The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-08-01

surrogate's Court.
Before A. w. Bradford, Esq.
WHEN BRQUBsr LAPsEs-NTHRzsrING DECISION
OF THE COURT.
july 81 The Surrogate made the following decision
yesterday In regard to the hpsing OF bequest:-
IN s,.s H Mas q ne Estate Of George Reed-rhe testa
V thousand dollars trust for his neice Jane Ann Fow.
er and by 60 'iS .in lieu and instead of the Of
81 geo part OF the ooo," given in the WILL he sub
mortgage Of five Thousand dollars upon the devised pre-
mnes should be paid out II the personal estate NY OBI.
Revised Statutes that mortgages not charge upon the
general estae but the devisse must take the cayal cum
direction In the will The testamentary instrument in the
present instance, contains on that subject nothing more
Than general provision that al the debts sums Of
money! which the estaor should at tho time of his
death, be paid by the executors that is merely
the usual dire con to the payment of debts and
deyse csnno, therefore have either the principal or the
interest at the time Of Mr. Reeds decease paid
out Of his estate The land devised must bear its own
ration follows LAS to all the rest residue and
maiDder Of my estAte, Of whatsoever nature, to be
and personal, order and direct that the same, when
converted into cash. be divided by my executors Into two
shares Of the said residue Of my estate give and be-
queath unto my raid sister, Mrs. Ann Henderson for her
and benefit for and during the term Of her natural fe
and upon her decease give and beqneatn the sad one
equal half part share Of the said residue Of my estate
the tad John Henderson and Jane Henderson,
equally dviasd between them share and share alike and
their respective ISSUE such issue taking the share To
which the parent II living, would have been entitled but
In either the raid John Henderson Jane Ann Hen
derson should die before their mother without leaving
lawful Issue living then the survivor TO take the part
John 10th died before The teststorths former in 1850
and the latter in 1862 without issue The point arises
whether the beques! any portion Of 1t has apsed The
gift Is Of life estate to the mother with remainder TO her
two children The children to take, tenants In
common, share share alike" and not j,n tenants
The general rule that by the death OF egatee before the
tesator his interest under the will apses relates only
the interest of the party 30 DYING and where there are
oneI nters gaeG Oh nmea % n o. .ae oeceesea
the event upon which the eeator has made his bounty
contingent takes place. would seem 70 be indifferent
whether In the tesators lifetime after his death,
provided the party designed to be benefited be living
Where life tenant dies before the teetstor but the party
tenant only the life estate the RENAL
let in the immediate right TO the gift the moment
the will takes effect (Mowat Vs. Cana: Paige, 1913
The extinction of the first interest carried out Of the estate
only acceeIaes the right of the second aker am
therefore that both Mrs Hendersons children had
living at the death Of Mr. Reed they would have been
titled to their respective shares of half residue One
Of hem however, died before the testaor and his share
spsed unless we can find some provision reaching this
which the limitation over would be good, not
witnstanong the event which II depended occurred
this remainder the children, ste be equally divided
between them, share and share alike, and TO their
been But
died without ISSUE tue provision for issue does not
ply. "But," the resduary clause proceeds, Gin case
eli her the raid John Henderson Jane Ann Henderson
should die before their mother, without leaving lawful
rrse living then the survivor lake the part share Of
the dying" Here two conditions. John died
withou leaving lawful issue living al that condition
fulded but he did not die before his mother and that
condition not fulfilled The sister now claims Johns
Tin
from the named In the w-that Is, the testAtor de-
clared she should take Johns share he died before his
his mother This be- The will written II ID
possible, indeed think probable that II the tesla had
would have provided for it, in the way this claim surv
vorehp suppoees but The court rule Of
sructon on conjecture, or against the pAp import Of
terms. will clearly expressed must receive the inter
alton which the icompe and events NOT
Contemplated d be aided BY Judicial insrposuon-
Again there is no will better settled than tina, any cond
tonal limitation Of legacy upon some specified
event. condition or circumstance akes effect only npon
caAes viii illustrate this view. In Thunderstorm Stan
ton, vesey and Beard r. as5 there gin the
but be died before the legacy was limited over 70 other
benenciares. Joseph completed his apprenticeship and
tuted mat disappointed the event OF death after
completing the apprenticeship not being satisfaction oil
the condition Of before that event. See Doe w Bra
Sarah Counse attained the age Of ~enty one
and then TO her absolutely but In she died under
twenty leaving children then In rus. for them Sarah
arrived at married and died before the
leaving children and was held that the children did
take, the condition applying 70 death under and not
twenty Lord Kenyon, said "If this event had
occurred 10 the estarix most probably she would In
provided for H. and given the money the children but
o. she has not done cannot make will for her -
In Williams Jores, ! Russell, G. K 6ls, there
bequest 10 Thomas Williams, II he should be living the
Sssn Of the WI. soS y then :. %
at the death OF the tcstator's wife, and Lord clifford
decided that the limitation to his could not therefore
take effect and the father having diet before the estaor
The legacy apsed The principle OF these that BY the
death Of legsee before the testaior the beques apscs
and that gin only take effect upon the coniin
ungency designated In the will, sell recognized In the
law eleme ptary doctrines have cited authorities mainly
toshow the application Of the will BY other Judges Its
dnary supposed that apec defeats the tesAtors nien
utn. In sense II certainly Goes, for the de<gn o
benehtng the leg tee personally Ia utterly defeated by
his death. The law proceeds the assumption that all
bequess Intended for tho individual named, and for
other and no DO dead whom the estaor dos aud
take IN bis stead, the gin falls unless the con
tpeepcy has been provided for. therefore OF the
opinion that the share OF John Henderson In half Of the
fore the iesator, and that bis sister not entitled 70 By
survvorshp because the event which the will declares
the survivor should take occurred The testAor
lived several years after the eeaih Of Mr Henderson aud
her He knew Of thtir decease, and bound 10
preeume be know the Law this subject, and sats
ned should take m course. The gin Of the other half OF
the rcsidue Of his estae 70 his niece Mrs Norman also
apeed In bis lifetime, by OF her death and the
sonabe presumption that he cognixant OF the effect
OF hese circumstance, and content that the laps I'd
lesaces should 10 the benefit Of his OF kin who
the effect OF the rule Of Law which IL my duty apply
and there be sentence OF distribution OF three four
Of the estate among the four neoes OF the teststor his
nearest next OF lin, per cdpiid
What India Has Gained by the mutiny-Ths
0mseU a. DuIdo Rere1ye 81 lluoAu Victoria