Two recent cases illustrate a trend in the judicial construction of the word "issue" in wills which seems to be divergent from the view expressed in the older cases.
In Re Thompson's Estate there was a bequest to A and B for their lives and at the death of the survivor "one half thereof to the living issue of each daughter, if there then be such issue of each, whether of the first or succeeding generations." At the death of the survivor there were six children of A and two grandchildren, issue of living children, and there were two children of B and one grandchild, the issue of a living child. It was held that the property should be distributed among the living children and not per capita among all the living descendants of A and B.
In Dolbeare v. Dolbeare there was a bequest to "issue" to "take the share to which their mother would have been entitled had she been living." It was held, contrary to the older view, that "issue" although used in conjunction with the word "mother" did not mean "children," but rather meant "descendants."
WILLS - CONSTRUCTION - MEANING OF "ISSUE" IN TESTAMENTARY GIFTS,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol37/iss4/10