Bishop v. Bishop — 4 Hill & Den. 138

Majority

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Bishop and others vs. Bishop.

Headnote

Where a testator in 1825 executed a will devising certain real estate to his son, and died in 1840; held, that though the son died in 1833. the estate vested in his children, and not in the heirs at law of the testator.

Otherwise, if the testator had survived the devisee, and died before the revised statutes took effect.

Ejectment, tried before Dayton, C. Judge, at the Livingston circuit, in September, 1842. Clement Bishop, junior, being seized of two parcels of land in Avon, Livingston county—

p. 139

the premises in question in this suit—on the 26th day of August, 1825, made his last will, by which he devised this property to his son Clement Bishop, junior, without any words of inheritance, but with such a personal charge on the devisee as "would carry a fee. The devisee died in the lifetime of the testator, on the 20th of September, 1833, leaving the defendant George Bishop his heir at law. The testator died in September, 1840, leaving three children and the children of two deceased children him surviving. The plaintiffs, Asa Bishop and Elizabeth Turner, are two of the children of the testator, and claim to recover two-fifths of the premises in question as his heirs at law, on the ground that the devise to Clement Bishop, junior, lapsed by his death in the lifetime of the testator. The defendant is the son and heir at law of the devisee, and claims to hold in fee under the devise to his father. A verdict was rendered for the plaintiffs, subject to the opinion of the court on the question whether this was a lapsed devise.

Ji. Gardiner, for the plaintiffs.

J. Young, for the defendant.

By the Court,

By the law as it stood in 1825, when the will was made, the devise to Clement Bishop, junior, would have lapsed on his death in the lifetime of the testator, and the estate would have gone to the heirs at law of the testator. But the statute which took effect in 1830, ten years before the testator died, has given a different direction to the property, and it now goes to the heir at law of the devisee, where, as in this case, such heir is a descendant of the devisee, and the devisee is a descendant of the testator. (2 R. S. 66, § 52.) The will did not take effect until the testator died, which was in 1840, and then the case fell under the influence of the new statute. (De Peyster v. Clendining, (8 Paige,295,304.) Section seventy, (2 R. S. p. 68,) only goes to the execution and

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construction of wills made prior to 1830, and does not touch this question. As the devise has not failed, the plaintiffs cannot recover.

Judgment for the defendant.