| N.Y. Sup. Ct. | Nov 10, 1888
I have gone over the briefs submitted by the learned counsel carefully, and I am satisfied that the learned referee was right. His opinion is quite satisfactory, and needs but little of additional comment. The-main argument against the referee’s conclusions fails when we look at the-two points upon which the idea of an intent contrary to these conclusions is advanced. The use of the word “respective” was simply to emphasize the-previous words, “in equal shares,” and to impart perfect clearness thereto. Thus the residuary clause is to be treated as though Mr. Mount had devised one-fourth of the residue of his estate to each of the persons named, and to-his other heirs and assigns. Nor is a contrary intent evinced by the provision for his nephew, Bichard H. Mount. Where a person makes a will to which well-settled rules are applicable, it is impossible to glean an intent at variance with those rules from the happening of an event which probably never was-contemplated. It is clear to my mind that as the residuary devisee of one-fourth of the residue was not a child or descendant of the testator, and died, before the testator, such one-fourth, under the statute and the cases construing it, did not vest in the surviving children of the devisee, but lapsed. Nor-did such one-fourth fall into the remaining residuary estate. This is a residue of a residue, and not the lapse of a specific devise. The authorities are-clear that a part of the residue which lapses will not accrue in augmentation of the remaining parts as a residue of a residue, but devolves as undisposed of. Beekman v. Bonsor, 23 N. Y. 312; Skrymsher v. Norihcote, 1 Swanst. 570, and see Kerr v. Dougherty, 79 N. Y. 346. It follows that the one-quarter of the lapsed residue goes to the heirs at law of the testator, not because of any particular intent on the part of the testator, but, as was said in Van Kleeck v. Dutch Church, 6 Paige Ch., 600" date_filed="1837-08-01" court="None" case_name="Van Kleeck v. Ministers of the Reformed Dutch Church">6 Paige, 600, upon the principle that the heir is entitled to every part of the estate that the testator has not shown a clear intention of giving to some other person, who, in the event that has occurred, is. capable of taking the estate thus intended for him. The exception should, therefore be overruled, and the report confirmed. -