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(202 N.Y.S.) "The principal of the fund so held in trust for her shall be divided equally among her issue, share and share alike, the issue of any deceased child to take the share their parent would have been entitled to if living."

The life beneficiary and her husband, James R. L. Nisbett, adopted Phyllis Langford Mitchell, Phyllis was the granddaughter of Ellen L. Nisbett, the life beneficiary, and the daughter of Elsie Nisbett Mitchell, now Elsie Nisbett Hoyt. The life beneficiary died August 22, 1922, leaving her surviving three daughters, Elsie Nisbett Hoyt, Anita Nisbett Harding, and Jeannette N. Nisbett, and three grandchildren, Phyllis, whom she had adopted, and two children of Mrs. Harding.

The first question presented is whether the word "issue,” as used in this will, embraces the "adopted" child, Phyllis. I am of the opinion that it does not include her. Matter of Leask, 197 N. Y. 193, 90 N. E. 652, 27 L. R. A. (N. S.) 1158, 134 Am. St. Rep. 866, 18 Ann. Cas. 516; Matter of Hoyt, 120 Misc. Rep. 188. 197 N. Y. Supp. 828. The word “issue,” as used in the will, means offspring and natural descendants. As Phyllis, besides being an adopted child, is also a natural descendant, being a grandchild, the further question is presented, should the remainder interest be divided among all the descendants per capita, which would include the grandchild Phyllis, or is it to be divided into three parts, representing the number of children who survived the life beneficiary.

The word “issue" primarily includes all descendants, and its use contemplates a per capita distribution; but where such a construction violates the obvious intention of the testator or results in an inequality of distribution exception to this rule is made. Matter of Farmers' Loan & Trust Co., 213 N. Y. 168, 107 N. E. 340, 2 A, L. R. 910; Matter of Durant's Will, 231 N. Y. 41. 131 N. E. 562. Equality of distribution is the dominant factor in the testatrix's mind, and the per capita distribution must give way to one per stirpes. Cases cited supra : Matter of Lawrence's Estate, 111 Misc. Rep. 524, 181 N. Y. Supp. 498. In the present will the testatrix divides the remainder after the death of the life beneficiary "equally among her issue, share and share alike," and the word “issue,” as used in this sentence, must mean "children,” for it is immediately followed by a provision that, if any of them be dead, referring to issue, "the issue of any deceased child to take the share their parent would have been entitled to if living."

A great inequality of distribution would result in permitting Phyllis, a grandchild, to take a distributive share with the three children of the life beneficiary, one of whom is Phyllis' mother. It would cut down the shares of the three natural daughters of Mrs. Nisbett to fourths instead of thirds, and a grandchild would obtain a substantial share at the expense of her natural mother and the latter's two sisters. This would violate the specific language of the will, which provides that a grandchild is to take only in the event that its parent be dead.

I therefore hold that the word "issue," as used in this will, refers to children of the life beneficiary, to the exclusion of their children. Maiter of Lawrence, supra. The decree settling the account should provide for a distribution of this remainder interest in accordance with this decision.

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[2] Counsel fees and other expenses of this intermediate accounting should be paid out of income. Matter of Long Island Loan & Trust Co., 79 Misc. Rep. 176, 140 N, Y. Supp. 752; Matter of Brownell, 60 Misc. Rep. 52, 112 N. Y. Supp. 597.

Proceed accordingly.
Decreed accordingly.

(121 Misc. Rep. 663)

In re REGNAULT'S ESTATE.

(Surrogate's Court, New York County. November, 1923.) 1. Wills 184(4)-Legacies crossed out of will, and referred to in codicil as

being crossed out, revoked.

Where testatrix crossed out certain legacies in her will, and by a codicil requested her husband to send all the legacies to the addresses named in the will, except the ones crossed out, there was a revocation of

the legacies crossed out. 2. Wills Cm184(4)--Codicil revoked trust, and bequeathed property absolutely.

A will created a trust, the income of which was to be paid to testatrix's husband for life, with remainder to her nephew. A codicil referred to certain bequests mentioned in the will, and provided that all the rest of testatrix's personalty was left to her husband. Held, that the codicil

revoked the trust, and bequeathed personalty to husband outright. 3. Wills Cw579—Gift of residue of personalty not limited by mentioning specific

classes.

By a provision bqueathing “all the rest of my personal property, bank books, securities and dividends," testatrix did not limit the kind and class of personal property bequeathed to bank books, securities, and dividends. In the matter of the estate of Anna Regnault, deceased. Proceedings for construction of a will. Will construed.

Frederick L. Cramer, of New York City, for petitioner.

Ivins, Wolff & Hoguet, of New York City, for Marie Hoguet and Marguerite Hoguet.

O'BRIEN, S. The decedent executed a will in which, after bequeathing certain jewelry and personal effects to friends and relatives, she created a trust to run during the lifetime of her husband, the income of which she directed to be paid to him with remainder upon his death to her nephew. Subsequently she executed a codicil to said will, in which, after making two bequests and further provisions, naming an additional executrix, she confirmed in all other respects said will. At a later, date she executed a further codicil, which reads, so far as is material, as follows:

"II. I desire of my husband, to send all the legacys to the addresses named in my first will, except the ones crossed out, as I want him to keep the French clock of my brother Louis for himself, and he can send it to Germany when he feels like it. All I ask of my husband is: To make a will and bequeath everything to my family.

"III. All the rest, of my personal property, my bank books, securitys and dividends I leave to my husband.”

[1,2] A construction is requested of the court as to the extent and scope of these two paragraphs. It was the intention of the testatrix

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(202 N.Y.S.) that her husband should see to it that her bequests were carried into effect by physically sending all the legacies to the addresses named in the will and codicil. Secondly, as to the scope, meaning, and effect of the words of the clause "except the ones crossed out, as I want him to keep the French clock of my brother Louis for himself and he can send it to Germany when he feels like it," I am of the opinion that the testatrix, having crossed out the ninth, tenth, and eleventh paragraphs of her will, in which she made certain bequests to Florence J. Reed, Marie V. Hoguet, and Marguerite Hoguet, intended to revoke and cancel these respective bequests. While it has been held that revocations and cancellations of parts of a will may not be accomplished by drawing lines through such part or parts (Decedent Estate Law, $ 34, Lovell v. Quitman, 88 N. Y. 377, 42 Am. Rep. 254; Matter of Van Woert's Wisi, 147 App. Div. 483, 131 N. Y. Supp. 748; Matter of Kent, 89 Misc. Rep. 16, 152 N. Y. Supp. 557; Matter of Hildenbrand's Will, 87 Misc. Rep. 471, 150 N. Y. Supp. 1067; Matter of Fox's Will, 118 Misc. Rep. 352, 193 N. Y. Supp. 232), the testatrix here has accomplished such a revocation by the language used in the second paragraph of the latter codicil which is quoted above.

The effect of paragraph 3 of said codicil is to revoke the trust created in paragraph 12 of the will, and to bequeath the rest of the decedent's personal property, bank books, “securitys” and dividends to her husband outright.

[3] As to the question raised for construction, whether under the terminology used by the testatrix in this her later codicil, the personal property bequeathed to her husband is limited by the following words: "My bank books, securitys and dividends”—and personal property of that particular kind; or whether "my personal property" means the entire residue of her personal property of all kinds, I adopt the latter construction, and hold that the testatrix did not limit the kind and class of personal property bequeathed to her husband to bank books, securities, and dividends,

Tax costs and submit decree accordingly.
Decreed accordingly.

(121 Misc. Rep. 662)

In re SMITH'S ESTATE.

(Surrogate's Court, New York County.

November, 1923.)

Wills Ow497 (2)-Child of deceased child not entitled to participate in gift to

surviving "children" of named person.

Testatrix left the residue of her estate to her brother-in-law, and, if he predeceased her, to his surviving children. Brother-in-law predeceased testatrix, leaving seven children, one of which predeceased testatrix, leaving an infant daughter. Held, that infant daughter was not entitled to participate in the distribution, as the gift was to a class, and "children" does not include grandchildren.

(Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Child-Children.) For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

In the matter of the estate of Ellen M. Smith, deceased. Proceeding to account and for construction of a will. Will construed.

Eugene Morgan Hawkins, of New York City, for executrix.
Edward J. Dunphy, of New York City, for petitioners.
Peck & Hancock, of New York City, for legatees.
William C. Orr, of New York City, for Home for the Aged.
Charles Brandt, Jr., of New York City, special guardian.

O'BRIEN, S. This application to construe certain parts of the will is made in an accounting proceeding. After providing for a number of bequests the testatrix in paragraph eighteenth says in part:

"The rest, residue and remainder of my property, of every description, I give, devise and bequeath as follows, viz.:

To my brother-in-law, Thomas F. Smith, one-sixteenth thereof."

In paragraph twenty-first the testatrix further provides:

"In the event of the death of Thomas F. Smith before me, I give, devise and bequeath the share of my estate given and bequeathed to him in section eighteenth of this instrument to his surviving children.”

The contingency anticipated by the testatrix occurred. Thomas F. Smith, mentioned in paragraph eighteenth, predeceased the testatrix, leaving him surviving seven children. One of these children, Annie B. Dexheimer, died after the father and before the testatrix, leaving her surviving an infant daughter, Mary M. Dexheimer, who is still living.

The question arises whether the said infant is to participate in the distribution of the share of her grandfather, Thomas F. Smith, under the provisions of paragraph twenty-first. The substitutional gift in said paragraph was to a body of persons uncertain in number at the time of the gift and to be ascertained at some future time (Matter of King, 200 N. Y. 189, 93 N. E. 484, 34 L. R. A. (N. S. 1 945, 21 Ann. Cas. 412), and accordingly was a gift to a class (Matter of Pulis, 220 N. Y. 196, 204, 115 N. E. 516; Matter of McKim's Estate, 115 Misc. Rep. 720, 185 N. Y. Supp. 767; Matter of Baer, 147 N. Y. 348, 41 N. E. 702; Matter of Seebeck, 63 Hun, 179, 17 N. Y. Supp. 676, and cases cited : Magaw v. Field, 48 N. Y. 668), and the children of Thomas F. Smith, who survived both him and the testatrix, are the only ones to take.

The point raised by the special guardian for the infant Mary M. Dexheimer that the term “children” includes grandchildren is not well taken. There is nothing in the will to indicate an intention on the part of the testatrix to so use said term, and it must be taken in its priniary sense. Hunt v. Wickham, 197 App. Div. 800, 190 N. Y. Supp. 16; Matter of Phipard, 182 App. Div. 357, 169 N. Y. Supp. 554; affirmed 223 N. Y. 676, 119 N. E. 1072; Matter of Montgomery, 177 App. Div. 799, 165 N. Y. Supp. 52; Matter of Pulis, supra; Matter of McKim, supra. Accordingly I hold that the said infant Mary M, Dexheimer is not entitled to participate in the distribution,

Proceed with the account accordingly.
Decreed accordingly.

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(Supreme Court, Equity Term, Monroe County, December 29, 1923.) 1. Specific performance C53_Vendee held entitled to assume description in contract included entire lot.

As respects vendor's right to specific performance, where the parties intended the sale of a lot as fenced, vendee was not bound to know that the description in the contract of "177 feet, more or less," did not include all the land he was to receive, but he had the right to assume that

it would convey the premises as fenced. 2. Vendor and purchaser Om 165_Vendor held not entitled to compel acceptanco

of deed, omitting portion of lot acquired by adverse possession.

Where a lot 184.08 feet deep included 16 feet of an abandoned alley, which had been inclosed by fences for over 20 years, vendor, who claimed title to the 16 feet by adverse possession, could not compel vendee to ac. cept a deed not including the 16 feet, under a contract to convey "177

feet, more or less,” which the parties intended to include the entire lot. 3. Specific performance Cw10(1)-Granted, with abatement for deficiency, where

vendor unable to perform.

Where vendor shows inability to perform under his contract, equity, with vendee's consent, may decree specific performance so far as possible,

with an abatement in price for any deficiency. 4. Vendor and purchaser Om 165-Deficiency in depth of lot held not immaterial

variance as matter of law.

It cannot be said as a matter of law that a deficiency of 8.92 feet in depth of a lot sold as 177 feet deep, "more or less," is an immaterial variance. Action by Morris F. Clark against Garson Merinsky for specific performance of a contract to convey realty. Complaint dismissed, and judgment for defendant on his counterclaim.

William MacFarlane, of Rochester, for plaintiff.
Harry Rosenberg, of Rochester, for defendant.

THOMPSON, J. To fulfill his signed “acceptance" of defendant's purchase offer for "property situate on the west side of Plymouth avenue, in the city of Rochester, county of Monroe, and state of New York, known as house Nos. 233-235, and also three apartments in the rear, and known as Nos. 1-2-3 Plymouth Terrace *

size of lot 62 feet (width) by 177 feet (depth), more or less," plaintiff tendered a deed for a lot 168.08 feet in depth. Here he asks that equity conipel defendant to accept such conveyance, claiming that he has thereby discharged his contract obligation to all substantial and material effect.

(1,27 The lot is bounded and defined by fences. It has a depth of 184.08 feet, which includes part of an abandoned alleyway 16 feet in width, also, and for more than 20 years, inclosed by the lot fences. The deed tendered conveys only to the edge of the alley, thus omitting the 16 feet so-called alley part of the lot, and failing to carry the 177foot depth mentioned in the contract by 8.92 feet. Plaintiff claims this to be an immaterial and unsubstantial discrepancy, when viewed in the light of the meaning of the words "more or less," found in the contract. Defendant refuses to accept the deed because of this variance, resists a decree, and asks return of the earnest money. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

202 N.Y.S.-18

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