## Facts

- A testator’s will created a trust paying income to his widow for life, with the trust remainder to be paid equally to his two brothers.
- The will further provided that if a brother predeceased the widow, that brother’s share would be paid to his “surviving child or children, share and share alike.”
- One brother (Leonard) predeceased the widow, leaving two children: Jacqueline and Daniel.
- Daniel later died before the widow, leaving a widow and children.
- After the widow’s death, Jacqueline claimed Leonard’s entire remainder share as Leonard’s only child then living.
- Daniel’s widow and children claimed a share, arguing either (a) Daniel had obtained a vested remainder transmissible at death, or (b) “children” should be construed to include Leonard’s grandchildren (Daniel’s children).
- The Surrogate’s Court held Daniel had a vested substitutionary remainder that passed under intestacy to his widow and children.
- The Appellate Division modified, holding Jacqueline took Leonard’s entire share and rejecting any construction of “children” that included grandchildren.
- The New York Court of Appeals reviewed the will construction dispute.

## Issues

1. Whether the will’s phrase “surviving child or children” required Leonard’s child to survive the life tenant to take the remainder.
2. Whether “children,” as used in the will, included Leonard’s grandchildren (the issue of a deceased child) absent clear language to that effect.
3. Whether Daniel acquired a transmissible vested interest despite predeceasing the life tenant.

## Decision

- The Court of Appeals ruled that the gift to a brother’s “surviving child or children” required survival to the termination of the life estate.
- The Court held “children” retained its ordinary meaning and did not include grandchildren absent unmistakable contrary intent.
- Because Daniel did not survive the life tenant, he took no interest capable of passing to his estate.
- Leonard’s remainder share passed entirely to Jacqueline as Leonard’s only surviving child when the trust became possessory.

## Legal Principles

- Donative language in a will is construed according to ordinary meaning unless the instrument shows a clear, unmistakable intent to use terms differently.
- “Children” ordinarily refers to immediate offspring and does not include grandchildren absent clear textual direction or necessity to prevent failure of a disposition.
- A remainder gift following a life estate to “surviving” beneficiaries is generally conditioned on survival to the life tenant’s death, preventing transmission by a beneficiary who dies earlier.

## Conclusion

The court construed “surviving child or children” as a survival condition tied to the life tenant’s death and applied the ordinary meaning of “children,” resulting in Leonard’s entire remainder share passing to Jacqueline and excluding Daniel’s estate and descendants.


Matter of Marine Midland Bank, N.A., 547 N.E.2d 1152 (N.Y. 1989)