Young v. Robinson ( 1840 )

Archer, J.,

delivered the opinion of the court.

It has been conceded, that anterior to our acts of Assembly of 1810 and 1832, the devise in this case would pass the residuum of the estate, to the children of John and William, who survived at the death of the testator, in exclusion of the descendants of such of the children of John and William, as may have died during the life time of the testator. It is presumed, that those persons of the described class, who survived the testator, were the only objects of his bounty, so that if an individual, answering the description of the bequest, who, if living at the death of the testator, would have been entitled to participate m the bequest, happen to die before him, that event, from the above presumption, -will not occasion a lapse of any part of the fund. 1 Rop. 333. The case therefore presented, is not the case of a lapsed legacy; or the failure of a legacy to take effect by the death of the legatee; there being persons at the death of the testator, answering the description, who by the established rules by law, are the objects of the testator’s bounty.

It is said however, that the acts of 1810, ch. 34, and 1832, ch. 295, operate upon this case, and will enable the descendants of the children of John and William, -who died before the testator, to come in for the share their fathers would have been entitled to, had they lived.

The act of 1810, ch. 34 sec. 4, applied solely to the cases where legacies would have lapsed, or failed to take effect by the death of the legatee, where such legatee was named in any last will or testament. The recital of the supplement of 1832, shows that doubts were entertained whether the act extended to any case of legatees, unless they were specially named, and to remove the doubts, it enacted that all devisees and legatees shall be within the meaning of the act of 1810, -who are, or shall be either actually and specially named as legatees or devisees, or, who are, or shall be mentioned, described, or in any manner referred to, or designated, or identified, as devisees or legatees, in and by any last will and testament.

It is supposed, that this latter act makes the case before the court, as there are legatees described in the will, who died before the testator. But we apprehend it was not the design of the Legislature to change or alter any of the existing fules in the construction of wills, but simply, to provide for such cases of legacies and devisees, as by the rules of law lapsed, or failed to take effect, by the death of the devisee or legatee in the life time of the testator. Such a construction by no means renders the act of 1832 ch, 295 inoperative, but leaves a class of cases for it to operate upon; as where the legatee is not named, but only described or referred to, as was the case of Castledon & Turner, 3 Atkins 257, referred to in Ward on Legacies, 90.

The case before the court, it is true, is one in which the legatees are not named, but described; but still the legacies are not of that class, intended' to be provided for by the acts. They are not lapsed, legacies which fail to take effect, and are merged in the estate, but which pass to the persons answering the description in the will,, at the death of the testator.

decree affirmed.