4 Edw. Ch. 664 | New York Court of Chancery | 1846
The question is, whether the legacy given to Mary Phelan lapsed or belongs to her children, as legatees in her place?
I take it that this will was drawn by a professional hand. There are various indications of the fact about it; and it is the more surprising that such words should have been employed as are here used to express the meaning of the testatrix, which must have been very plain and simple, one way or the other, and very easily understood by a draughtsman.
If she meant to make her niece the sole legatee of the six thousand dollars, why were the words “ and to her heirs” superadded? for, surely, they were unnecessary and must be regarded as mere surplusage if such was her intention; and, on the other hand, if her intention was to give the legacy to her niece and in the event of her death then to her children or next of kin in her stead, why was not the will so written or some other words used which would have expressed that plain and simple meaning—merely changing the copulative and into the disjunctive or would have gone far towards establishing that meaning : Gettings v. McDermott, 2 My. & K. 69. But, as the words stand in this will, the court has to deal with them in the best way that it can. If the sixth clause in the will which contains this bequest is alone to be looked at, it is very clear that the legacy must be deemed to have lapsed: the words “ and to her heirs,” in their strict sense, not being substitutional, but
In my opinion the complainants are entitled to the legacy according to the showing of their bill; and the demurrer must be overruled, with costs.