4 Bradf. 324 | N.Y. Sur. Ct. | 1857
The testator died March 17, 1855: By his will, he bequeathed twenty thousand dollars in trust for his niece, Jane Ann Fowler; and by a codicil, “ in lieu and instead of $11,500, part of the $20,000” given in the will, he substituted the devise of a house and lot. It is contended that a mortgage of five thousand dollars upon the devised premises should be paid out of the personal estate. My opinion does not agree with this view. The provision of the Revised Statutes that mortgages are not a charge upon the general estate, but the devisee must take the land cum onere, is never disturbed unless by some clear and express direction in the will. The testamentary instrument, in the present instance, contains, on that subject, nothing more than a general provision that “ all the debts and sums of money” which the testator should owe at the time of his death, were to be paid by the executors. That is merely the usual direction as to the payment of debts, and shows no signs of an intention to modify the statutory rule. The devisee cannot, therefore, have either the principal, or the interest in arrear at the time of Mr. Reed’s decease, paid out of his estate. The land devised must bear its own burdens.
The residuary clause of the will, under consideration, is as follows: “As to all the rest, residue and remainder of my estate, of whatsoever nature, to be converted into cash, out and out, as hereinbefore directed, real and personal, I order and direct that the same, when so converted into cash, be divided by my executors into two equal parts or shares; and one of the said equal parts or shares of the said residue of my estate, I give and bequeath unto my said sister, Mrs. Ann Henderson, for her use and benefit, for and during the term of her natural life; and upon her decease, I give and bequeath the said one equal half part or share of the said residue of my estate unto the said John Henderson and Jane Ann Henderson, children of my said sister, Mrs. Ann Henderson, to be equally divided between them, share and share alike, and to their respective issue, such issue taking the share to which the parent, if living, would have been entitled; but in case
The principle of these cases, that by the death of a legatee before the testator the bequest lapses, and that a gift over can only take effect upon the contingency designated in the will, is well recognized in the law as elementary doctrine. I have cited authorities mainly to show the application of the rule by other Judges. It is ordinarily supposed that a lapse defeats the testator’s intention. In one sense it certainly does, for the design of benefiting the legatee personally is utterly defeated by his death. The law proceeds on the assumption that all bequests are intended for the individual named, and for none other; and if he be dead when the testator dies, the gift falls, and no one can take in his stead, unless the contingency has been provided for. I am therefore of opinion, that the share of John Henderson in one half of the residue of this estate, lapsed by reason of his decease before the testator, and that his sister is not entitled to it by survivorship, because the event on which the will declares the survivor should take, never occurred. The testator lived several years after the death of Mrs. Henderson and her son. He knew of their decease, and I am bound to presume he knew the law on this subject, and was satisfied it should take