The testator, Stephen H. Tuttle, bequeathed to his son, Hiram A. Tuttle, one twelfth part of his estate. Hiram died during the lifetime of his father, and after the execution of the will, leaving him surviving, his sons Otto B., OsroB. and Fred B., who are still living.
Hiram died intestate and indebted to his father, and his estate is still indebted to the estate of his father, in the sum of $777.55, after applying his real and personal estate to the payment of his debts. The executors of Stephen H. Tuttle now ask for a decree on
Under the common law, if the legatee died before the testator, the legacy lapsed. But our statute provides as follows:
“Whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate” (2 R. S., 66, §52).
It is evident that this change in the common law was made for the benefit of the descendants of the deceased legatee. Under the common law, the legacy thus lapsed fell into the residuary fund, if any, and might pass to those who had no natural claim upon the testator’s
If the intention of the legislature had merely been to save the legacy to the estate of the deceased legatee, that result could have been obtained by simply providing that such legacy should not lapse on the death of the legatee. It would then become a part of the assets of his estate, to be distributed by his representatives to creditors and next of kin. But there are no.words in the statute indicating that any benefit was intended to be conferred upon creditors. The legacy never vested in Hiram, nor in his estate, never formed any part of his estate ; his representatives had nothing to do with it, but upon Ms death and the death of the testator it vested immediately in his children. They did not take the legacy through or from him, but in his place and stead.
If the legislature had passed this statute for the benefit of the creditors as well as the children of the deceased legatee, they would not have restricted the application of the statute to cases where the deceased legatee left children or other descendants.
It is conceded by counsel upon both sides that, so far as this question is concerned under the N. Y. Statute, there is no reported case construing its meaning; but some light has been thrown upon the subject in the discussion of similar statutes of other states.
I will first consider the English statute, under which the case cited by the counsel for the executors arose.
This statute saves the legacy from lapsing under the common law, and provides that it shall take effect as if the legatee had survived the testator,—in other words, vest in the legatee notwithstanding his death pre
The Massachusetts statute upon this subject is as follows:
“Where a.devise of real or personal estate is made to a child or other relation of the testator, and the devisee dies before the testator, leaving issue who survive the testator, such issue shall take the estate so devised in the same manner as the devisee would have done if hePage 56had survived the testator,” etc. The words “in the same manner,” in this statute, correspond to the words “as if,” in our own statute. It seems to me they are identical in meaning. They are certainly no more favorable to the position of the executors, than the words “as if,” in our statute.
In Paine v. Prentiss (5 Metc., 396), the testatrix devised real estate to her nephew in trust for her niece, and to her heirs and assigns forever, the income thereof to be paid to the niece during her life. The niece died before the testatrix, leaving a daughter who survived the testatrix. ' It was held that the daughter took the estate in fee and discharged of the trust. Justice Hubbabd, writing the opinion, says : “Thedefendant’s title then flows directly from the testatrix by force of the statute, which preserves the legacy, and substitutes the child as the legatee, in place of the parent, and discharged of the trust.”
The Horth Carolina statute reads as follows: ‘ ‘ When any person, being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed for any estate or interest, not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any such issue of such person shall be living at the death of the
In Newbold v. Prichett (2 Whart., 46), the Supreme court of Pennsylvania held, under a statute similar to our own, that the statute was intended to give a benefit to the issue, and not to confer any right upon the legatee or devisee, to control the devise or legacy; that where A willed real estate to her son B. and then B. willed all his estate to his children, and died before A., leaving children, the children took under the will of A. and not under the will of B. Sergeant, J., says: “It is plain that it was for the issue only, the law was passed.”
I am not aware of any decision in which the views of the executors upon this question have been sustained__
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Under this statute, has recently been determined in the negative the question whether the exercise, by a testator, of a limited power of appointment, was such a devise or bequest as was saved from lapsing by the death of the appointee before that of the donee of the power (Holyland v. Lewin [Ct. App., Ch. Div., March 1884], 32 Week. Rep., 443). In that case, A. having devised property in trust for such of his children or issue as his wife, by will or codicil, should direct or appoint, A.’s widow made a will appointing the real property, in pursuance of the power, to the use .of certain of his children, some of whom died in her lifetime.