Kirk v. Cashman , 3 Dem. Sur. 242 ( 1884 )

The Surrogate.

By the will of this testator, who died in 1847, his residuary estate was given to his executors, to receive the income thereof, and pay the same to his wife while she should live and remain his widow. The will further provided that, upon her death'or marriage, such estate should be converted into money, out of which should be paid to his brother Richard, if living, and if not living then to his children, in equal parts, the sum of one thousand dollars; to his sister, Mary Kirk, if living, and if not living then to her children, the sum of three thousand dollars; and a like sum to the children of his deceased brother J ames.

The testator’s widow, who never remarried, recently died. His sister, Mary Kirk, died in 1864, leaving her surviving five children and several remoter descendants, the children and grandchildren of certain of her own children whom she had survived. A decree, settling the accounts of decedent’s executor, is about to be entered; and I am asked to decide whether certain children of Thomas Kirk (a son of Mary Kirk) are entitled to share in the second of the above named legacies, Thomas Kirk, their father, having died five years before the death of his mother, the sister of the testator.

It is urged, in their behalf, that they fairly come within the category of “ children,” as that word is used by the testator. To this proposition I cannot assent. The word “ children,” like any other word in a testamentary paper, must be taken in its accustomed sense, in the absence of indications that, when the testator used it, he meant to give it some other meaning, I find no such indications in the will now before me, and, upon the authorities below cited, feel bound to hold that the term “ children ” must here receive its strict construction (Mowatt v. Carow, 7 Paige, 328; Sherman v. Sherman, 3 Barb., 387; Lawrence v. Hebbard, 1 Bradf., 255; Hone v. Van Schaick, 3 N. Y., 540; Guernsey v. Guernsey, 36 id., 272; Feit’s Executors v. Vannatta, 21 N. J. Eq., 84; Magow v. Field, 48 N. Y., 668; Palmer v. Horn, 84 id., 516; Wylie v. Lockwood, 86 id., 291).

A provision for children was .held, in Prowitt v. Rodman (37 N. Y., 42), to include grandchildren and great grandchildren, but in that case the will furnished numerous and striking indications that such was the intention of its maker.

Beebe v. Estabrook (79 N. Y., 246) is cited, in support of the claim that the word u children ” ought not to be limited to offspring in the first degree, but the decision in that case is not applicable to the case at bar. The broad signification was there made necessary by a due regard to the spirit and purpose of the statute of advancements.

The surviving sons and daughters of the testator’s sister, Mary Kirk, are entitled to equal shares of the legacy in dispute. The decree may provide accordingly.