Farnell v. . Dongan

CONNOR, J. Nellie Bilbro Poole, the sole devisee and legatee in the last will and testament of her husband, Tallie A. Poole; having predeceased him, both the devise of the real property and the legacy of the personal property referred to in the will lapsed, unless the provisions of C. S., 4166, are applicable to the facts in this case. Otherwise, the real property devised to her in the will descended to the heirs at law of the testator, and the personal property bequeathed to her must be distributed among his next of kin. In that event, the defendants Gladys H. Dongan and 0. L. Holden, the children of Nellie Bilbro Poole, by a former marriage, would not be entitled to either the real property devised to their mother, or to the personal property bequeathed to her, in the will. Their rights in and to the property, if any, are dependent upon the statute. C. S., 4166, is as follows: “Unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee imtfíl'^fétime. of the testator, or by reason of such devise being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary clause (if any) contained in such will: Provided, there shall be no lapse of the devise or the legacy by reason of the death of the devisee or legatee during the life of the testator, if such devisee or legatee would have been an heir at law or distributee of such testator had he died intestate, and if such devisee or legatee shall leave issue surviving him; and if there is issue surviving him, then the said issue shall have the devise or bequest named in the will.” Nellie Bilbro Poole, wife of Tallie A. Poole, would not have been an heir at law of her husband had she been living at his death; she would, however, have been a distributee of his personal estate. For this reason, under the statute, the devise in the will lapsed, notwithstanding the provisions of the statute. Not so, however, with respect to the legacy. The devise in the last will and testament of Tallie A. Poole having-lapsed, the real property, which was the subject-matter of the devise, descended to the defendants, who are heirs at law of the testator. The legacy did not lapse. As the legatee would have been a dis-tributee of the estate of the testator had she been living at his death, and had he died intestate, and having left issue surviving her, the per *614 sonal property which was the subject-matter of the legacy must be distributed to such issue. The defendants Gladys H. Dongan and C. L. Holden, by virtue of the provisions of C. S., 4166, are entitled to the personal property now in the hands of the plaintiff for distribution. They are not entitled to the real property which was owned by Tallie A. Poole at his death. The defendants other than Gladys H.- Dongan and C. S. Holden, who are heirs at law of Tallie A. Poole, are entitled to the real property which was owned by him at his death. The statute is not ambiguous. The intention of the General Assembly in its enactment is expressed in language which leaves no room for judicial construction. The distinction found in the common law between real and personal property for purposes of devolution is recognized and preserved. This appears from the use of the words “devise” and “legacy,” “heir at law,” and “distributee.” "Whether this distinction should be abandoned in the law of this State, as having no sound basis under modern social and economic conditions, is a matter for the General Assembly, and not this Court, to determine. The judgment, as modified in accordance with this opinion, is affirmed. Modified and affirmed.