Drake v. . Drake

32 N.E. 114, 134 N.Y. 220, 48 N.Y. St. Rep. 216, 1892 N.Y. LEXIS 1510

• Court: New York Court of Appeals
• Decided: October 1, 1892
• Status: Published

Opinions

Bradley, J.

The question is whether or not the power of appointment which Mary Hopeton Drake assumed as she did by her will to execute, was within that created by the will of James Drake, and that depends upon the meaning to which the words “ lawful issue,” contained in the provision in that respect, in their relation and application to such power so given by him to her are entitled. By the seventh clause of his will James Drake devised to her eleven houses and lots in the city of Hew York for and during the term of her natural life. And by the eighth clause, in case she should have lawful issue surviving at the time of her decease, he granted to her power to devise or appoint by her will the eleven houses and lots to all or any or either of such issue, as she might in her discretion think proper, and in that case he devised accordingly, and in default of making such appointment he devised the houses and lots to her lawful issue from and after the time of her death, and if such issue should consist of more than one person and be of equal degree of consanguinity, the property should be divided among them in equal shares, and if of unequal degrees of consanguinity, then the issue of any deceased parent should take the share the parent would have taken if he had been surviving. By the ninth clause, in case of her death without having lawful issue, the testator gave and devised to Mary Hopeton Drake “ full power and authority to devise or appoint by her last will and testament or other instrument * * * the said eleven houses and lots of land herein last mentioned, and each and every of them to all or any or either of my sisters, Susan Ann Drake, Sarah Ann Lawrence and Mary M. Keese, or to all or any or either of the lawful issue of my said sisters from and after the death of the said Mary Hopeton Drake forever thereafter, and in such shares and proportions as she may think proper, and in such case I give and devise the same in accordance with such devise or appointment.”

Mary Hopeton Drake died without issue and left her will, by which, in execution of the' power of appointment, she devised the houses and lots in specified shares to some of the children and grandchildren named by her, of Susan Ann Drake and Sarah Ann Lawrence, two of the sisters before mentioned of James Drake. The other sister, Mary M. Keese, died without issue before the will of Mary Llopeton Drake was executed. Susan Ann Drake had' before then also died, and Susan Ann Lawrence, then living, did not survive Mary Hopeton Drake, who was survived by the sisters’ children, who were the parents of the grandchildren in whose behalf the power of appointment was executed by her.

The main proposition urged in support of the action and for the relief sought by it, is that the issue of the sisters could take as objects of the power only in a representative capacity and substitutionally, and, therefore, the appointment to the grandchildren was not permitted, as their parents, the children of the sisters, were living. The question may be considered in the light furnished, so far as it may be by the context or by the other provisions of the will of James Drake, and such circumstances as may legitimately bear in that direction, to determine the-purpose of the power so far as it is dependent upon the import of the words “ lawful issue,” in the sense which they were there used in relation to such power. In its general sense, unconfined by any indication or intention to the contrary, the word “ issue ” includes in its meaning all descendants. (Leigh v. Norbury, 13 Ves. 340; Tier v. Pennell, 1 Edw. Ch. 354; 2 Wash. R. P. 318; Re Corrie, 32 Beav. 426; Re Kavenaugh, 13 Jr. Ch. 120; Podsworth v. Addy, 11 L. J. [N. S. Ch.] 382.) It may, however, when such appears to have been the intent with which the word is used, have the restricted import of children. It has been so construed where there was a certain collocation of words “ parent ” and “ issue ” in a bequest or devise, to the effect that the issue should take the share the parent would, if living, have taken. (Sibley v. Perry, 7 Ves. 522.) While that case has been so criticised or limited as not to be treated as establishing a general rule, the proposition is not questioned that in such case in bequests and devises the issue take substitutionally. (Ralph v. Carrick, L. R. (11 Ch. Div.) 873; 32 Moak, 856; Pruen v. Osborne, 11 Sim. 132; Ross v. Ross, 20 Beav. 645; Robinson v. Sykes, 23 id. 40; King v. Savage, 121 Mass. 303; Jackson v. Jackson, 153 id. 374; Parkhurst v. Harrower, 142 Penn. St. 432.)

The word “issue” may be a word either of purchase or limitation, and will be construed the one or the other as may be necessary to effectuate the intent with which it appears to have been used in the instrument where it is employed. (Doe v. Collis, 4 Durn & East. 294.) And when used in a will making a devise on failure of issue, or to a person and his issue it is treated as a word of limitation and not of purchase, and unless there is something to show that it is entitled to a more restricted sense it imports descendants or an indefinite issue. This is the prima facie meaning in such case and practically it may have the same effect as the use of the term “heirs of the body.” (Slater v. Dangerfield, 15 M. & W. 263, 272; Doe v. Rucastle, 8 C. B. 876; Reinoehl v. Shirk, 119 Penn. St. 108; Kingsland v. Rapelye, 3 Edw. Ch. 1.)

In Palmer v. Horn (84 N. Y. 516), the meaning of the word “issue” was clearly restricted to children by the terms of the mil as both terms were there used synonymously. And Judge Earl there remarked that “ the word ‘issue’ is an ambiguous term. It may mean descendants generally or merely children; and whether in a will it shall be held to mean the one or the other, depends upon the intention of the testator as derived from the context or the entire will, or such extrinsic circumstances as can be considered.” And lie added that it would be held to have the meaning of children “ upon slight indication that such was the intention of the testator.”

In Hobgen v. Neale (L. R. [11 Eq. Cas.] 48), the word “issue” not being restricted in its import was held to have been used in its largest sense.

The meaning of the term issue is not qualified by anything appearing in the provision by which the power of appointment is expressed, but it is suggested that it is by the further provision of the will of James Drake that in case of default in the execution of the power “ I hereby give and devise the said last eleven dwelling-houses and lots of land tq my sisters above named and to their heirs and assigns from and after the death of the said Mary Ilopeton Drake forever, to he divided among my said sisters in equal shares, and in case of the death of any or either of my sisters during the life-time of said Mary Hopeton Drake leaving lawful issue, and then in such case last mentioned the said issue of each one so dying shall take the share or part thereof which the parent of such issue would have taken if she had survived.”

While it may be that the import of the term “ lawful issue” as used in this conditional devise may practically have the same effect as that of “ heirs of the body ” it is not in the view taken necessary to inquire whether it was used in that or the restricted sense of children. For if it be assumed that it had the latter meaning as there employed, it does not follow that such term had that sense in its application to the power in the provision of which it was used, merely because it is contained in the same instrument. (Dalzell v. Welch, 2 Sim. 319.) In the one instance it has application to a devise by the testator dependent upon default of issue of Mary Hopeton Drake and her failure to execute the power. In the other it appears in the grant of power vesting a discretion in the donee in respect to the persons to whom appointment should be made, limited only by designation, to the line of blood of the testator. He also made use of the term “ lawful issue ” in this uncon lined sense in other portions of his will, and especially in the fourth, fifth and sixth clauses by which he made devises to his sisters for the term of their lives, then over to their lawful issue, to be divided equally between them if of equal degree of consanguinity, but if of unequal degrees of consanguinity, the issue to take the share to which the parent would have been entitled if living, also in a like sense in the eighth clause. Thus issue had the meaning of descendants who would take through their stirps at any place in the line of descent where at the time the- limitation took effect, death of ancestry permitted them by representation to do so. And the practical effect is the same as if the term “heirs of the body” had been used. There is nothing in the context to restrict or qualify the sense in which the words lawful issue were used in the provision creating the power. By a careful examination of the will, it seems evident that it was drawn with care, and the terms employed advisedly used; and the fact that the testator has in some instances definitely expressed the effect to be given to the term 11 lawful issue,” as used in those devises, furnishes no support to the suggestion that he intended its use in this grant of power otherwise than the apparent sense in which it was there used. In some other portions of the will that term was applied by him in devises to denote the course of devolution of the property devised, and in those cases issue were to take substitutionally. There does not seem to have been any such purpose in the creation of this power of appointment. In it are no words of limitation of the estate dependent upon representation or substitution. The discretion given to the donee was within certain lines unqualified in respect to the objects of the power. And by fair construction it seems to have been intended that she should exercise the power as to her should seem proper in view of the situation when in her judgment the time should arrive for its exection.

It may here be observed that Mary Hopeton Drake designated by the testator in the will, as his adopted daughter, was treated by him as such, and it was understood in the family that she was his illegitimate daughter. He maintained and educated her, and from the time she left school at the age of twenty years until his death, she continued to reside with him. During that period he displayed great affection for her. “ She had not been treated by his sisters and their children with the cordiality and affection which they had shown towards each other.” He was sensitive in that respect, and was displeased at any ill treatment or social slight of her by them, and declared that he would make a lady of her in spite of them. It may be assumed that the relation of donee of an important power of disposition of property arises out of confidence of the donor in the person vested with it; and. that the greater the discretion the more is the confidence evinced. Mary Hopeton Drake evidently enjoyed the special confidence as well as the esteem of the testator; and in view of the circumstances before mentioned, it is not strange or unnatural that he should desire, so far as practicable, to place her in such position in relation to the property in question as would have the tendency to give her the respect and esteem (to which he may have deemed her entitled) of those who might expect or hope in the exercise of her discretion to become appointees of the power with which she was vested. The view here taken is that this discretionary power of the donee was not at any time after the decease of the testator confined to any one class coming within the range of the power, but embraced them concurrently; and that the term “lawful issue” was there employed in an unrestricted sense. It is, however, urged that the word “ or,” as between the sisters and their lawful issue, was used in a disjunctive and substitutional sense in the provision, and, therefore, the children of living parents were precluded from becoming beneficiaries. The cases cited with a view to the support of the proposition relate to bequests and devises, and do not seem necessarily to have any essential bearing upon the question here. It is true that in a devise to a person or his children the word “ or ” would ordinarily imply an alternative gift. In the present case the question does not relate to a devise, but to the construction of the power given to the donee to appoint the property to all or any or either of the three sisters, “ or to all or any or either of their lawful issue.” The word “ or ” following the names of the sisters in the provision was apparently used in a discretionary rather than a substitutional sense. When used in a devise the construction may be different. Then there is no opportunity for the exercise of discretion in its execution, and the word “ or ” cannot be treated as of discretionary import in its relation to the provision in which it is used, but by implication words may be supplied to make it effectual as a word of substitution. This rule is not necessarily alike applicable to a discretionary power of appointment created by will.

In Longmore v. Broom (7 Ves. 124) the property was bequeathed to the executors in trust to dispose of amongst the brothers and sisters of the testator or their children in such shares and proportions and at such times as they should, in their discretion, think proper. The master of the rolls there said: “ This is not a direct bequest to the objects, but a bequest to the executors, with authority to dispose among them. * -x- * A bequest to A. or B„ is void, but a bequest to A. or B. at the discretion of 0. is good, for he may divide it between them. That is the case of this will. I am not called upon to make any alteration in or addition to this will, which the court never does without necessity. A discretion is given to the executors.” And it was held that it was within their discretion to give the fund to the parents or the children. But as they had failed to dispose of it, the court having no discretion, directed the division of the fund among the parents and children per capita. A like question came before the vice-chancellor in Pennij v. Turner (15 Sim. 368), where, by his will, the testator gave to his mother a life interest in his property, with the provision that at her decease “ I will and devise that all the said estates and property shall be divided amongst my three sisters (naming them) or their children in such proportions as my said mother shall appoint by her last will, or by deed in writing.” The vice-chancellor there said that the property being given amongst the testator’s sisters or their children as his mother should appoint, it is given to a class of persons who might have been appointees; therefore, the word “or” must of necessity mean “and.” Held, that by the power of appointment the mother had the discretion to select the appointees among both the sisters and their children. On review of that case (2 Phillipps, 493) the chancellor, after referring to the construction of the appellants that the sisters alone were entitled to the property, said: “ I am not called upon to make any alteration or addition to the will which the court never does without necessity. The executor might say to whom the fund should be given, the parents or the children; but the court has not that discretion.” The conclusion of the vice-chancellor that the parents and children should share equally in the property was sustained. There brief reference was made to the distinction between that case and those in which direct bequests are made to legatees or their children. (See also In Re Veale 4 Ch. Div. 61; 19 Moak, 669; affirmed 6 Chy Div. 622; 22 Moak, 361.) There the fund was bequeathed to a daughter of the testatrix for life, and after her death “ to and amongst my other children or their issue in such parts, shares and proportions, manner and form as my said daughter shall by deed or will appoint.” The master of the rolls remarked that “ it was first argued that the words or issue ’ were substitutional, but that argument was soon given up.” It was held that the donee had the power, in her discretion, to divide the fund among the children and their parents. This seems to" be the rule of construction applicable to powers of appointment, the execution of which rests in the discretion of the donee when not qualified by other words or by something having relation to it appearing in the context, showing a different intent of the testator. Nothing is found either in the will or extrinsic circumstances to modify the import of the words constituting the provision creating the power and its scope. As has been remarked, the provisions of the will were drawn with care, and each one of them seemingly was prepared in reference to its purpose only. When the word “ issue ” was used in a representative or substitutional sense, it was not left to implication, but was made to so appear by express terms in the distinctive provisions where thus employed. And it is not reasonable to supj>ose that any words to that effect or restrictive of the import of the words “ lawful issue ” were inadvertently omitted in the provision in question. The substitutional sense in which the word “ issue ” was used in any of the provisions of direct devises furnishes no reason for a like import of it in its relation to the provision creating the power. And in view of the suggestion made to the effect that the meaning given to the word “issue” in reference to some of the devises has an essentially important or controlling bearing upon its meaning, as Tised in its relation to the power, it may properly be said that the particularity of expression of purpose in that respect, in all the direct devising provisions, renders the absence of any qualifying or restrictive words to that or any effect in that creating the power, significant of the purpose of the testator that it should have the effect which was expressed by the words as there used to create it; and that there was no intent to qualify or restrict it or the discretion of the donee in its execution. And this was reasonably consistent with the relation, as treated by him, between the donor and donee of the power and the situation then and later, as it may have appeared to, and been anticipated by, the testator. He was an intelligent man, and had accumulated a large estate. He and his adopted daughter were, other than the servants, the only members of his family. By other portions of the will he made provision for his sisters. The donee of the power was of the generation of their children, and was likely during her life to see an increase of their descendants. At the time of the death of the testator, in 1871, his three sisters, all their children and one grandchild were living. And at the time the testatrix made her will in 1880, and of her death in 1884, there were several of the grandchildren of the sisters, as the testator may have anticipated.

Whatever other causes may have led the testator to create the power as he did, it is not unreasonable to assume that it was in view of the situation which might be presented to the testatrix upon the increase during her life of the descendants of his sisters that the term “ lawful issue ” was there used, as it appears to have been, in its unrestricted or broadest sense to embrace them within the scope of the power instead of confining its execution to their children. These views lead to the conclusion that within the range of the power of appointment of Mary Hopeton Drake were all the descendants of those sisters living at the time of her death; that in her discretion she could lawfully appoint the property to all or any or either of them, and in such shares as she saw fit; and that the execution of the power by her will was valid.

The judgment should be affirmed.