Bishop v. Bishop

4 Hill & Den. 138

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: January 15, 1843
• Status: Published

Opinion

By the Court,

Bronson, J.

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 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.