#### *In re*Robinson’s Estate.

*(Supreme Court, General Term, Second Department.*

July 18, 1890.)

Construction or Wills—Classes—“Children”—Term.

A testator devised property to his wife for life, with directions that at her death it should he sold by the executors; and the proceeds he devised to his children “then surviving, to he equally divided among them, share and share alike. ” *Held,*that testator’s grandchildren living at the death of his wife were not entitled to take under the will.

Appeal from surrogate’s court, Westchester county.

On final settlement of the accounts of Edward A. Robinson, executor of James W. Robinson, the surrogate excluded James W. Todd and others, grandchildren of decedent, from participation in that portion of the estate devised by the second clause of the will. The grandchildren appeal.

Argued before Barnard, P. J., and Pratt and Dykman, JJ.

*Herbert F. Andrews,*for appellants. *Samuel Watson,*for respondents.

Dykman, J.

This is an appeal from the decree of the surrogate for the final distribution of the proceeds of the property of the deceased, and the question presented for determination arises under the second clause of the will of James W. Robinson, deceased, which reads as follows: *“Second.*I give, devise, and bequeath the house and lot of land on State street, in the village of Sing Sing, where I now reside, and all the furniture and fixtures therein, to my wife, Hannah, and my daughters Emma R. and Angeline B., to have and to hold, use and enjoy, the same so long as my said wife shall live and remain my widow; and, as soon as practicable after the death or remarriage of my said wife, 1 direct my executors to sell the said house and lot, furniture and fixtures; and the proceeds thereof I give, devise, and bequeath unto my children then surviving, to be equally divided among them, share and share alike.” The widow remained unmarried, and her life-estate in the premises named was terminated by her death. Previous to the death of the widow, and subsequent to the death of the testator, two of his children, William Henry Robinson and Mary J. Todd, died, leaving children, who are the appellants before us on this appeal, and their insistence now is that they fall within the meaning of the term “children,” as it was employed by the testator in the second clause of his will. It is not always easy to discover the intention of a testator in the use of the word “children” in a last will and testament, and the uncertainty is produced by the flexibility of the term. In its primary and precise sense it stands for immediate offspring, and such is the ordinary sense in which it is properly used; yet it may with propriety be employed in an enlarged and cdllective signification, and so we read in the Holy Scriptures of the children of Israel who were the remote descendants of the patriarch Jacob. In the construction of wills and devises, the meaning of the word has sometimes been expanded so as to include grandchildren, when *693the obvious intention of the testator could not be effectuated without such extension, but such construction is not adopted without the requirement of a strong case of intention or necessary implication. Aside from that, the word is understood, like all other words, in its popular signification. It is the province and object of courts in the construction of wills to ascertain and effectuate the intention of the testators, and in this case such intention can be collected only from the fair reading and interpretation of the instrument itself, as there are no extrinsic proofs. In such interpretation, words are to be understood in the sense in which they are ordinarily employed, and, in its popular as well as precise meaning, the word “children” signifies offspring of the first degree; and, if we assume such use of the word by the testator in this second clause of his will, the assumption will impute to him no intention of disinherison, for the part of his will in which it is employed relates to a portion of his property only. The bulk of his estate was given to his children by the fourth clause of his will, so that, while we are at liberty to resort to the context of the will to assist us to determine the sense in which the word was employed by the testator, we yet obtain no light from that quarter. The question then recurs, can the appellants, the grandchildren of the testator, participate in the remainder in this real estate limited upon the life-es-tote of the testator’s widow? The language is this: “I direct my executors to sell the said house and lot, furniture and fixtures; and the proceeds thereof I give, devise, and bequeath unto my children then surviving, to be equally divided among them, share and share alike;” and there is nothing in the structure of the devise to justify the extension of the signification of the word “children” beyond its proper meaning as denoting offspring in the first degree. It would be a forced construction to interpret the meaning of the phrase “my children then surviving” so as to include grandchildren, and especially so when such construction would permit the grandchildren to share equally with children, which is quite unnatural. It is to be observed that, in all the cases where the signification of the term “children ” has been extended beyond its precise meaning, the construction has been aided by the context of the instrument, which cannot, as we have seen, be invoked in this case. Thus in *Re Paton,*111 N. Y. 487, 18 N. E. Rep. 625, it was said in the opinion : “ When the testator directs a division ‘ equally among the children he may then have, or those who may be legally entitled thereto,’ he must be regarded as contemplating the possibility of there being other children entitled to share than his immediate offspring. The word • those ’ must refer to children in order to have a meaning, and refers to the children or issue of his sons and daughters.” In the case of *Prowitt*v. *Rodman,*37 N. Y. 58, one of the propositions laid down by the court of appeals was “that the term ‘ children’ may include issue, however remote, and will be held so to include whenever the reason of the thing demands it.” All of the reported cases and the elementary works are in harmony upon this question, and they all inculcate the same doctrine, that the intention of the testator, as collected from the entire will, must prevail in its construction. In obedience to such principle, we think the intention of the testator in this case was plainly manifested, and that his children living at the death of his widow took the remainder in the house and lot, to the exclusion of his grandchildren. The decree of the surrogate should therefore be affirmed, with costs to be paid by the appellants.

All concur.