The judgment should therefore be affirmed, with costs.
PRATT, J., concurs.

WILLIAM WATSON, App'lt, v. ALBERT BENZ, Resp't. (Supreme Court, General Term, Second Department, Filed July 18, 1890.) 1. COSTS-OFFER OF JUDGMENT-CODE CIV. PRO., § 3072.

If an offer of judgment made on appeal from a justice's judgment be not accepted, and the party refusing to accept does not fail to obtain a more favorable judgment, he can recover costs from the time of the offer. 2. SAME.

Defendant appealed from a justice's judgment, and thereafter served an offer to allow judgment to be taken for five dollars, nothing being said about costs. The offer was not accepted, and plaintiff obtained a verdict for twelve dollars and a half in county court. Held, that he was entitled to costs, as the judgment was more favorable than the offer.

APPEAL from order setting aside taxation of costs and reducing amount of judgment.

C. A. S. Van Nostrand, for app'lt; Harrison & Moore, for resp't.

DYKMAN, J.-The plaintiff recovered a judgment in this action against the defendant in a court of a justice of the peace for twenty-five dollars damages and five dollars costs, and the defendant served a notice of appeal to the county court, in which he demanded a new trial in that court.

Within fifteen days after the service of the notice of appeal, the defendant served a written offer to allow judgment to be taken against him for the sum of five dollars, but the offer was silent on the question of costs, and it was not accepted.

The action was retried in the county court, and the plaintiff obtained a verdict for $12.50.

Thereupon the county clerk adjusted the costs of the plaintiff at $64.92 and entered judgment in his favor for $77.42.

Subsequently, and on the motion of the defendant, the county court made an order vacating the adjustment of the costs and reducing the judgment to $12.50, and allowed ten dollars costs of the motion to be offset against the judgment as corrected and reduced.

From the last order the plaintiff appealed to this court, and we find it erroneous. The question lies under the control of § 3072 of the Code of Civil Procedure, which is as follows, so far as it has application to this appeal: "Either party may, at any time after the action is deemed at issue in the appellate court and before the trial, serve upon the adverse party a written offer to allow judgment to be taken against him for a sum or property, or to the effect therein specified, with or without costs. * * * If the party receiving the offer, within ten days thereafter, serves upon the adverse party notice that he accepts it, he may file it with proof of acceptance, and thereupon the clerk must enter judg ment accordingly. If the offer is not thus accepted it cannot be proved upon the trial, and if the party to whom it was made fails to obtain a more favorable judgment he cannot recover costs from the time of the offer, but must pay costs from that time."

As the converse of the last paragraph of this section must be true, it follows that if the offer be not accepted and the party does not fail to obtain a more favorable judgment he can recover costs from the time of the offer; the plaintiff in this case can recover costs because he did obtain a judgment more favorable to him than the offer. The offer tendered him a judgment for five dollars, and upon its acceptance by him he might enter judgment for that sum only without costs, whereas he obtained a judgment. for twelve dollars and fifty cents, more than double the amount offered, so that both in respect to the verdict and the costs the judgment was more favorable to the plaintiff than the offer.

The case of Zoller v. Smith, 45 Hun, 319; 12 N. Y. State Rep., 438, is not an authority here, because the plaintiff failed to recover a judgment more favorable than his offer.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars costs.

BARNARD, P. J., and PRATT, J., concur.

In the Matter of the Final Accounting of EDWARD A. ROBINSON, Ex'r, etc., of James W. Robinson, Deceased.

(Supreme Court, General Term, Second Department, Filed July 18, 1890.) 1. WILLS-CONSTRUCTION OF MEANING OF WORD "CHILDREN."

In the absence of anything in the other parts of a will to show that testator intended to give it a more expansive meaning, the word "children" should be construed in its ordinary sense and held to include the immediate offspring only.

2. SAME.

The will directed the executors, on the death of the widow, to sell the house, etc., and gave the proceeds thereof to "my children then surviving, to be equally divided among them, share and share alike." Held, in the absence of other provisions showing a different intent, that the children living at the death of the widow took the remainder in the house and lot, to the exclusion of granchildren.

APPEAL by grandchildren of testator from surrogate's decree on final accounting. The facts appear in the opinion.

Herbert F. Andrews, for appl'ts; Samuel Watson, for resp'ts.

DYKMAN, J.-This is an appeal from the decree of the surrogate for the final distribution of the proceeds of the property of the deceased, and the question presented for determination arises under the second clause of the will of James W. Robinson, deceased, which reads as follows: Second. "I give, devise and be queath the house and lot of land on State street, in the village of Sing Sing, where I now reside, and all the furniture and fixtures therein to my wife Hannah and my daughters Emma R. and Angeline B., to have and to hold, use and enjoy the same so long as ny said wife shall live and remain my widow, and as soon as practicable after the death or remarriage of my said wife, I direct my executors to sell the said house and lot, furniture and fixtures, and the proceeds thereof I give, devise and bequeath unto my children then surviving, to be equally divided among them share and share alike."

The widow remained unmarried, and her life estate in the premises named was terminated by her death.

Previous to the death of the widow, and subsequent to the death of the testator, two of his children, William Henry Robinson and Mary J. Todd, died, leaving children who are the appellants before us on this appeal, and their insistence now is that they fall within the meaning of the term children, as it was employed by the testator in the second clause of his will.

It is not always easy to discover the intention of a testator in the use of the word children in a last will and testament, and the uncertainty is produced by the flexibility of the term.

In its primary and precise sense it stands for immediate offspring and such is the ordinary sense in which it is properly used, yet it may, with propriety, be employed in an enlarged and collective signification, and so we read in the Holy Scriptures of the children of Israel, who were the remote descendants of the patriarch Jacob.

In the construction of wills and devises the meaning of the word has sometimes been expanded so as to include grandchildren, when the obvious intention of the testator could not be effectuated without such extension, but such construction is not adopted without the requirement of a strong case of intention or necessary implication. Aside from that the word is understood like all other words, in its popular signification.

It is the province and object of courts in the construction of wills to ascertain and effectuate the intention of testators and in this case such intention can be collected only from the fair reading and interpretation of the instrument itself, as there are no extrinsic proofs. In such interpretation words are to be understood in the sense in which they are ordinarily employed, and in its popular as well as precise meaning the word children signifies offspring of the first degree, and if we assume such use of the word by the testator in this second clause of his will the assumption will impute to him no intention of disinherison, for the part of his will in which it is employed relates to a portion of his property only. The bulk of his estate was given to his children by the fourth clause of his will, so that while we are at liberty to resort to the context of the will to assist us to determine the sense in which the word was employed by the testator, we yet obtain no light from that quarter.

The question then recurs, can the appellants, the grandchildren of the testator, participate in the remainder in this real estate limited upon the life estate of the testator's widow.

The language is this: "I direct my executors to sell the said house and lot, furniture and fixtures, and the proceeds thereof I give, devise and bequeath unto my children then surviving, to be equally divided among them share and share alike," and there is nothing in the structure of the devise to justify the extension of the signification of the word children beyond its proper meaning as denoting offspring in the first degree.

N. Y. STATE REP., VOL. XXXII. 91

It would be a forced construction to interpret the meaning of the phrase "my children then surviving," so as to include grandchildren, and especially so when such construction would permit the grandchildren to share equally with children, which is quite

unnatural.

It is to be observed that in all the cases where the signification of the term children has been extended beyond its precise meaning the construction has been aided by the context of the instrument which cannot, as we have seen, be invoked in this case.

Thus in the Matter of Paton, 111 N. Y., 487; 19 N. Y. State Rep., 67, it was said in the opinion: "When the testator directs a division 'equally among the children, he may then have or those who may be legally entitled thereto,' he must be regarded as contemplating the possibility of there being other children entitled to share than his immediate offspring. The word 'those must refer to children in order to have a meaning, and refers to the children or issue of sons and daughters."

In the case of Prowitty. Rodman, 37 N. Y., 58, one of the propositions laid down by the court of appeals was "that the term 'children' may include issue however remote, and will be held so to include whenever the reason of the thing demands it."

All of the reported cases and the elementary works are in harmony upon this question, and they all inculcate the same doctrine, that the intention of the testator as collected from the entire will must prevail in its construction.

In obedience to such principle we think the intention of the testator in this case was plainly manifested, and that his children living at the death of his widow took the remainder in the house and lot, to the exclusion of his grandchildren.

The decree of the surrogate should, therefore, be affirmed, with costs to be paid by the appellants.

BARNARD, P. J., and PRATT, J., concur.

ELLEN M. QUINN, App'lt, v. MARGARET MCDONALD, Resp't (Supreme Court, General Term, Second Department, Filed July 18, 1890.) 1. REFERENCE-LONG ACCOUNT.

Where the only account involved is between persons not parties to the action or to the mortgage in question, which is claimed to have been given for the indebtedness between such persons, for the purpose of determining the amount due on the mortgage as against the surety, it is not an account between the parties and does not make the action referable.

2. SAME-FORECLOSURE-FRAUD.

Where the answer in an action of foreclosure denies the execution of the bond and mortgage; alleges that they were given to secure a loan which was not made; that plaintiff is a fraudulent vendee thereof, and that his brother fraudulently inserted an assumption clause in the deed to defendant, the plaintiff has a right to a trial of these issues in the usual way and the action is not referable.

APPEAL from order granting a reference.

Action to foreclose a mortgage alleged to have been given by Hugh McDonald to John Lynch to secure moneys due to Michael J. Murphy and Jonas C. Quinn from Edward McDonald.

Under proof that the trials of the action will necessarily involve an examination of long copartnership accounts between Quinn, Murphy and McDonald, covering several years and involving many thousands of dollars and an immense number of items, documents, books, etc., the defendants moved to refer the action and all of the issues therein, which motion was granted.

Pascal T. Southern, for app'lt; Benner & Benner (Henry C. Willcox, of counsel), for resp't.

BARNARD, P. J.-The action is not one in which a referenc can be compulsorily ordered. The complaint sets out the execution of a bond and mortgage to one John Lynch, by Hugh McDonald, to secure moneys due to Michael J. Murphy and Jonas C. Quinn, from Edward McDonald, under a contract he had with the United States government. The premises are now owned by the defendant, Margaret McDonald. The only account involved is one between Murphy and Quinn on one side and Edward McDonald on the other, to determine the amount due on the bond and mortgage, as against the surety. This is not an account in the ordinary acceptation of the term between the parties, and is not referable. Camp v. Ingersoll, 86 N. Y., 433; Untermyer v. Beinhauer, 105 N. Y., 521; 8 N. Y. State Rep., 1.

Assuming the action to be referable by motion as only involv ing the examination of a long account, it should not be referred under the issue made by the pleadings. As has been stated, the complaint avers the execution of a bond and mortgage to secure moneys due from Edward McDonald to Jonas C. Quinn and Michael J. Murphy. The answer denies the execution of a bond and mortgage and alleges that the same was given to secure a loan which was never made, and that the plaintiff is a fraudulent vendee of the mortgage. The answer further avers that in the deed of the premises from Hugh McDonald to Margaret McDonald, a brother of the plaintiff fraudulently inserted an assumption of this mortgage, and the answer claims to cancel the mortgage and strike out this clause. The only real issue, therefore, is of the execution of the bond and mortgage. The charges in respect thereto involve questions of fraud and breach of faith.

The circumstances surrounding the transaction, as stated in the complaint, are not without need of explanation of the bond and mortgage as stated therein. The bond and mortgage was given to one John Lynch. It was given for $5,000, payable in the usual form. It contains no reference to the same being given to secure a debt of Edward McDonald; why it was not given direct to the creditor, and why it was assigned to them rather than the plaintiff, are questions to be answered by the plaintiff upon the trial. The plaintiff has a right to have these issues tried in the usual way. Did the plaintiff, or those acting for her, insert an averment in Margaret McDonald's deed? Was this done by an attorney of this court? The plaintiff is to be compelled to answer these questions under the pleadings, and should have a trial in the special term of this court, or by issue to be framed for a jury.