Goodwin v. Coddington

By the clause in the will above quoted the testatrix devised to every one of her five children an estate for life in one-fifth part of No. 17 Wall street, and, after the death of any one leaving children, to his or her children. In case one of the three sons should die without issue, his one-fifth went in fee to his surviving brothers and sisters, and to the issue of any deceased brother or sister, such issue to take the parent’s share. In case a daughter died without leaving issue, her fifth of said premises went to the testator’s granddaughter Mary M. Moore for life, and after her death to her issue, if any; but, if she left no issue, to the testator’s sons and daughters then living, and to the issue of any deceased son or daughter, the issue to take the parent’s share. After the death of her son Jefferson, leaving two children, Emily M. and Andrew C. Coddington, the testatrix executed a third codicil, containing the provision above quoted. The question presented is, what change did the testatrix intend to make in the disposition which she made by her will of No. 17 Wall street? She reaffirms her division of the property into fifths, and directs that the fifth devised in her will to Jefferson shall be divided into four equal parts, one of which parts she devised for life to each of her four children then surviving, Gilbert S., Clifford, Matilda E., and Louisa, “and after his or her death to the same person or persons who, under and by virtue of said will, shall be entitled to the remainder of the one-fifth therein devised for life to such child.” Upon the death of Louisa Coddington without issue, the remainder of the fifth, “therein [in the will] devised for life to such child [Louisa],” went, not to any son of the testatrix, or to the children or issue of any deceased son of the testatrix, but to Mary M. Moore for life, and remainder to her issue, if any. The remainder of the one-fourth of the fifth devised in the will to Jefferson for life, but by the codicil devised to Louisa for life, goes under the codicil to the “same person or persons” to whom the remainder of the original fifth devised to her for life goes under the will, i. e. to Mary *1101M. Moore for life, and remainder to her issue. Upon the death of Clifford Coddington, leaving four children, the remainder of the fifth devised to him for life went, not to the children of Jefferson, but to his own children in fee; and the remainder of the fourth of the fifth originally devised to Jefferson, but by the codicil to Clifford, goes to the “same persons,” his children. The term “such child” is twice used in the clause of the codicil under consideration, and on the first occasion it refers beyond question to one of the four children of the testator then living, and we think it was last used in the same sense; and the term “same person or persons” includes the issue of the four- children who take a life estate under the will, as modified by the codicil, but does not include the children of her deceased son, Jefferson. What interest Emily M. and Andrew C. Coddington may acquire, if any, by the death of Matilda E. Goodwin, Gilbert S. Coddington, and Mary M. Moore, or of any one of them, can be determined only after those events. It may be that all of them will leave children, and it may be that neither Emily M. nor Andrew C. Coddington will survive any one of those events. The motion for a new trial should be denied, -with costs to the plaintiff and to the guardian ad litem, payable out of the estate. All concur.