Wilson v. Wilson

78 N.Y.S. 408

Opinion

CHASE, J.

The word “issue” in a deed or will, where used" as a-word of purchase, and where its meaning is not defined by the corn-text, and there are no indications that it was used in any other than its legal sense, comprehends all persons in the line of. descent from the ancestor, and so has the same meaning as “descendant.” Soper v. Brown, 136 N. Y. 244, 33 N. E. 768, 32 Am. St. Rep. 731. The-rule of law stated from Soper v. Brown, supra, is not disputed by the appellants, but it is claimed by them that there are indications in the will that the testator used the word “issue” as meaning “children.” In the paragraph of the will quoted the word “descendants” is used, and the appellants argue that the use of the word “issue” thereafter indicates that the testator understood that the word “issue” has a-different meaning from the word “descendant,” and that, therefore,, such word must have been used by him in its restricted and limited sense as referring to children only. In other parts of the will each' of testator’s children were mentioned by name, and bequests and devises were made to them severally. If the testator had referred to the children so named as his issue, it would have been strong, and' perhaps controlling, evidence in favor of the appellants’ contention. Instead of using the words “issue” and “children” as synonymous, he several times referred to the legatees and devisees as- his “children,” without in any instance using the word “issue.”

In the seventh paragraph of the will testator provided': “That my executors shall pay the legacies to my said children within three years after my decease, and that my executors shall release and discharge all claims and demands I have against any of my children. * * *” In the sixth paragraph of the will provision is made for renting the farm in question, and his executors were empowered to rent the farm, and apply the rents and profits thereof as in said paragraph provided, and the paragraph then closes as follows: “And,.. in case of any overplus shall remain in the hands • of my executors. at the time my son Ira shall arrive at the age of twenty-five years, that overplus is to be equally divided amongst the eldest male child' of my sons, but neither one to have over one hundred dollars, and,, if any over and above that sum, then the remaining overplus to be equally divided amongst my children.” The repeated use in the will'1 by the testator of the word “children” after the use of the word “issue” is as strong an indication that the testator used these words with the understanding that they have a different meaning, as- the use of" the words “descendants” and “issue” in the fourth paragraph of the will is an indication that testator understood that such words have a different meaning. There is nothing, therefore, in the will to require the reversal of the interlocutory judgment based upon the findings of the trial court in favor of the plaintiff’s contention.

It is quite clear from a reading of the will that the intention of the testator was to retain so far as possible the title to the homestead farm in such of his descendants as bore the name of Wilson. We do not disagree with the suggestions of the trial court in regard to the male children of the living daughter of Ira Wilson, but, as such daughter and her children are not parties to this action, it is unnecessary for us to further consider that question.

The interlocutory judgment should be affirmed, with costs. All concur.