The decision of the learned judge at Special Term was, in our judgment, clearly right. The death of a legatee prior to the death of the testator causes the legacy to lapse, with the single exception in certain cases of a legacy to a descendant. Allie Smith was not a descendant of the testator and her children are not entitled to the benefit of the statute (2 R. S. 66, § 52).
The plaintiffs’ contention that the testator knowing of the death of Allie Smith intended that the legacy should go to her descendants, and that this intention should control, cannot be upheld. (Dildine v. Dildine, 32 N. J. Eq. 78; Comfort v. Mather, 2 Watts & Serg. 450 ; Lindsay v. Pleasants, 39 N. C. [4 Ired. Eq.] 320; Scales v. Scales, 59 id. [6 Jones Eq.] 163; Maybank v. Brooks, 1 Bro. Ch. Rep. 84.)
It cannot be here claimed that the testator intending to name one party has by inadvertence named another. The most that can be claimed is that the testator, through a mistaken view of the law, thought that a legacy given to one who was dead would pass the legacy to the next of kin of such person. This view, under filíe authorities, would not be sufficient to give the legacy to the person to whom the testator, through his mistaken notion of the law, supposed it would go.
The appellants finally urge that this objection cannot be raised by demurrer to this complaint, but can only be raised to the granting of the relief upon the trial. Upon examination of the complaint, however, if every fact be shown that is there alleged a non-suit must follow. Under such circumstances the court must hold *514Upon demurrer that sufficient facts are not alleged to constitute a cause of action.
The interlocutory judgment must, therefore, be affirmed, with costs, with the usual leave to amend the complaint upon- payment of the costs of the demurrer and of this appeal.
All concurred.
Interlocutory judgment affirmed, with costs, with usual leave to amend complaint on payment of the costs of the demurrer and of this appeal.