34 N.J. Eq. 419 | New York Court of Chancery | 1881
The testatrix, who died in 1879, by the third section of her will, among other bequests, made the following:
“To Pendleton Hosack, of New York city, two thousand dollars, with the request that, upon his death, he leaves the same, in equal portions, to Mary Harvey, Rebecca Harvey (daughters of Mary Harvey), Mary Rogers and Emily Royers (daughters of Emily H. Rogers.”)
By the fifth, she provided as follows:
“ Fifthly. If, by reason of any omission or failure in this my last will to-provide for contingencies occurring by death or otherwise, or if for any cause any of the devises and bequests hereinabove made should lapse, or fail to vest in any of the persons, corporations, or associations hereinabove named, it is my will, and I hereby direct, that all and every of such devises and bequests shall revert to and form part of my residuary estate.”
Pendleton Hosack died before the testatrix, and the question is presented whether the above legacy to him therefore lapsed and fell into the residuum of her estate, or whether, on her
“To them, their heirs and assigns forever, hoping and believing that they will do justice hereafter to my grandson, Hiram Van Duyne, to the amount -of one-half of said homestead farm.”
And the complainant insisted that the words quoted created a trust in his favor for one-half of the homestead farm, after the death of James and Hetty. The third clause contained a devise in similar terms. The chancellor (Green), in an opinion in which the subject was fully discussed, and the English authorities considered, declined to adopt the rule of the English chancery, and held that no trust was created in favor of the complainant. The court of errors and appeals, however, reversed that
“All the rest and residue of my estate, both real and personal, whatsoever and wheresoever, I give, devise and bequeath to John Hartshorne, of Newark, New»Jersey; Eliza B. Hosack, of New York city ; Emily H. Bodgers, of New York city, and Lucy E. Chapman, of Bahway, New Jersey, in equal shares ; to them, their heirs and assigns forever; but in case John Hartshorne and Samuel H. Hartshorne, or either of them, should not be living at the time of my decease, then I direct that the share they would have had, if living, should descend to and vest in his children per stirpes.”
By the third clause of the will, a legacy of $2,000 is given to John Hartshorne. He died before the testatrix, and the question is, whether, under the provision of the residuary clause, that in case he should die before the testatrix, the “ share he would have had, if living, shall descend to and vest in his children,” the legacy goes to his children. The fifth section of the will, above quoted, evidences the intention of. the testatrix on this subject. It declares that it is her will, and that she directs that if any of the bequests thereinbefore made (of which this is one) should lapse or fail to vest in any of the legatees, it shall fall into the residue. And without that provision such would have been the consequence of the lapse. A lapse of the legacy in question is not prevented by the provision against lapse in the residuary clause; for that provision clearly has no reference to the legacies of $2,000 each given to John and Samuel H. Hartshorne in the third clause, but only to their shares of the residuum of the estate.
It will be decreed that Mary and Rebecca Harvey, and Mary Biddle (formerly Rodgers) and Emily Rodgers are entitled in equal shares to the $2,000 given to Pendleton Hosack, and that the legacy of $2,000 to John Hartshorne lapsed and fell into the residue.