In re Estate of L'Hommedieu

39 N.Y. Sup. Ct. 10

Opinion

BARNARD, P. J.:

The only question presented by this appeal is whether a lapsed legacy passes under the general residuary clause. The testator gave legacies to certain half-brothers and a, half-sister who died before the testator, and thus these legacies lapsed. 'Ey the third clause of the will he gave to one Mary E. L. Hallett “all the remainder of my property, both personal and real, in my possession at tlie time of my decease not otherwise disposed of in the foregoing will, to her heirs and assigns forever.” This case is not like Kerr v. Dougherty (79 N. Y., 328). In that case there was a residuary clause which included certain religious corporations which could not take. The court held that the portion of the residuum which thus failed was undisposed of. It is a settled rule of construction that a residuary clause carries all which is not legally disposed of by the will, unless a contrary intention is manifested from the will'itself. Such an intention cannot be deduced from the mere absence of words, or that the testator failed to provide for the contingency upon which the lapse was occasioned. A testator is supposed to-have given away from the residuary legatee for the sake of the.particular legatee. (King v. Woodhull, 3 Edw. Ch., 79; Kerr v. Dougherty, supra; Floyd v. Carow, 88 N. Y., 560).

The judgment should bo affirmed, with costs.

Peatt, J., concurred. Present — BaeNAed, P. J., DyemaN and Peatt, JJ.

Part of decree of surrogate appealed from affirmed, with costs.