Lee v. Gay

Morton, J. We think, as to the persons entitled to share under the sixth clause of the will, this case must be governed by Howland v. Slade, ante, 415, and that the nephews and nieces who [425] survived the testatrix, and the issue of those who died between the making of the will and her. death, are therefore entitled to the legacy given in said clause. The attempt has been made to argue that, because in the fourth clause the testatrix gave to the children of John C. and Harriet P. Lee each a legacy, with the provision that the issue of any deceased child should inherit the parent’s share, and because in the eleventh clause similar language was used in relation to a contingent legacy to the daughters of Edmund B. and Martha Ann Willson and the grandchildren of said John C. and Harriet P. Lee, and because she omitted a like provision from the sixth clause, that the testatrix did not intend that the issue of any nephews or nieces dying after the making of her will should take under it. But it does not appear that the Lees, or the Willsons, or their children or grandchildren, were relatives of the testatrix, and unless, therefore, these provisions had been inserted, if any of the legatees had died before the testatrix the legacy given to such would have lapsed. Fisher v. Hill, 7 Mass. 86. Ballard v. Ballard, 18 Pick. 41. No such provision was necessary in regard to the nephews and nieces. Pub. Sts. c. 127, § 23. The testatrix seems to have used it when it was required, and to have omitted it when it was not. Decree accordingly.