Silcox v. Nelson

24 Ga. 84

• Court: Supreme Court of Georgia
• Decided: January 15, 1858
• Status: Published

Opinion

McDonald J.,

By the Court. delivering the opinion.

The bill in Chancery, on the trial of which; the errors assigned are alleged to have been committed by the presiding Judge in the Court below, was instituted by the complainants claiming, as having lapsed, the legacy of $2000 directed by the testator to be invested in stocks, the income of which was. directed to be paid to the Braithwaite school in York county, England, and alleging that the complainant, Charlotte Silcox, is the heir at law, of the testator, and under that title, insisting that the said sum and its accumulations, belong, of right,, to her, and praying that it may be so decreed. The .answer claims that if the legacy has lapsed, it fell into the general residuum, and is distributable as the will directs. The cause went to trial on the bill and answer. The points submitted by complainants’ counsel, the parts of the answer relied on by them, the charge of the Court below, and the exceptions thereto, presented to this Court as assignments of error, are set forth in the statement of the case.

[1.] The charge of the Court in regard to the proof of the lapse of the legacy is correct in all respects. A complainant, who claims, as heir at law, a legacy, which he alleges, has lapsed, because of the non-existence of the legatee named in the will, must entitle himself to it by clear and satisfactory proof of that allegation. The proof relied on in this case, shows that but little effort was made by the executor or any one else, to prove the existence or non-existence of the legatee entitled to the two thousand dollars under the will. Indeed, as far as it goes, it establishes a strong probability, that by the use of a little diligence and effort, the legatee might have been found.

[2.] We think the Court erred in charging the jury, tha if the legacy be lapsed, it becomes a residuum, to be divided among the residuary legatees, under the provisions of the will. Where the residuum is given in distinct parcels, as in this case, or, to several as tenants in common, it is to be inferred that the testator did not intend that lapsed legacies should fall into the residuum, but it is to be presumed in sttch case, that he had expressed all that each residuary legatee should take. The case of Loyd vs. Loyd, reported in 4 Beavan, 231, is very like this. There, the residue was to be divided in three portions, and one third was given to A. another third to B., and, as to the other third, £500, part thereof to C., and the residue and remainder of such third to other parties, and C. died in the life time of the testatrix. It was held, that the ¿2500 lapsed to the next of kin.

[3.] From the interpretation of this will, it follows that the residuary legatees cannot be interested in the question o lapse, and are not, therefore, necessary parties.

Judgment reversed.