Blackwell v. Scouten

Per Curiam,

The fifth paragraph of the testator’s will and the 12th section of the act of April 8, 1833, appear in Judge Dunham’s opinion. The will was executed on October 26,1887, anda codicil was appended to it on October 12,1895. Allen O. Scouten died in 1896, and the testator died in 1900. In the paragraph we have already referred to herein the testator gave to his son, Allen O. Scouten, the balance of his personal property and his homestead farm containing about 200 acres, more or less, subject to the payment to his wife and heirs of the sums previously mentioned in his will. No change was made in the will affecting the bequest to Allen O. Scouten, after October 12, 1895. If the testator, on the death of his son Allen, had determined to transfer the bequest he had given to him, to his son Charles, he could and undoubtedly would have signified or announced his purpose to do so. But there is no intimation on his part of such a purpose, and not the slightest indication on the part of Allen O. Scouten at any time that he desired to have the bequest the testator provided for him transferred to his brother Charles. Allen O. Scouten left to survive him a widow and one child, Eugene B. Scouten, who is now sixteen years of age, and the plaintiff in this suit.

The 12th section of the act of April 8, 1833, referred to in the first sentence of this opinion, is pertinent to the question involved, and is as follows: “No devise or legacy in favor of a child or other lineal descendant of any testator, shall be deemed or held to lapse, or become void, by reason of the decease of such devisee or legatee, in the lifetime of the testator, if such devisee or legatee shall have issue surviving the testator, but such devise or legacy shall be good and available in favor of such surviving issue, with like effect as if such devisee or legatee had survived the testator, saving always to every testator the right to direct otherwise.” It seems to us that the section we have quoted from the act of April 8, 1833, when considered in connection with the fifth paragraph of the will, furnishes a complete and satisfactory answer to the defendant’s claim. We therefore dismiss the assignment of error and affirm the judgment entered by the learned judge of the court below.

Judgment affirmed.