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Attorney(S)

Charles F. Brown, Arthur Sutherland and Henry De Forest Weekes for Ray D. Bowers et al., appellants. Lawrence Millet for Margaret D. Bowers, respondent. Thomas B. Gilchrist for respondent.

Judges

Chester B. McLaughlin
Benjamin N. Cardozo

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Smart Summary

Summary of Opinion: In the Matter of the Accounting of The Farmers' Loan and Trust Company (as Trustee under the Will of Charles W. Durant)

Factual and Procedural Background

Charles W. Durant died in 1885 leaving a will and codicil that created trusts and distributed his residuary estate in specified fifths. Under the ninth clause he gave one-fifth in trust (naming his son Frederick as trustee, who renounced, and Farmers' Loan and Trust Company was appointed in his place) to invest and pay income to his daughter Estelle for life and, upon her death leaving lawful issue, to pay the principal "to such issue ... to be equally divided between them." Estelle (also referred to as Mrs. Weekes) died in December 1918, survived by five children (three by a first marriage and two by a second) and two grandchildren (sons of one daughter).

After Estelle's death the trustee petitioned to settle accounts and to obtain a decree directing distribution of the trust corpus. The two infant grandchildren, by guardian, each claimed a one-seventh share on a per capita basis among the seven persons constituting "issue" of Estelle. The five children contended the distribution should be per stirpes, i.e., equally among the five children to the exclusion of the grandchildren. The Surrogate's Court held that "issue" meant only the five children and directed distribution equally among them. The guardian of the grandchildren appealed to the Appellate Division, which (with one justice dissenting) modified the decree to give the grandchildren equal shares with the children. The children appealed to the Court of Appeals.

Legal Issues Presented

What is the meaning of the term "issue" as used in the ninth clause of Durant's will — does it include the grandchildren (descendants of a child who is living) or is it confined to the deceased child's children?
Should the trust fund be distributed per stirpes (by right of representation, excluding grandchildren where their parent is living) or per capita (equal shares among all living descendants at the time of distribution)?

Arguments of the Parties

Appellants (the five children of Estelle / Ray D. Bowers et al.)

Contended that the word "issue" in the ninth clause should be construed to yield a per stirpes distribution — i.e., the trust corpus should be divided equally among the five children of Estelle, excluding grandchildren whose parent (their own mother) is alive.
Relied on the textual pattern of the will emphasizing equality among beneficiaries (frequent phrases such as "equally divided between them," "equally to be divided," "in equal shares") to show the testator's intent for equal shares among children rather than a per capita division that would allow grandchildren to take while a parent survived.

Respondents (the infant grandchildren, by guardian / Henry Dearborn as guardian)

Claimed that "issue" includes descendants in any degree and sought a per capita distribution giving each of the seven living "issue" (five children and two grandchildren) an equal one-seventh share.
The guardian asserted the grandchildren were entitled to share equally with the children as members of the class "issue" living at the time of Estelle's death.

Trustee

The Farmers' Loan and Trust Company, as trustee, instituted the accounting proceeding and sought judicial settlement and directions as to beneficiaries and manner of distribution. The trustee's role was procedural and to obtain guidance for distribution; the opinion does not elaborate further advocacy by the trustee.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Farmers' Loan Trust Co., 213 N.Y. 168	Held that language referring to "issue" in comparable context required representation and a per stirpes distribution rather than per capita.	The court treated this decision as controlling: it supports construing "issue" to require representation and a per stirpes division when the context so indicates.
Matter of Union Trust Co., 170 App. Div. 176; affd. 219 N.Y. 537	Addressed whether a granddaughter whose mother was living could share; held that a per stirpes division was required to effectuate equality intended by testator.	The opinion relied on this case to show similar holdings in New York that favored per stirpes division where context showed the testator intended equality.
Schmidt v. Jewett, 195 N.Y. 486	Supports the general rule/presumption that, absent other indication, "issue" includes descendants in any degree and there is a presumption favoring per capita distribution.	The court acknowledged this presumption but explained that it yields where context shows a contrary intent; Schmidt is cited to state the baseline rule the court departs from here because of contrary textual indications.
Bisson v. West Shore R.R. Co., 143 N.Y. 125	Also cited for the presumption favoring per capita distribution when "issue" is used absent context to the contrary.	The decision was used to describe the presumptive rule the court considered and then overcame due to the will's language and plan.
Ferrer v. Pyne, 81 N.Y. 281	Expresses that the presumption favoring a particular construction yields to "a very faint glimpse of a different intention."	The court invoked this principle to justify departing from the general presumption where the will's repeated language showed the testator's intent for equality and representation.
Vincent v. Newhouse, 83 N.Y. 505	Same principle as Ferrer v. Pyne — presumption can yield to contextual indicators of a different intent.	Used to support the proposition that textual or contextual clues can overcome the default presumption favoring per capita.
Dexter v. Inches, 147 Mass. 324	Massachusetts precedent where similar language ("issue") was held to operate by way of representation (per stirpes), even though not expressly stated.	The court cited this analogous case as persuasive authority supporting a per stirpes construction of "issue" in comparable circumstances.
Petry v. Petry, 186 App. Div. 738; cited with 227 N.Y. 621	Cited by the concurring opinion in support of the principle that consistency of terminology and overall plan of a will can justify a per stirpes construction.	Cardozo, J., cited this authority to bolster the argument for construing like words uniformly throughout a will to maintain coherence and effectuate the testator's general plan.

Court's Reasoning and Analysis

The Court of Appeals analyzed the ninth clause in the context of the entire will. It recognized the general presumption (noted in prior decisions such as Schmidt v. Jewett and Bisson) that the word "issue" ordinarily includes descendants in any degree and that a per capita division is favored absent contrary indication. However, the court found sufficient contextual evidence in Durant's will to overcome that presumption.

The analysis emphasized the testator's repeated use of phrases such as "to be equally divided between them," "equally to be divided between them," and "in equal shares" in multiple paragraphs of the will and codicil. The court read these recurrent phrases as demonstrating that equality of distribution among primary beneficiaries was the dominant intent. Given that dominant plan, a per capita distribution that allowed grandchildren to take while their parent (Estelle's daughter) remained alive would have produced an unequal result (for example, giving one branch three shares while other siblings would receive one share each), contrary to the testator's evident purpose.

The court relied on its prior decisions (Matter of Farmers' Loan Trust Co. and Matter of Union Trust Co.) and on persuasive authority (Dexter v. Inches) to conclude that the contextual indicators required treating "issue" as operating by representation — i.e., per stirpes. The concurrence (Cardozo, J.) added emphasis on retaining consistent terminology and coherence across the instrument: because the testator used the same word "issue" in multiple provisions and elsewhere provided for substitution of issue by representation when primary gifts failed, the word should be given a uniform meaning (representation) throughout the will to preserve unity of plan and avoid incoherence or discrimination among descendants.

On that basis the court concluded that the Surrogate's construction (excluding the grandchildren and distributing equally among the five children) reflected the testator's intent and that the Appellate Division's modification (allowing the grandchildren to share per capita) was erroneous.

Holding and Implications

Holding: The Court of Appeals reversed the Appellate Division's order and affirmed the decree of the Surrogate's Court. The trust fund created by the ninth clause is to be distributed per stirpes — i.e., equally among the five children of Estelle — and the two grandchildren are excluded from taking while their parent (one of Estelle's children) was living. Costs were awarded to appellants, payable out of the estate.

Implications: The direct effect is that the trust corpus is divided equally among Estelle's five children rather than among seven living descendants. The court's decision follows and applies existing New York authority favoring a context-driven construction of "issue" and does not purport to announce a novel rule beyond application of those precedents and the will's demonstrated intent.

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In the Matter of the Accounting of THE FARMERS' LOAN AND TRUST COMPANY, as Trustee under the Will of CHARLES W. DURANT, Deceased, Respondent. RAY D. BOWERS et al., Appellants; HENRY DEARBORN, as Guardian of GEORGE S. DEARBORN, 2d, et al., Respondents.

McLAUGHLIN, J.

Charles W. Durant died in 1885, leaving him surviving five children and certain grandchildren. His wife predeceased him. He left a last will and testament and codicil thereto, which were admitted to probate by the Surrogate's Court of the county of New York, and letters testamentary issued to one of the executors therein named. By his will he gave his entire residuary estate to his executors in trust to invest and keep invested during the life of his wife and to annually pay to her the income therefrom up to a certain amount, and if it exceeded the amount named, then to divide such surplus equally among his five children. Upon the death of his wife he gave to each of his grandchildren then living "in remembrance of me" one thousand dollars, and then directed that the balance of the residuary estate be divided into five equal parts, one of which he gave to each of his sons Charles, Frederick and Howard; one to the Union Trust Company of New York, in trust, to invest and keep invested and pay the income therefrom to his son Thomas during his natural life; and the remaining fifth part of said residuary estate he disposed of by the ninth clause, the construction of which is all that is here involved. This clause reads:

" Ninth. I give, devise and bequeath one other fifth part of said rest, residue and remainder of my estate unto my son Frederick C. Durant in trust; to safely invest the same * * * and to apply the income thereof to the sole and separate use of my daughter Estelle, now the wife of Henry C. Bowers, during her natural life free from the debts and control of her husband, and upon the death of my said daughter leaving lawful issue her surviving, then to pay over to such issue the principal of such share so devised in trust to be equally divided between them."

The testator's son Frederick, named as trustee in the clause quoted, renounced the appointment, and the Farmers Loan and Trust Company was appointed trustee in his place.

The daughter Estelle, described as the wife of Henry C. Bowers, became, after his death, the wife of John A. Weekes. She died in December, 1918, leaving her surviving five children, three by her first marriage and two by the second, and two grandchildren, sons of one of her daughters. After her death the Farmers Loan and Trust Company, as trustee of the trust created by the clause quoted, instituted a proceeding to have its accounts judicially settled and to obtain a decree directing the manner of distribution of the trust fund among the persons entitled thereto. The citation was duly served upon all of the children of Mrs. Weekes and also upon her grandchildren, George Samuel Dearborn, 2d, and Henry Dearborn, Jr., both of whom were infants under the age of twenty-one years. Upon the return of the citation, the infants, by guardian, each claimed a one-seventh part of such trust fund upon the basis of an equal per capita distribution thereof among the seven persons constituting the "issue" of Mrs. Weekes living at the time of her death. The claim was contested by the five children of Mrs. Weekes, each of them claiming a per stirpes distribution, or an equal one-fifth share of such estate, to the exclusion of the two grandchildren.

The surrogate held that the word "issue" as used in the ninth clause of the will of the testator included only the five children of Mrs. Weekes and did not include her two grandchildren; and that the fund should be distributed equally among the five children, to the exclusion of the grandchildren. A decree of the Surrogate's Court was entered to this effect, from which an appeal was taken to the Appellate Division by the guardian of the two infant grandchildren, and that court modified the decree appealed from (one of the justices dissenting) by holding that each of the grandchildren was entitled to share equally with the children of Mrs. Weekes in the distribution of the trust fund. From the determination thus made the children of Mrs. Weekes appealed to this court.

I am of the opinion that the determination of the question presented by the appeal is controlled by our decisions in Matter of Farmers Loan Trust Co. ( 213 N.Y. 168, 171) and Matter of Union Trust Co. ( 170 App. Div. 176, 178; affd., 219 N.Y. 537). In reaching this conclusion I have not overlooked the authorities cited by the respondent.

In the Farmers Loan Trust Co. case the provision of the will under consideration was: "I give, devise and bequeath what would have been his or her share, if living, to his or her issue, if any, such issue to take equally what would have been the parent's share." The court held that the fair meaning of this provision was that the issue were to take by right of representation, and that the distribution should be made per stirpes and not per capita.

In the Matter of Union Trust Co. case the provision of the will under consideration was: "I give, devise and bequeath the share in my said real and personal estate theretofore held in trust for her in equal portions unto her then surviving issue, if any; or, if no such issue shall then survive, I direct that her said share shall be added to the share then held in trust for my other daughter, if she shall then survive; or, if not, then I give, devise and bequeath the same in equal portions to her issue, if any then surviving." The question there presented for determination was whether a granddaughter whose mother was living was entitled to share in the estate. It was held that she was not; that a per stirpes division should be made instead of a per capita, as otherwise there would not be the equality of distribution which the testator intended.

It is undoubtedly the general rule, as stated in Matter of Farmers Loan Trust Co. ( supra), that unless some other meaning is given to it by the context, the word "issue" is not confined to children, but includes descendants in any degree, and that there is a presumption favoring a per capita distribution. ( Schmidt v. Jewett, 195 N.Y. 486; Bisson v. West Shore R.R. Co., 143 N.Y. 125.) This presumption, however, yields to "a very faint glimpse of a different intention." ( Ferrer v. Pyne, 81 N.Y. 281; Vincent v. Newhouse, 83 N.Y. 505.)

Here there is sufficient evidence not only to overcome the presumption, but to indicate that the testator intended a per stirpes and not a per capita distribution. Such intention is shown by the frequent use of the words "to be equally divided between them;" "equally to be divided between them;" or "in equal shares." These words, or some of them, are used in the third, eighth, ninth, tenth, fifteenth and sixteenth paragraphs of the will, and also in the codicil. Equality of distribution was the dominant thing in the testator's mind. Thus, he provided for equality among his children in the division of the surplus income; in the corpus of his estate not only in the primary gift of one-fifth to each, but in the alternative gift in case the primary gift to any child failed to take effect; in the gift to his grandchildren; and in the direction for distribution of the corpus of the trust estate created by the ninth clause of his will for the benefit of the daughter Estelle.

It is true there was a discrimination in respect to the children of the son Thomas, but this in no way obscures the testator's intent as to the disposition which he desired to make of his estate, which was one of equality.

This intent would be defeated by a construction which would permit great grandchildren to share in the fund, their parent being still alive. It would produce not equality, but just the contrary. It would give Mrs. Dearborn and her two children one share each, or three-sevenths of the estate, while her brothers and sisters would receive four-sevenths, or one share each.

A case in many respects much like the present one is Dexter v. Inches ( 147 Mass. 324). There, a testator gave his estate in equal shares to eight children and provided that in case of the decease of either leaving issue before receiving a share, "such issue shall represent and take the parent's share." Seven of the children were to take their shares outright, but the share of one son was put in trust, such share to go at his decease, if he left no widow, to his "issue." The son died leaving no widow, but leaving three children and also grandchildren. It was held that the gift "to issue" after the death of the son, though not stated to be to them by right of representation, must be held to have the same meaning as the gift to "issue" where the son died before the testator, and hence that the issue took per stirpes. HOLMES, J., who delivered the opinion of the court, said: "Undoubtedly `issue' may mean, and in this clause does mean, more than children. If one child of Charles had died at any time leaving children living at Charles' death, we will assume that they would not have been excluded. * * * The issue of Charles would have taken by way of representation in one event. If Charles had died `before the receipt of his share' his issue would have `represented' him by the words of the will. There is no reason for issue (the same word) taking the same sum otherwise than by way of representation in the other event, which has happened. If the context of the clause which we have to construe does not, of itself, show clearly in what sense the testator used the word, the alternative limitation makes it plain. We are of opinion that the word `issue' as here used means descendants, taking by way of representation."

The clause of the will here under consideration should receive a similar construction. The per capita rule to which reference has already been made must give way to the manifest intent of the testator.

The order of the Appellate Division, so far as appealed from, should be reversed, and the decree of the Surrogate's Court affirmed, with costs to appellants payable out of the estate.

CARDOZO, J. (concurring).

I vote with Judge McLAUGHLIN for distribution per stirpes because only thus do we keep the will consistent in its terminology and coherent in its plan and structure. We keep it consistent in its terminology, for otherwise the word "issue" means different things in different paragraphs. We keep it coherent in plan and structure, for otherwise there is discrimination, beyond the limits of probable intention, in the treatment of descendants. Either of these considerations might be inadequate if viewed alone. Together they become persuasive.

I have said that distribution per stirpes makes the terminology of the will consistent. The need of preserving uniformity becomes apparent when we leave the subdivisions dealing with the daughter's share and go back to the subdivisions dealing with the gifts to others. On the death of the testator's wife, three sons, Charles, Frederick and Howard, are to receive their shares outright. The possibility existed that they might die in the lifetime of the testator before the gift became effective. In that event, the statute, prohibiting a lapse, would put their issue in their place, and divide the gift per stirpes (Decedent Estate Law, secs. 29, 83, 98; Consol. Laws, ch. 13). We are not left to mere presumption in imputing to the testator knowledge that issue would be substituted. He makes his knowledge plain by adding a provision disposing of the shares in the event that no issue are in being. "Should either of my said sons last mentioned die leaving no lawful issue him surviving, then I give, devise and bequeath the said one-fifth share of the son so dying to and among his brothers and sisters him surviving in equal shares." In the same spirit of caution, he makes provision, after creating the trust for the benefit of his daughter with remainder to her issue, that in case of her death without issue there shall be division among her brothers. The vocabulary of the testator must, therefore, have been as inconstant as his plan was incoherent if he meant that there should be adherence, in the administration of this trust, to the rule of per capita division. He was willing, in that view, to have issue take per stirpes if they were substituted for the sons, and per capita if, in like circumstances, they were substituted for the daughter. I know that what we speak of as the intention of the testator is often, in reality, the intention of the draftsman of the will, if, indeed, the situation, afterwards arising, was within the range of thought at all. I think we can hardly err, however, in imputing the desire alike to draftsman and to signer that the same words should preserve the same meaning through the successive paragraphs of the instrument which one drafted and the other signed ( Matter of Farmers' Loan Trust Co., 213 N.Y. 168, 175). Consistency will, indeed, be sacrificed where intention, as revealed in context or surroundings, will thereby be promoted. The sacrifice will not be made to uphold a rule of distribution which yields to a "faint glimpse" of a contrary desire ( Ferrer v. Pyne, 81 N.Y. 281, 284; Matter of Farmers' Loan Trust Co., supra; Petry v. Petry, 186 App. Div. 738; 227 N.Y. 621).

In emphasizing inconsistencies of phrase, I have exposed incongruities of purpose. The variable word is seen as the reflection of the variable mind. Yet the mind that conceived this will worked simply and directly. A dominant purpose, easily understood, has been consistently maintained. The purpose was to restrict the daughter to a life estate, to restrict also in divers ways the share assigned to Thomas, and subject to those exceptions to treat the descendants all alike. There is no trace of a desire that "issue" should be substituted in accordance with one formula of division when succeeding to one share, and in accordance with a different formula when succeeding to another. Applied to such a will, the per capita rule leads to incoherence and disorder. Division per stirpes gives unity and system.

The order of the Appellate Division should be reversed, and the surrogate's decree affirmed.

HISCOCK, Ch. J., CHASE, POUND, CRANE and ANDREWS, JJ., concur with McLAUGHLIN, J.; CARDOZO, J., also reads concurring opinion, in which all concur.

Order reversed, etc.

MATTER OF DURANT