Elliot v. Fessenden

Walton, J. This is a suit in equity, instituted by the executor of the last will and testament of Sarah II; Jenks, asking the court to determine the construction of the will, and whether certain legacies therein mentioned lapse or go to the lineal descendants of the legatees, the legatees themselves having died before the testatrix. Generally, if a legatee dies before the testator, the legacy lapses. But to this rule there is an exception in favor of relatives. "When a relative of the testator, having a devise of real or personal estate, dies before the testator, leaving lineal descend [205] ants, they take snob estate as would have been taken by such deceased relative, if he had survived.” 11. S., c. 74, § 10. The word "relative,” in this section of the statute has already been defined by the court. It means one connected with the testator by blood ; a blood relation. It does not include within its meaning one connected with the testator by marriage only. So held in Keniston v. Adams, 80 Maine, 290. And such is generally held to be its meaning, when used in similar statutes, although it may sometimes be used in a more extended sense. Esty v. Clark, 101 Mass. 36. Such being the law, the conclusion is inevitable that the bequests to John Patten and Marcia Gr. Lord, mentioned in the will of Sarah H. Jenks, are void. They both died before the testatrix. And being connections of hers by marriage only, they were not relatives within the meaning of the law, and their legacies lapsed; and the residuum of the estate, after paying all other legacies and the expenses of administration, must be paid to the heirs at law of the testatrix. Costs, including reasonable counsel fees, are allowed to all the parties to this suit, to be paid by the executor out of the assets of the estate, and charged in his administration account. Decree accordingly. Peters, C. J., Virgin, Libbey, Haskell and Whitehouse, JJ., concurred.