Dane v. Walker

109 Mass. 179 | Mass. | 1872

By the Court.

This is a very plain case. The designation by the testator in his will of “ my brother Timothy S. Dane ” clearly described and identified the person who had been commonly called by that name, and who was the son of the testator’s mother; and is not defeated by the testator’s ignorance of his illegitimacy. By the terms of the first legacy, Timothy took a vested remainder after the death of Mrs. Arkerson in personal property, which upon his own death, leaving an estate of less than five thousand dollars in value, passed to his widow. Gen. Sts. 5. 94, § 16, cl. 6. The claim of the plaintiff and his sister, as next of kin of the testator, is therefore wholly unfounded.

Charles D. Wallace being still alive, the question who will be entitled to the other legacy after his death cannot be now decided.

As the plaintiff in this bill asserts for his own benefit a claim which has no plausible foundation to the property as to the disposition of which he asks the instructions of the court, the decree must be that he pay Timothy S. Dane’s interest under the first legacy

To Ms widow, with eos*-s.