In re the Judicial Settlement of the Accounts of the United States Trust Co.

2 Mills Surr. 367, 36 Misc. 378, 73 N.Y.S. 635

• Court: New York Surrogate's Court
• Decided: November 15, 1901
• Status: Published

Opinion

ThoMas, S’.

— The interest of each remainderman in the fund set apart for the trust created by the testator for the benefit of his daughter, Mrs. Spencer, during her life, consisted in a right to share in the distribution and division which the trustee was directed to make on the death or remarriage of Mrs. Spencer. Such interests were, therefore, contingent upon the existence of such remainderman when the time for distribution arrived. Matter of Crane, 164 N. Y. 71. The assignees of Caroline E. Sullivant and of Mary S. Allen will, therefore, take nothing. The word “ issue,” in its general sense, imports descendants to an indefinite degree. When used in relation to the word “parent,” it has been sometimes construed as synonymous with children, but this rule of construction has not always been followed, and when applied to. wills easily yields to slight considerations of probable testamentary intention. United States Trust Co. v. Tobias, 21 Abb. N. C. ; Soper v. Brown, 136 N. Y. 244. I conclude that, as used and intended by tbe testator in this case, the word “ issue ” means “ descendants,” and that in the division now about to be made the eldest living representatives of the stock of each of the testator’s eight daughters referred to by him as my “ said daughters,” and thus excluding the descendants of the daughter who predeceased him, are entitled to share, those representing a deceased daughter taking per stirpes and not per capita. The decree proposed will be corrected to meet this view and again noticed for settlement.

Decreed accordingly.