Phillips

Jun 13, 1903
Reporters:
, ,
Before:
Douglas
Douglas, J.

(1) The court is of the opinion that the provision of clause fifteen — “in case any whom I have heretofore named in this instrument shall die before myself then the bequest to said beneficiary shall determine” — applies to the persons named as residuary ‘legatees in clause fourteen, but does not operate to create intestacy with‘respect to the share of such legatee. It is not to be presumed that the testatrix intended a lapse of such share and the intention is also emphasized by repetition that if the persons named in the will do not survive the testatrix, and cannot take in person, their heirs shall not take by substitution. The effect, then, of the fourteenth and fifteenth clauses taken together is to eliminate from the residuary clause the name of any beneficiary who should not survive the testatrix, as if the gift of the residuum had been to the three persons named or such of them as should survive the testatrix. We are of the opinion, therefore, that the residuary estate passed to Mary Grinnell and Annie Mooney.

*255 Joseph Osfield, Jr., and James M. Gilrain for parties.

The word “heirs” in the residuary clause seems to have been used as a word of limitation suggested perhaps by the ordinary practice when real estate as well as personal property is included in a devise.