Comfort v. Mather

The opinion of the Court was delivered by Sergeant, J. The cases cited by the counsel for the defendants in error are too strong to be got over. They show that the point has been repeatedly and uniformly decided, in conformity with a principle of law, which is said to have been borrowed from the civil law, that every legacy implies a condition that the legatee shall survive the testator, and that where the legatee dies in the lifetime of the testator the legacy lapses. The legislature of this state has, by the Act of 19th of March 1810, corrected the rule where the legacy is in favour of a child or other lineal descendant of the testator, declaring that in such case it shall survive to the issue: but they have not thought fit to go further, and in the present case the bequest is not to a child or lineal descendant of the testator, and therefore remains subject to the prior law. It can make no difference that the testatrix knew the legatee was dead, or intended the children of the legatee should have the benefit of it. The same circumstances occurred in the case of Sword v. Adams, (3 Yeates 34), but the parol evidence was held inadmissible. Its being in the case stated here, can make no difference. The legal construction of a will in writing cannot be explained or altered by the parol declarations of the testator, of his understanding of the meaning of the will, or of his intentions to do something else. It is not a case of ambiguity, or mistake of the name of the legatee, or of circumstances such as the law allows to be controlled by parol evidence. The testatrix knew that the legatee was dead, and yet chose to leave the will as it was, to its legal interpretation and consequences, without adopting the measures necessary to effectuate her alleged intentions. Judgment affirmed.