McLennan, P. J.:
The facts are not in dispute. One Frank Schneider died in February, 1892, seized in fee simple and in possession of the real estate described in tlie complaint. He left a last will and testament bearing date June 13; 1875,"which was duly admitted to probate and contained the following clause: “ I give and bequeath to my wife, Elizabeth Schneider all iny property, real and .pei'sonal, to be used and enjoyed by her for and during the period of her natural life, and at her decease I give and devise the same to the children of my, said wife and myself, to be divided equally between them, share and share alike.” At the time such will was made there were living the testator’s wife, Elizabeth Schneider, who was named at executrix, and six children of her and himself, viz., George W. Schneider, ,the plaintiff; the defendants Mary Heilbron, Margaret Hoeret,, Edward P. Schneider and Dora A., Wagner; also a son named Frank Schneider, but who died on the 6th day of February, 1887, fivé years prior to the testator’s death, leaving as his only heir at law an'd only child the defendant Frank Schneider. Letters testamentary were issued" to Elizabeth Schneider, the widow of the -testator,, and she continued to act as executrix until her death, which occurred on or about the 19th day of August, 1905.
To repeat, when the will in question was made and executed there were living six children of the testator and his. wife. At the time of the testator’s death only five of such children were living. The son Frank had died leaving him surviving his only child and heir at law the defendant Frank. Schneider. The first question presented by this appeal is, did the grandson of the testator, the defendant Frank Schneider, under the clause of the will above [723]*723quoted, take the same interest in the testator’s estate as his father, the testator’s son, would have taken if living? The trial court held that Frank Schneider did so take, and such holding is the basis of the judgment appealed from.
We think the conclusion reached by the trial court in that regard was erroneous. It is not claimed that there is any other language or provision in the will which aids in determining the'meaning of the clause in question. The language of the clause is definite and specific. Upon the termination of the life estate the testator bequeaths his property “to the children of my said wife and myself.” The property in question which vested upon the death of the testator was not by the language of the will bequeathed to the testator’s grandchildren (if there should be any), but to the children of his wife and himself. The language used should not be construed so as to make the word “ children ” as used in the clause referred to, include and mean the same thing as “ grandchildren,” unless such a construction is forced by decisions of the Court of Appeals. The decisions, we think, are contrary to such a construction. In Matter of Truslow (140 N. Y. 599, 603) Judge Gray says : “ It is undoubtedly true that the term £ children ’ may include £ grandchildren,’ but to give to it that very comprehensive meaning, we should be able to find such an intention on the testator’s part from other expressions or clauses in the will. I am not aware of any case, in which the term ‘ children’ has been given a broader signification than it naturally imports; except there was something in the will which called for and justified it.” And at page 605 the learned judge further says: “ Language should not be strained, nor words given an unusual meaning, in order to work out a result favorable to the issue of a deceased child.”
In Palmer v. Horn (84 N. Y. 516, 521) the court said : “£ The word ‘children’ in common parlance, does not include grandchildren, or any others than the immediate descendants in the first degree of the person named as the ancestor.’ ”
In Matter of Kimberly (150 N. Y. 90) it was held that “ A devise and bequest of all the testator’s estate ‘unto my three sisters’ (naming them, but without further words), constitutes, by force of the statute (1 R. S. 727, § 44), a tenancy in common and not a joint tenancy or a bequest to a class; and, hence, if one of the three [724]*724legatees has died, before the testator, her legacy lapses and the testator must be deemed to have died intestate as to one-third of his estate.” ■ It was also held in that case that a gift is not made to a class where at the time of making it the number'of donees is certain and the share which each is to receive is also certain and in no way dependent upon the number who shall survive.
In thé case at bar the testator gave his residuary estate to a body of persons, to wit, the children of himself and wife, the number of whom was to be determined when the estate vested.
There is nothing inconsistent with such holding in Matter of Russell (168 N. Y. 169). In that case it appeared that at the time the gift vested, to wit, at the testator’s death, there was no uncertainty with respect to the number of donees or -the amount of the shares of each, and, therefore, it was held that the value or amount of the share of each was in no way dependent upon the number of the beneficiaries who might survive the time of actual distribution.
Other cases might be cited, which decide that by such language as is used in-the will in question the bequest-is to a class, to wit,'the children of the-testator’s wife and himself, and that the extent of the interest of a member of such class in the decedent’s estate is dependent upon the number who survive the testator. As applied to the facts in this case, we can put the proposition no more plainly ;than to say that where a testator devises property to the" children of himself, such children alone will take who survive him, and that the heirs of a child living at the time of .the execution of the will, but having died before the death of the testator, do not take under such language contained in the will.
We conclude that, independent of any other "question, the estate of the testator, "Frank Schneider, the original owner of the fee of the premises in question, vested upon his death in his five children then living, and that his grandson, the defendant Frank Schneider, had no part in such estate.
If we are correct, thus far and independent of any other consideration, the children of the testator, Frank Schneider, are each entitled to a oneFfth interest in the property sought to partitioned, rather thama one-sixth interest as found by the learned trial judge.
It next appears that Elizabeth Schneider, acting as executrix of ' her husband’s yvill, in and about the month of May, 1893; sold to [725]*725the plaintiff in "this action, George W. Schneider, one of the children of herself and husband, a steamboat called Island Queen, which was a part of the estate of her husband, for the agreed price-of $600, and a written contract, not under seal, was made between Elizabeth Schneider, as such executrix, and the said George W. Schneider, the plaintiff herein, which provided that George W. Schneider should pay the said $600 in payments of $100 annually, commencing August 1, 1893, “ and in lieu of payment by him as above, then the said Elizabeth, as executor
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McLennan, P. J.:
The facts are not in dispute. One Frank Schneider died in February, 1892, seized in fee simple and in possession of the real estate described in tlie complaint. He left a last will and testament bearing date June 13; 1875,"which was duly admitted to probate and contained the following clause: “ I give and bequeath to my wife, Elizabeth Schneider all iny property, real and .pei'sonal, to be used and enjoyed by her for and during the period of her natural life, and at her decease I give and devise the same to the children of my, said wife and myself, to be divided equally between them, share and share alike.” At the time such will was made there were living the testator’s wife, Elizabeth Schneider, who was named at executrix, and six children of her and himself, viz., George W. Schneider, ,the plaintiff; the defendants Mary Heilbron, Margaret Hoeret,, Edward P. Schneider and Dora A., Wagner; also a son named Frank Schneider, but who died on the 6th day of February, 1887, fivé years prior to the testator’s death, leaving as his only heir at law an'd only child the defendant Frank Schneider. Letters testamentary were issued" to Elizabeth Schneider, the widow of the -testator,, and she continued to act as executrix until her death, which occurred on or about the 19th day of August, 1905.
To repeat, when the will in question was made and executed there were living six children of the testator and his. wife. At the time of the testator’s death only five of such children were living. The son Frank had died leaving him surviving his only child and heir at law the defendant Frank. Schneider. The first question presented by this appeal is, did the grandson of the testator, the defendant Frank Schneider, under the clause of the will above [723]*723quoted, take the same interest in the testator’s estate as his father, the testator’s son, would have taken if living? The trial court held that Frank Schneider did so take, and such holding is the basis of the judgment appealed from.
We think the conclusion reached by the trial court in that regard was erroneous. It is not claimed that there is any other language or provision in the will which aids in determining the'meaning of the clause in question. The language of the clause is definite and specific. Upon the termination of the life estate the testator bequeaths his property “to the children of my said wife and myself.” The property in question which vested upon the death of the testator was not by the language of the will bequeathed to the testator’s grandchildren (if there should be any), but to the children of his wife and himself. The language used should not be construed so as to make the word “ children ” as used in the clause referred to, include and mean the same thing as “ grandchildren,” unless such a construction is forced by decisions of the Court of Appeals. The decisions, we think, are contrary to such a construction. In Matter of Truslow (140 N. Y. 599, 603) Judge Gray says : “ It is undoubtedly true that the term £ children ’ may include £ grandchildren,’ but to give to it that very comprehensive meaning, we should be able to find such an intention on the testator’s part from other expressions or clauses in the will. I am not aware of any case, in which the term ‘ children’ has been given a broader signification than it naturally imports; except there was something in the will which called for and justified it.” And at page 605 the learned judge further says: “ Language should not be strained, nor words given an unusual meaning, in order to work out a result favorable to the issue of a deceased child.”
In Palmer v. Horn (84 N. Y. 516, 521) the court said : “£ The word ‘children’ in common parlance, does not include grandchildren, or any others than the immediate descendants in the first degree of the person named as the ancestor.’ ”
In Matter of Kimberly (150 N. Y. 90) it was held that “ A devise and bequest of all the testator’s estate ‘unto my three sisters’ (naming them, but without further words), constitutes, by force of the statute (1 R. S. 727, § 44), a tenancy in common and not a joint tenancy or a bequest to a class; and, hence, if one of the three [724]*724legatees has died, before the testator, her legacy lapses and the testator must be deemed to have died intestate as to one-third of his estate.” ■ It was also held in that case that a gift is not made to a class where at the time of making it the number'of donees is certain and the share which each is to receive is also certain and in no way dependent upon the number who shall survive.
In thé case at bar the testator gave his residuary estate to a body of persons, to wit, the children of himself and wife, the number of whom was to be determined when the estate vested.
There is nothing inconsistent with such holding in Matter of Russell (168 N. Y. 169). In that case it appeared that at the time the gift vested, to wit, at the testator’s death, there was no uncertainty with respect to the number of donees or -the amount of the shares of each, and, therefore, it was held that the value or amount of the share of each was in no way dependent upon the number of the beneficiaries who might survive the time of actual distribution.
Other cases might be cited, which decide that by such language as is used in-the will in question the bequest-is to a class, to wit,'the children of the-testator’s wife and himself, and that the extent of the interest of a member of such class in the decedent’s estate is dependent upon the number who survive the testator. As applied to the facts in this case, we can put the proposition no more plainly ;than to say that where a testator devises property to the" children of himself, such children alone will take who survive him, and that the heirs of a child living at the time of .the execution of the will, but having died before the death of the testator, do not take under such language contained in the will.
We conclude that, independent of any other "question, the estate of the testator, "Frank Schneider, the original owner of the fee of the premises in question, vested upon his death in his five children then living, and that his grandson, the defendant Frank Schneider, had no part in such estate.
If we are correct, thus far and independent of any other consideration, the children of the testator, Frank Schneider, are each entitled to a oneFfth interest in the property sought to partitioned, rather thama one-sixth interest as found by the learned trial judge.
It next appears that Elizabeth Schneider, acting as executrix of ' her husband’s yvill, in and about the month of May, 1893; sold to [725]*725the plaintiff in "this action, George W. Schneider, one of the children of herself and husband, a steamboat called Island Queen, which was a part of the estate of her husband, for the agreed price-of $600, and a written contract, not under seal, was made between Elizabeth Schneider, as such executrix, and the said George W. Schneider, the plaintiff herein, which provided that George W. Schneider should pay the said $600 in payments of $100 annually, commencing August 1, 1893, “ and in lieu of payment by him as above, then the said Elizabeth, as executor
The learned'.trial court found that the plaintiff George W. Schneider never paid for" said boat or any part thereof, and that more than six years had elapsed at the time of the death of Elizabeth Schneider since the time for making the -last payment upon said boat as provided in and by such written contract as aforesaid, and, therefore, •held that such claim was barred and outlawed by the six-year Statute of Limitations.
"VVe cannot agree with the conclusion reached by the learned trial court "in that regard. The fair meaning of the contract was that the plaintiff would pay the contract price within six years, and that if he did not, that sum and the interest accruing "thereon might be deducted from his legacy or share of the estate of liis father when the time came for its distribution, to wit, her death, and that the other provision of the contract can only be regarded in the nature of an assignment as security for the payment of such indebtedness. The executrix undoubtedly had the right, upon the failure of George to make payments as agreed, to foreclose his interest in his father’s estate, and her right to resort to such foreclosure would undoubtedly have been barred by the statute after the lapse "of six [726]*726years. But we think she was not under obligation so to do; that she could rely upon the other provision which provided in substance that if the indebtedness was not paid as agleed, that the same migli-t be deducted from his share when the time came for the distribution of the estate.
We conclude that the plaintiff is the owner of a one-fifth interest, less the amount which "may be found upon an. accounting to be due and owing by him to his father’s estate under the agreement referred to.
The defendant Edward P. Schneider transferred all .his right, ■' title and interest in his father’s estate to his mother ‘individually. Thereafter she died leaving a last will and testament which provided as follows: “All the rest, residue and remainder of my property and estate I give, devise and bequeath to my executor hereinafter appointed, to be used and applied by him for the support and maintenance of my son, Edward P. Schneider, and for no other use and purpose whatever, and I direct, for that purpose, that he transfer and convert the same into money and available security and securities and use and advance the same to and for the said support and' maintenance as he shall deem for his best interest.” ,
The learned trial court determined, and we think correctly, that such provision in the will did not create a valid trust, but that upon ' the death of Elizabeth Schneider her property immediately vested in her son, Edward P. Schneider, which included, of course, his interest in the property in question, which he had deeded to her. It, therefore, follows that the judgments of Alexander C. Hermanee and Louis Schauman are liens upon and should be satisfied out of the interest of Edward P.. Schneider in the premises in question.
We conclude that the defendant Frank Schneider has no interest in.the premises sought to be partitioned ; that the plaintiff George W. Schneider has á one-fifth interest therein, less the amount of his indebtedness to his father’s estate because of his purchase of the steamboat Island Queen, and that the defendant Edward P. Schneider is the owner of a one-fifth of the premises acquired, by him under the will of his mother, and that the judgments of Alexander O. Hermanee and Louis Schauman are liens upon and should be satisfied out of the same. ■ •
It follows that a new trial should be ordered. The interlocutory [727]*727judgment should be reversed and a new trial ordered, without costs of this appeal to either party.
Kruse, J., concurred; separate opinion for reversal by Spring, J., in which WiLLiAMS'and Hash, JJ., concurred.
Sic.