Opinion · New York Court of Appeals

Van Beuren v. . Dash

Van Beuren v. . Dash, 30 N.Y. 393 (New York Court of Appeals 1864)

Type
Opinion
Court
New York Court of Appeals
Jurisdiction
New York
Date
1864-06-05
Topic
general

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 396 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 397 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 398 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 399 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES.

Citator

UpLaw has not yet analyzed Van Beuren v. . Dash. The absence of a flag is not a finding that it is good law.

Cited by
40 opinions
VAN BEURENv. DASH,30 N.Y. 393(1864)
JOHN D. VAN BEUREN and wifev. JOHN B. DASH and others.
Court of Appeals of the State of New York.
June Term, 1864
Page 394
M.S. Bidwell,for the appellants.Page 395
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 396

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 397

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 398

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 399

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 400

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 401

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 402

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 403

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 404

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 405

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 406

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 407

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 408

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 409
B.W. Bonney E.S. Van Winkle,for the respondents.Page 410
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 411

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 412

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 413

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 414
INGRAHAM, J.
The main ground upon which the appellants rest their appeal, is that by the statute the devises to those devisees who died before the testatrix, did not lapse, but that the estate so devised, vested in the children or other heirs at law of the devisee, in the same manner, and to the same extent as if such devisee had survived the testatrix.

By the statute (3 R.S. 5th ed. p. 146, § 4) it is enacted: "Whenever any estate, real or personal, shall be devised to a child or other descendant of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate."

The decision of the questions raised, depends entirely on the question, what was meant by the legislature in using the word descendants in this section. The same word is used in both clauses of the section, and the same interpretation must be given to it. If the sisters, and nephews and nieces of the testatrix can be considered as descendants, then the statute would operate, and the estate would pass in like manner to their children or collateral relatives; but if they are not descendants within the meaning of the term as so used, then the statute does not apply.

There can be no doubt but that prior to the passage of this statute these devises would have lapsed, in consequence of the death of the devisee before the testatrix; nor did it alter the rule that the devise was made to the devisee and his heirs. (Pagev.Page,2 Stra. 820;Mowattv.Carow,7 Paige, 328;Bishopv.Bishop,4 Hill, 138.)Page 415And this rule still remains in force, unless it be held that brothers and sisters, and nephews and nieces are descendants of the testatrix.

The meaning of the word "descendant," as given by Webster is, "any person proceeding from an ancestor in any degree, issue, offspring in the line of generation."

The use of the word descendants in a devise has received the limited construction which confines it to issue. InCropleyv.Clare(Amb. 207), a devise of real estate to the descendants of A, c., was held to apply to those who proceeded from the testator's body. InLegarthv.Haworth(1 East, 120), the word descendants was confined to children and grandchildren.

InHaydonv.Willshere(3 Durn. East, 372), the word issue is held to be co-extensive with descendants. (2 Hilliard on Real Property, 573;Davenportv.Hanbury,3 Vesey, 257;Leighv.Norbury,13 Ves. 340.) No case has been cited to us, nor have I been able to find any, where a devise to descendants has ever been construed as meaning any more than issue or lineal descendants. But all the cases confine the term to issue of the body. Nor is there any use of the word in the revised statutes that will admit of any other construction. Thus in the chapter of descents (1 R.S. 751), land descends to the lineal descendants, and afterwards to collateral relatives. So in the third and fourth sections, land descends to the children living, and descendants of such children as shall have died. In the third section it is provided if the intestate dies without descendants, then the inheritance shall go to the father. The sixth section provides that if there is no brother or sister, and no descendants of a brother or sister, the inheritance shall descend to the mother. So in section fourteen of 1 R.S. p. 735. In the case of illegitimate persons dying without descendants, the estate descends to the mother. In all these cases, and wherever else the word is used in connection with title to real estate, I think it is apparent that the legislature meant to confine thePage 416term "descendants" to the issue, and not to extend it to collateral relatives.

But we are urged, even if the construction contended for by the appellants be not admissible, to extend the statute to this case because it is within the equity of the statute, if not within its meaning.

It does not appear to me that we are warranted to adopt such a rule in a case of this kind. The law, until the passage of the act relied on, was the other way. The legislature altered it so far as to give to the issue of a devisee the estate which such devisee would have taken if he or she had survived the testatrix. So far it was an equitable provision. But I do not see any propriety in extending the rule to collateral relatives in whom the testatrix might have no interest, and to whom she might not have been related. To extend that provision to collateral relatives would not certainly carry out the intent of the testatrix. It was given to the devisees to benefit them, but the court has no right to presume that the same cause would have induced the testator to bestow her estate on distant collateral branches of the family.

It is also urged, on the part of the appellants, that the devise being to the devisees and their heirs, the title should pass notwithstanding the death of the devisee. Such a form of devise was necessary, before the revised statutes, to express the intent to give a fee, and the same form is used now, in many instances, to avoid doubt as to the intent of the testator. The mere fact that other words may be used to show such intent, is no reason why any other interpretation should be given in the use of such words now, from what they received formerly.

The law, as it existed previously, did not pass any estate to the heirs of the devisee where he died before the testator, and the use of the same words should not have any such effect, although they may be unnecessary to pass a fee to the devisee if he had lived.

Nor is it at all clear that it would be carrying out thePage 417intent of the testatrix to adopt the views of the appellants. It probably would be in the case of those devisees who died leaving issue, but there is nothing from which we can conclude that the testatrix would have given her property to the collateral relatives. There is no propriety in adopting a conclusion of this kind, because it would be more equitable, when it is plain from the will and the statute that neither in terms authorizes such a construction.

In regard to the residue of the will, there is no ground for interfering with it because one or two specific devises have failed. The others are perfect in themselves, and the devisees are entitled to their shares. This is not a case in which the plan of the whole will is affected by the failure of one or more to take the portion devised to them. Any such rule would subvert every will, if for any cause a devise of part is bad.

I am for affirming the judgment of the supreme court.
DENIO, Ch. J.
The judgment in this case will depend mainly upon the construction to be given to the statute for preventing lapses of devises and legacies in certain cases. The provision is that "whenever any estate, real or personal, shall be devised or bequeathed toa child or other descendantof the testator, and such legatee or devisee shall die during the life time of the testator, leavinga child or other descendantwho shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in thesurvivingchild or other descendantof the legatee or devisee, as if such legatee or devisee had survived the testator, and had died intestate." (R.S. part 2, chap. 6, title 1, art. 3, § 52.) The testatrix, with whose will we are dealing, devised her real estate to a niece for life, and gave the remainder, in five shares: to two surviving sisters, one share each; to two nephews, the children of a deceased sister, one share; to a nephew and niece, the children of a deceased brother, onePage 418share; and to a niece, the child of another deceased sister, one share, to hold to them and their heirs and assigns forever. The testatrix lived several years after executing her will, surviving the devisees of three of the shares, and leaving her surviving the devisees of two of the shares. Certain of the devisees who died in the life time of the testatrix left issue. These devisees, if they had survived the testatrix, would have taken, under the will, two shares in the remainder. The other of the devisees, who predeceased the testatrix, and to whom a whole share was given, died without issue. The devisee for life survived the testatrix about fifteen years, and this action, which was for a partition, was brought soon after the termination of that life estate. Numerous changes, by death and by alienation, had in the mean time taken place among the devisees and their issue, and among those who would have inherited upon an intestacy of any part of the premises. When it shall be determined whether the devises to those who died before the testatrix lapsed or not, it will be easy to adjust the rights of the several parties in the premises, upon the facts ascertained by the supreme court. The judgments already given adjust, it is supposed, the respective interests accurately, upon the respective theories of the law upon which they are based. The question is whether these shares lapsed, or devolved upon the issue of the devisees by force of the act. The statute assumes that, but for its provisions, the devises in such a case would have lapsed; and such was the well settled doctrine of the common law. (Brettv.Rigden,Plowd. 340, 345;Mowattv.Carow,7 Paige, 328;Bishopv.Bishop,4 Hill, 138.) This rule of the common law the legislature sought to change to a certain extent, but not wholly to abolish. It was not every devise or legacy which was to be preserved from lapsing where the beneficiary died before the testator, but only such as should be made to a child or other descendant of the testator, and gifts to such persons were not to be universally saved from lapse, but only where the beneficiaryPage 419named in the will had left a child or other descendant surviving the testator. And even then the subject was not to devolve upon any one who could make title under the beneficiary named, but it was to vest in such child or other descendants as upon an intestacy of the devisee. The devisees in this case not being children of the testatrix, but her collateral relatives, the inquiry is whether such collateral relatives are, in the sense of this enactment, her descendants. It cannot for a moment be maintained that according to the common use of the word descendants, it is not limited to such persons as proceed mediately or immediately from the body of the person of whom it is predicated, in the course of generation. Descendants, when used either in written or spoken language, when unconnected with any qualifying word, describe the children, grand-children, c. of the person named, and where that person is dead it embraces his posterity, however remote, but it is confined to them. Thus, we speak of the descendants of Abraham, of William the Conqueror, of George the Third, and of the first and second President Adams, of Jefferson and Alexander Hamilton; while we say of Queen Elizabeth, of William of Orange, of Washington and Madison, that they left no descendants, or, in the words of the statute, that they respectively died leaving no child or other descendant. These are common forms of speech, and the meaning is perfectly definite, and it is such as I have mentioned. The word is invariably employed in that sense, in books of history, in memoirs, in biographies, in works on genealogy, and in almost every book which treats of men and their affairs. I shall assume, therefore, that the legislature have made use of a word having in common parlance a definite meaning, which excludes nephews and nieces and other collateral kindred; and I have next to say that in construing statutes, words are generally to be understood in their natural and popular sense. There are, no doubt, exceptions to this rule, where it may be permitted to interpret words in the sense of a particular science orPage 420branch of knowledge. In such cases language of a technical character is employed, and is frequently to be understood in a special sense.

The defendants' counsel relies upon this exception, and claims that as the statute in question relates to the transmission of the title of property upon the death of its owner, we are to construe the language in the sense of the law of successions. This seems very reasonable. The most authentic text of that law in this state, is in the statutes of descents and distributions; but there we find the word descendants employed in the ordinary and popular, and not in any artificial or scientific sense. The word descendants is used a great many times in the chapter of the revised statutes respecting thetitle to real property bydescent,and always in the natural sense of lineal descendants. In several instances its meaning is in direct opposition to that attributed to it by the argument. For instance, the fifth section declares that in case the intestate shall die without lawful descendants, leaving a father, the inheritance shall go to the father. The sixth and seventh sections are devoted to prescribing the cases in which the inheritance shall descend to the father or mother, and to the brothers and sisters, or their descendants, and it commences by stating a condition common to all these cases, namely: "if the intestate shall die without descendants." In the last of these sections, the case in which there are nodescendants,or any father or mother, is provided for by declaring that the inheritance shall descendto the collateralrelatives. Here the expression, collateral relatives, is used in direct contrast to descendants. The statute of distributions is equally discriminating, and it uses the word descendants in the same sense. (2 R.S. 96, § 75.) In the third subdivision of the section, we find the direction, that if there be a brother or sister, nephew or niece, and no descendants or parent, the widow is to be entitled to a certain part, and the remainder is to be distributed to the brothers and sisters and their representatives. We discover in these provisionsPage 421no indication of the use of this important word in any artificial or technical sense. If we look into treatises and adjudged cases, we shall find the word steadily used in its primitive and popular sense. I will mention only a single treatise, and refer specially to one adjudged case, among a great number which I have examined; noting, however, where some others may be found. Jarman says: "A gift to descendants receives a construction answering to the obvious sense of the law, viz: as comprisingissueof every degree." (Treatise on Wills, v. 2, p. 32.) And again: "The word issue, when not restrained by the context, is co-extensive and synonymous with descendants, comprehending objects of every degree." (Id. p. 33.) The allusion to the context or connection reminds me that, if the point were otherwise doubtful, the use of the wordchildin connection with descendants, would go far to point the meaning of the latter word.Noscitur a sociisis a maxim which applies in such cases. If it could be shown that the word descendants sometimes embraced collateral relatives, it would not be so here since it is associated with the word child. I think the language means child or other more remote offspring of the person named. The single case selected for reference isCrosleyv.Clare. (Ambler, 397.) There was a testamentary gift of a remainder, in real and personal property, to"thedescendantsof Francis Ince, now living in and about Seven Oaks, in Kent, and hereafter living anywhere else." There was, it is true, no claim on behalf of collaterals, but the question was between children and grandchildren. Upon the argument of the defendants' counsel in the present case, the children only would have taken; for the position is, descendants mean those who would take by descent in case of intestacy. But the master of the rolls held that the grandchildren were entitled to participate. "It would be unjust," he said, in this case, "to confine it to the heirs at law, because the word descendants means all those who proceeded from his body;" and the descendants, though in different degrees, were adjudged to takeperPage 422capita. (See, also,Piersonv.Garnet,2 Bro. C.C. 38; S.C., pp. 226, 230;Davenportv.Hanbury,3 Ves. 257;Butlerv.Stratton,3 Bro. C.C. 367;Leighv.Norbury,13 Ves. 340.) I have found no case in which collateral relatives have claimed under a devise or bequest to descendants; and I am inclined to think this the first occasion in which the position has been taken that they were included under that description. If we turn to the chapter of Blackstone's Commentaries, in which he treats oftitle by descent,we shall find the worddescendantconstantly used to denote the issue mediate and immediate of the person of whom those descendants are predicated, and never in a sense which would include collateral relatives. (Book 2, ch. 14, pp. 223, 224.) It is urged, on behalf of the defendants, that the books habitually speak of thedescentof real estate to the collateral heirs of the person dying seised; and it is claimed that the persons on whom the descent is cast must be descendants. This, I think, involves a fallacy. We use the word descent to describe the transmission of title from the deceased person to his heirs. The expression is figurative, and alludes, as Lord COKE supposes, to the principle of gravitation. (1 Inst. 11.) But the word descendants has reference to genealogy, or the succession of persons in the family relation, and has no necessary connection with the laws of inheritance. Land descends, in certain cases, from a son to his father, and from a man to his brother, but this does not prove that the father is the descendant of his son, or the brother of his brother, in any possible sense. It is correctly said that the law books and other writings commonly speak oflinealdescendants; and it is argued that this would be improper if there were not another species of descendants; from which it is inferred that there are collateral descendants. But we rarely meet with this latter expression. The truth is that the word lineal in that connection is a pleonasm employed to emphasize the expression, and not, in general, to distinguish it from any other species of descendants; and so wherecollateralPage 423descendantsare spoken of, an elipsis is made use of — the phrase meaning the descendants of collaterals. But it is further urged that if the devisees in this will are not within the words of the statute, they are within its intention, and that the act being remedial, they ought to be extended by an equitable construction, so as to meet the case of the defendants. But this is a statute in derogation of the common law, and its operation ought not to be enlarged beyond the fair natural meaning of the language. The former law was that where a devisee or legatee died in the lifetime of the testator, the gift lapsed, that is, became void. The legislature, it is certain, did not intend wholly to abolish this rule, so that the heirs of the devisee should in all cases take as though he had survived the testator, but only to change it to a certain extent, and under certain special circumstances. The case in which the new rule was to apply, was specially pointed out. It was where property should be devised to a child or other descendant of the testator. Where that circumstance did not present itself, the former rule was not changed. Courts have no right to say, if they could fairly do so, that the motive for the change would be equally strong if the devise were to a collateral relative. The legislature were the judges of that, and they have limited it to a devise to a descendant, and we can go no further than they have gone. If we should do so, other judges upon the same reasoning, might take another step, and hold that a devise to a stranger would be equally within the mischief. But I think that independently of the strict words of the statute, there is good reason to believe that the legislature did not intend to go, and would not have been induced to go beyond the provision they have made. There is a natural affection for one's own offspring, both mediate and immediate, beyond that which is felt for other relations, which the legislature thought proper to indulge to the extent mentioned in the statute. And there was good reason for the limitation of the rule; for otherwise, the gift mightPage 424take a direction totally repugnant to the testator's wishes and affections. For example, should I devise an estate to a nephew, the son of my sister, and should he die, leaving no nearer kindred than a paternal uncle, or the issue of such an uncle, the estate, immediately upon my death, would go to an utter stranger to my blood; for if the word descendant, where it first occurs in the statute, would be satisfied with a collateral relative, the second use of it in the same sentence would require the same construction. The statute is motived upon the natural wish which every person feels that his possessions should be enjoyed after his death, by some one who owes his being to him. That sentiment is strong and universal. It furnished the climax to the misery of Macbeth when he uttered the pathetic exclamation:
"Upon my head they placed a fruitless crown, And put a barren sceptre in my hand, Thence to be wrenched with an unlineal hand,No son of mine succeeding."


If the possessor of property is so unfortunate as to have no posterity, the law, in the absence of a testament, distributes the estate amongst his collateral relatives according to its own sense of propriety. But it allows him to make his own selection by will. By the common law such selection became abortive, if the object of it died in his lifetime. That law, in ignorance of what would have been his wishes after that event happened, refused to interfere with the general laws of succession, and considered him to have died intestate to the extent of the interest so attempted to be given. But where the gift was to a child, grandchild, c., who had died leaving issue, the statute under consideration yields a certain deference to the natural sentiments of affection for one's offspring, and makes the deceased devisee a new stock of descent, not to his heirs generally, but to the heirs of his body.

I am quite satisfied that the interpretation contended for by the defendants' counsel cannot be sustained.Page 425

It is urged, in the second place, that the devise may be considered, under the circumstances which have occurred, as made in favor of the heirs of the devisees. The gifts were to the devisees and their heirs. But those are words of limitation, inserted to show the extent of the interest devised, and are not words of purchase. The same point was taken in the case cited from Plowden, where lands had been in form devised to Henry Brett and his heirs forever, who died in the lifetime of the testator. The court answered the position as follows: "And as to the heirs being named in the gift, namely, to Henry Brett and to his heirs, for which reason it is alleged that they shall be contained and included in the intent of the devise, they said that the heirs are not named there to take immediately, but only to express the quality of estate which Henry should have." The principle of this case has been steadily followed in the English courts ever since. (Hodgsonv.Ambrose,Doug. 337;Dennv.Bagshaw,6 Term, 512, and cases there cited.) The provision of the revised statutes allowing a fee to be conveyed without words of inheritance does not change the rule. It does not follow, that because such words may now be dispensed with, that where they are inserted their legal effect is different from what it would have been before the statute. They were never absolutely necessary in a will, provided that it otherwise appeared that the testator intended to devise an estate of inheritance, yet the cases referred to arose upon wills, where words of inheritance in fee or in tail were used. InMaybankv.Brooks(1 Brown's C.C. 841), a legacy was held to have lapsed on account of the death of the legatee in the lifetime of the testator, though the bequest ran to the legatee, his executors, or assigns, notwithstanding that the addition of these words was unnecessary. The argument of the defendants' counsel proves too much; for if the addition of words of inheritance, since they have become unnecessary, enables the heirs to take as purchasers, I do not see that any deed or will, running to the party and his heirs, would vest anPage 426estate in the heirs; but that would introduce inexplicable confusion into titles to land. Those words were either words of purchase or of limitation, at the time the will was executed, and their legal effect is not changed by the events which subsequently happened.

It is finally urged that if the judgment of the court should be adverse to the defendants upon the questions thus far considered, it ought to decree the will wholly void, and adjudge that the real estate attempted to be devised descended to the heirs at law of the deceased. It is quite possible that if the testatrix had foreseen that her devisees would have died in her lifetime, she would have named their issue as alternative devisees. But we can have no certainty of this. Perhaps she would have selected other persons for the object of her bounty. I have looked carefully into the several cases referred to in support of this last position, and find that in each of them there were provisions in the will under consideration which were void, for being in violation of some positive rule of law. (Costerv.Lorillard,14 Wend. 265;Hawleyv.James,16 id. 61;Rootv.Stuyvesant,18 id. 257;McSorleyv.Wilson,4 Sand. Ch. R. 515;Harrisv.Clark,3 Seld. 242;Amoryv.Lord,5 id. 403.) The principle of these judgments seems to be that where the disposing scheme of the testator has been substantially defeated by the failure of the illegal provisions to take effect, the court will declare an intestacy as to the whole of the estate, or such parts of it as are inseparably connected with the void parts, though there are parts which standing alone would be valid. This result has not been reached without a severe struggle among the judges, as will be seen by the opinions delivered in the court of errors inRootv.Stuyvesant. But conceding the principle to be established to the extent which I have stated, it has no application to this case. Here no part of the will violated any rule of law. Simply, events occurred subsequently to the execution of the instrument and before the death of the testatrix, which defeated her intention as to three-fifthsPage 427of her estate, and she did not elect to make a new disposition as to these portions. Whether this was because she was content with the disposition which the law would make as to that part of the property; or the omission to make a new will arose out of accident or forgetfulness, we cannot say. We certainly know that she made valid gifts of two-fifths of her estate to devisees who survived her, and were therefore competent to take precisely according to her intentions. We cannot take from these devisees the property thus validly bestowed upon them. It would establish a dangerous precedent to set aside devises to one set of devisees, because those made in favor of another class have become inoperative by events transpiring after the execution of the will. I am satisfied that we have no right to do this.

I think the judgment appealed from ought to be affirmed.

All the judges concurred except DAVIES, J., who took no part in the decision. Judgment affirmed.Page 428