction to be given to the eighth clause of the will of George Chesterman, deceased. The will was executed on the 16th day of October, 1865. At the time, the testator had living four children; two of age, and two infants. James, the oldest, was then 24; Carrie, the mother of the plaintiffs, was then 22, was married, and had one child living; and the other two children were then 10 years of age. James, at that time, had not, nor since that time has he had, children. The other two children are also unmarried, and without issue. By the eighth clause of the will, the testator, having made certain provision for his wife during her life, gave all the rest and residue of his real estate to his executors in trust, to divide the net income after deducting a third part thereof, which had been given to his wife, between his children in equal proportions during their natural lives, and further provided that “upon the death of either of my said children I do give and devise the fourth part of such real estate to the issue or heirs of such child in fee, to be equally divided between them.” The question depends upon whether we are to construe the words “issue or heirs” as making an alternative devise to the issue of each child if he or she should leave issue surviving, or, in case of failure of issue, to the heirs of such child generally; or whether the words “issue” or “heirs” are to be considered as synonymous, so that, in the absence of issue of a child dying, that child’s share would go to the testator’s heirs at law, who would then take by descent and not by purchase. The word “heirs” is used but once in the rest of the will, namely, in the seventh clause, where it is *203quite evident that it is not used according to its legal meaning, but applies solely to personal property, and evidently intended to mean “next of kin.” By that clause the testator creates a trust as to two-thirds of his personal estate, giving the income of such two-thirds to his children during their lives, and upon the death of either of his said children one-fourth part of the said two-thirds is to be given directly to the “heirs” of such child dying. Nothing is said in this clause as to the issue of the child dying, but the bequest of the personal estate is to be paid to the heir or heirs of such child upon his or her death. It was the evident intention of the testator in that clause that the share of the personal estate held in trust for each child should be paid, upon the death of the child, to the person or persons being the next of kin of such child at the time of such child’s death. No difference being made between a child dying leaving issue and a child dying without issue, in either case the next of kin of the child dying would take his or her share per stirpes, and not per capita. Such being the evident intent as to the personal property, the testator being careful to avoid intestacy as to the personal property upon any contingency, we are to consider whether he intended that there should be intestacy as to any portion of his real estate. By the eighth clause of the will he created a trust substantially similar to that he had created as to his personal property. Such real estate was devised to his executors in trust, one-third of the income therefrom to be paid to his wife during her life, two-thirds to be divided equally among his children during their respective lives, and upon the termination •of the trust as to each share by the death of a child the share held for that child was disposed of by the clause in question. I think we must consider the age and condition of the children at the time the will was executed in determining just what ultimate disposition of his estate the testator intended by these words. Two of his children were of age,—one unmarried, and without children; the other married, with one child,—and the other two children infants about 10 years of age. The testator must have had in mind, at the time of the execution of this will, the possibility of one of these three unmarried children dying without issue; and certainly there is nothing in the will that would indicate an intention that upon the happening of that contingency the share of the child dying should be undisposed of by the will. The evidence shows that the testator had a large amount of real estate, and though its value at the time is not stated, it evidently constituted a large portion of his property. He was careful to avoid intestacy as to any portion of his personal property, and in giving to the words used their ordinary and primary significance he avoided intestacy as to any portion of his real property.

The rule applied in the construction of wills that in a doubtful case the court is never to give to a will a construction that will involve intestacy of any portion of a testator’s property, is well settled, as is conceded by the learned counsel for the appellants; and *I*think we should apply this rule in this case, unless it appears by *204the will itself, or from the circumstances surrounding the testator-at the time of the making of the will, that he had an intention not to dispose of his real estate by the will upon the happening of the quite possible contingency of one of his three children. dying without leaving issue surviving. The two words used, “issue” and “heirs,” have a well-settled legal meaning; and, while this legal meaning will yield in a case where such meaning would defeat the intention of the testator, it has been many times held that, in the absence of anything indicating such an intention, the primary legal meaning will be given to sxich words when used. The primary meaning of the word “issue” includes all descendants (Drake v. Drake, 134 N. Y. 224, 32 N. E. 114), but would not include the heirs, at law of a person dying without children. The meaning of the word “heir” is much more extensive, and means the person upon whom the law casts the estate in lands, tenements, and hereditaments immediately upon the death of his ancestor. Thus, while the word “issue” would be included within the broader definition of the word “heir,” a devise to “heirs” might include a class not included within devise to his “issue.” We must presume that the testator was acquainted with the primary legal meaning of these two words when applied to a devise of real estate, and that when he added the words “or heirs of such child” he had some intention of doing something that would not be accomplished by the will without the use of those words. If either of his children died leaving issue, such issue would include the children and grandchildren of the child so dying. He must have intended, by the use of these words, therefore, something that would not be accomplished by a devise to his children or their “issue,” and no object for the use of these words has been suggested, nor has any occurred to us, except that they were to apply upon the happening of the contingency of one or more of his children dying without issue. Applying this construction of the will, the meaning of the clause in question is perfectly clear. Intestacy is avoided. The testator intended to give to the issue of a child dying, if issue there were surviving, the share of the child; but, where one of his children died without issue, he intended that such share should go to the child’s heirs at law, whoever they might be, at the time of the child’s death. Any other construction would violate the principle well settled and frequently applied that intestacy is never to be presumed, would make the use of the word “heir” superfluous and without meaning, and would say that the testator, making careful provision for the disposition of his personal property, so that no intestacy could take place, intended to die intestate as to his real property, which at least constituted a very large proportion of his estate, on the happening of a very possible contingency. We do not think that we would be justified in adopting this construction, which would be contrary to the primary legal meaning of the words used, which is unsupported by any expressed intention of the testator, and which would violate a rule of law well settled and universally applied to the construction of wills. “If the instrument is silent as to intention, and stands as a mere *205expression of a will, effect must be given to it according to those rules which, from long acquiescence, have acquired the force of authority. The present seems to be such a case. We are without any indication as to the intentions of the testator in making this disposition of his realty other than in the particular clause of the will itself.” Bisson v. Railroad Co., 143 N. Y. 128, 38 N. E. 104.

We have carefully examined the codicils to the will, but find nothing in them that will tend to indicate that the testator had a different intention. The first codicil of any importance was executed 12 years after the will, and the other two upwards of 15 years after the will. The situation of the testator’s children had then materially changed. The youngest children had become of age, ánd an intention of the testator at that time as a modification of his original will, executed in 1865, seems to us important in determining what he intended by the words used. There is, however, nothing in either of these codicils that indicates that the testator used these words in question in other than their primary legal significance, or from which we could find that the testator intended to die intestate as to any part of his estate. It being clear, therefore, that it was the intention of the testator that' upon the death of either of his children without issue the property should be divided among the heirs at law of the child so dying equalty, the only remaining question is whether such heirs at law took per capita or per stirpes: and we think that the words used by the testator determine this question. The real estate belonging to any child dying is devised to the “issue or heirs” of such child, to be equally divided between them. The direction as to the division applies equally whether the estate goes to the issue of the child dying or to its heirs generally; and it is to be divided, not according to any share, but equally between them,—that is, between the heirs of the child dying. The rule is stated in Bisson v. Railroad.Co., supra, as follows:

> “There being but the one class, there can be no doubt but that the division must be made per capita among the persons entitled, and not per stirpes. I think the words ‘share and share alike’ made that sufficiently clear. Such a direction cannot be distinguished, practically, from one to divide equally. The testator has used the word ‘heirs’ to describe the persons who are to take, and not to fix the interest which would vest in each person by virtue of his heirship, or representation of a stock,—a preferable construction, where the context will permit.”

We think, therefore, that the construction adopted by the referee was right, and that the judgment should be affirmed, with costs. All concur.