In re the Estate of Bonnett — 12 N.Y. St. Rep. 615

Majority

p. 615

In the Matter of the Estate of Zalmon Bonnett.

(Supreme Court, General Term, Second Department,

Filed December 13, 1887.)

Headnote

-Legacies — Lapsed legacies — Disposition op such property by a RESIDUARY CLAUSE.

The testator, Zalmon Bonnett, died leaving a will which was admitted to probate by the surrogate of Westchester county. By this will the testator made several specific legacies and also provided that all the rest of his estate should go to St. John’s Church. These various legatees died before the death of the testator. Held, that these lapsed legacies, and one ■declared void, passed to the residuary legatees. The general rule as to

p. 616

personal property is that the residuary bequests carry, not only everything not attempted to be disposed of, but also everything not effectually disposed of, such as void legacies and lapsed legacies. Following Matter of Benson, 96 N. Y., 499 ; distinguishing Kerr v. Dougherty, 79 N. Y., 346 .

Thomas Nelson, for app’lt; Wm. H. Sage, for resp’t.

This is an appeal from so much of a decree of the surrogate of Westchester county as adjudged that certain lapsed legacies, and a legacy declared void, passed to the residuary legatee. The general rule as to personalty is (though the law as to realty is otherwise), “that residuary bequests carry not only everything not attempted! to be disposed of, but also everything not effectually dis-' posed of, such as void legacies and lapsed legacies.” 2 Red-field on Wills, 442; 1 Jarman, 645.

It has been supposed that this rule was overthrown by the declaration in Kerr v. Dougherty ( 79 N. Y., 327 ), but" in that case the court held that the residuary clause was limited, not general, and hence that void legacies did not pass under it, but went to the next of kin. The prevailing opinion did not question the authority of the general rule cited in the Matter of Benson ( 96 N. Y., 499 ), where the question again arose. It was there held that lapsed legacies passed under the residuary clause, reversing the judgment of the supreme court in that respect.

The court of appeals say that the previous decision in Kerr v. Dougherty has, been misunderstood. The cases of Stephenson v. Orphan Asylum ( 27 Hun, 380 ), Iseman v. Myres ( 26 Hun, 651 ), and Goodwin v. Ingraham ( 29 Hun, 221 ), cited by the appellant’s counsel, were prior to the decision in the Matter of Benson. They need no further review than to say they proceeded on the same misconception of Kerr v. Dougherty that led to the decision by this. Court in the Benson Case. Those cases are, therefore, not to be further regarded as authority.

In the will now before us the residuary clause is in the f olio wing terms: “All the rest, residue and remainder of my estate, after the payment of my just debts, fun'eral and. testamentary expenses, I give and bequeath to,” etc. The residuary bequest is thus general, and is not to be distinguished in substance from that found in the will reviewed in the Benson Case. The decision of the court of appeals, in that case, therefore, disposes of this appeal and the decree of the surrogate should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.