In re Estate of Brown

Rapallo, J.

The testator gave to each of his six daughters a life estate in one-tenth part of his estate, real and personal, with remainder over to their respective children, and the question uoav presented is whether this remainder Avas intended to Amst in all the children of each daughter, or Avhether it was contingent upon such children surviving their mother, so that the issue of a son of one of the testator’s daughters, who died *299 before his mother, were cut off from all participation, in the remainder limited upon her life estate.

The seventh clause of the testator’s will, upon which this question arises, contains language capable of the construction that the remainder was contingent upon the children surviving their mother. The language is, “ And upon the death of any or either of my said daughters, I give, devise and bequeath unto such child or children as my said daughter shall have or leave living at her decease, and to the hei/rs and assigns of such child or child/ren, as tenants in common, one part or share of my said estate, that is to say, the children of my said daughters to have the part or share whereof the mother received the rent and income during her life.”

If, however, this language is capable of any construction which would permit the issue of the deceased son to participate in the remainder limited upon his mother’s life estate, that construction should, on well-settled principles, be adopted in preference to one which should exclude them.

(Scott v. Guernsey, 48 N.

Y.

106 ;

Low v. Harmony, 72 id, 408.)

There are several peculiarities in the form of the disposition of the remainder, which lead us to the conclusion that its true meaning is that the remainder limited upon the life estate of each daughter, should be vested in all the children of such daughter, so that upon the decease of any of such children, leaving issue, such issue would succeed to the interest of the parent in such remainder. If the intention of. the testator had been to admit to participation in such remainder only such of the children of each of his daughters as should survive their mother, that intention would have been clearly expressed by omitting much of the language used, and leaving to stand only the words, “ unto such child or children as my said daughters, so dying, shall leave living at their decease.” But instead of leaving these simple words, the testator inserted, first, the words “ have or,” so as to make the sentence read unto such child or children as my said daughters, so dying, shall have or leave living at their decease; second, he adds the explanatory words, “that is to say, the children of my said *300 daughters to have the part or share whereof their mother received the rent and income during her life.” This clause would be quite controlling had the language been that the children of said daughters should have the part of which the income was given to the mother during her life, instead of whereof their mother received the income. For in this explanatory clause the remainder is given to all the children of each daughter, and no intention is manifested of restricting the gift to such of the children as should survive their mother, or of making the gift contingent upon such survivorship. Taking this explanatory clause in connection with the principal sentence giving the remainder “to such child or children as my said daughters, so dying, shall have or leave,” etc-., we think it discloses that the testator was endeavoring to express the idea that after carving out of each of the parts a life estate to each daughter, the whole remainder should vest in the children of the daughter entitled to the life estate. This would, of course, be a vested remainder which would vest in each child as soon as born, subject only to open to let in after-born children, and descendible to the heirs of any of said children who might die before their mother.

It is not incumbent upon the respondents to show that this is the necessary construction of the will. It is sufficient to show that it is reasonably capable of such construction, and although it may be equally capable of the construction claimed by the appellants, that construction should be rejected under the rule before referred to, as laid down in Scott v. Guernsey and Low v. Harmony, and kindred cases.

There are several considerations which confirm us in the view that thé construction claimed by the respondents is the correct one. It is not reasonable to impute to the testator the intention to exclude wholly from the inheritance, the descendants of either of his daughters, a result which, upon the construction claimed by the appellants, would necessarily follow should such daughter leave her surviving no living child, but only the descendants of a deceased child or children, and in this point of view the words “ and to the heirs and assigns of *301 such child or children forever,” have some significance. In Den v. Manners (20 N. J. L. 145) similar words were held to mean more than the quantity of estate given, and to repel the idea of survivorship. The devise there was “ to the children of my said son, David Manners, and to their respective heirs and assigns,” and were held to show an intention to benefit not only David’s children but the families of such of them as might die before the contingency happened upon which the children were to take. The. significance of the words “ have or leave,” and the distinction between “ having ” and “leaving” are recognized in several of the authorities cited ( Weakley v. Rugg, 7 T. R. 322;

White v. Hill, L. R., 4 Eq. 265;

Bryden v. Willett, L. R., 7 Eq. 472), and it is not straining much to infer that the meaning of the testator was that upon the death of each of his daughters the remainder should go to the children she might have, or leave living, and their heirs and assigns; that is to say, to the living children and to the heirs or assigns of those who might have died, as tenants in common. Beading the clause (which is adapted to the singular as well as the plural number) as applied to the singular number, the reading would be “ to such child as my daughter so dying shall home (or leave living at her decease) and to the heirs and assigns of such child.ʼʼ There could be no doubt that under this reading the issue of William I. would take. The same result, however, follows from construing the remainder as being given to all the children of each of the testator’s daughters, which from the explanatory clause seems to have been bis intention.

The order should be affirmed, with costs.

All concur, except Andrews, J., absent.

Order affirmed.