Young v. Case

2 Redf. 55

• Court: New York Surrogate's Court
• Decided: September 15, 1871
• Status: Published

Opinion

The Subrogate.

The general rule is well settled that where the legatee dies before the testator, the legacy will lapse (2 Redfield on Wills, 484 ; 2 Williams on Executors, 1084).

But the statute of this state saves the legacy given to a child or other descendant who shall die in the lifetime of the testator leaving á child or other descendant (2 R. S. 66 § 52; Van Beuren v. Dush, 30 N. Y. 393.) William 0. Toung did not die before William Case the testator. He was a descendant, but the statute has no application to the case, as he died after William Case and left no child or descendant him surviving, so that the question rests upon the common law.

It seems to be well settled that a gift to one for life and after his or her death.to another, vests in both immediately upon the death of the testator. The life tenant will enjoy the gift for life, and upon the death of the life tenant, the remainderman comes into possession; it is the enjoyment only that is posponed. (2 Redfield on Wills, 506. (32); 1 Jarman on Wills, 750: 4 Madd. R., 411; Hulme v. Hulme, 9 Sim., 644; Conklin v. Moore 2 Bradf., 179; Arcularies v. Geisenhainer, 3 Id., 75; Laroque v. Clark, 1 Redfield, 471.)

In Williams on Executors this rule is laid down: “ When a person bequeaths a sum of money or other personal estate to one for life, and after his decease to another, the interest of the second legatee is vested, and his personal representatives will be entitled to the property, though he die in the lifetime of the person to whom the property is bequeathed for life.” (2 Williams on Ex., 776 ; Barker v. Woods, 1 Sandf. Ch., 131.)

This rule I find sustained by every reported decision I have met with, and the same rule must be applied here.

William 0. Toung, died after the testator (William Case), and the share given to him by the will of William Case became vested in him immediately upon the death of William Oase, but the enjoyment thereof was postponed until the death of Jane Case, widow of William and although William 0. Young died before Jane (the widow) and could not enjoy the testator’s bounty, still it belonged to him, and upon the death of Jane Case, his father James A. Young as heir at law, and next of kin, became entitled to the possession of his share.

A decree must therefore be entered directing the share given to William 0. Young, to be paid to Silas 0. Young, the committee of the said lunatic James A. Young.

Decree accordingly.