Clark v. . Cotton ( 1832 )

Hendersd!N, Chief-Justice,

after stating the facts above mentioned, proceeded: As to the legacy to,Martha Barrow, there being no testimony, if admissible, to prove the identity of the person intended, and the question being presented on the will and facts before stated; it is but common learning to pronounce the bequest to be void for uncertainty. There is no legatee designated by name, or by any other description. The bequest is therefore void, and the case is to be considered as if it had never been made. It is property undisposed of. and is to be taken to pay general legacies, and if not needed for that purpose, it sinks into the residuum..

Upon the other clause of tlie will, it being as yet entirely uncertain, who is the Elizabeth Hunter, intended by the testatrix, it is unlike the case under the fifteenth clause. For here a legatee capable of taking, may yet appear. The ambiguity arises from the fact, that there are many answering to the description, and it may be shown by parol evidence, which of them the testatrix meant. The legacy then,- is not property undisposed of, but property given to a person who does not yet appear. It must therefore, be kept for her, and if after a reasonable time, it bo not claimed by the legatee, it goes to the sovereign as the trustee of-all derelict property. In this state, the Trustees of the University have succeeded to this right of the sovereign, and at a proper time, they can claim the legacy.

Per Curiam. — Direct accordINgut.