Kimball v. Story

Gray, J. The general rule, prevailing in equity as at law, that if a legatee dies after the making of the will and before the death of the testator, the legacy lapses, is not affected by the insertion, after the name of the legatee, of the words “ his heirs, executors, administrators and assigns,” unless a declaration that the 'egacy shall not lapse is superadded; for those words, according to then- uniform and well established interpretation, only express the intention of the testator to pass the absolute property in the estate, real or personal, to the legatee ; “ heirs, executors and administrators,” taking by representation only, cannot be entitled to anything to which the person whom they represent never had any title; and when thé word “ assigns ” is also used, any other construction would make the bequest inconsistent and uncertain, inas [385] much as “ assigns ” could only be those to whom the legatee had conveyed in his lifetime, while “ heirs, executors and administrators ” could take only by succession by reason of his death. Sibley v. Cook, 3 Atk. 572. Maybank v. Brooks, 1 Bro. Ch. 84. Gittings v. McDermott, 2 Myl. & K. 69. Shuttleworth v. Greaves, 4 Myl. & Cr. 35. In re Porter's Trust, 4 Kay & Johns. 188. Ballard v. Ballard, 18 Pick. 41. Dickinson v. Purvis. 8 S. & R. 71. Wright v. Trustees of Methodist Episcopal Church, Hoffm. Ch. 202. Davis v. Taul, 6 Dana, 51. In the cases of Gittings v. McDermott, Porter's Trust, and Wright v. Trustees of Methodist Episcopal Church, the legacy was sustained solely because it was in the disjunctive to the legatee named “ or his heirs; ” and in Davis v. Taul, because the original legacy to him “ and his heirs ” had been reaffirmed by a codicil made after his death, and showing upon its face that his death was known to the testator. The only exception, created by statute, to the general rule, is where a devise or bequest is made “ to a child or other relation of the testator; ” and includes only relations by blood, and not connections by marriage, even a husband or wife. Gen. Sts. c. 92, § 28. Paine v. Prentiss, 5 Met. 396. Esty v. Clark, 101 Mass. 36. Dickinson v. Purvis, 8 S. & R. 71. The necessary conclusion is, that, the legatee being only a step son of the testatrix, the legacy lapsed by his death. To hold otherwise would be to allow the general rules of law as to the construction and effect of wills to be defeated by a conjecture of what the testatrix might have intended if she had contemplated the contingency (which there is nothing to show that she did) of the legatee’s dying before her, and thus to make a new will for the purpose of carrying out a presumed intention not expressed as the law requires. The facts that the testatrix called the legatee her son and had long lived with him as such, and that a considerable part of the property bequeathed to him had come to her from his father, cannot affect her absolute power to dispose of her property, or the rules of law by which her testamentary dispositions are to be governed. Decree for the heirs at law and next of kin.