Words of donation and of limitation.

To what time words refer.

issue of the body of the person named, of every degree, as children, grandchildren and great-grandchildren. Hamlin v. Osgood, 1 Redf. Sur. Rep. 409. The testator devised all his estate to his executors, in trust to sell it in such parcels, and at such times, as he should think proper, and authorized them, until such sales were made, to receive the rents and profits. He then directed that, upon the converting of all his estate, real and personal, into money, it should be divided into ninety equal parts, specifying how many parts were to be paid to the several legatees. He also directed that, in case of the death of any legatee "before the division of my estate, leaving descendants, the share of such legatee should go to said descendants, in such portions as they would be entitled to if such deceased person had died intestate, fully possessed of the same: Held, in view of the discretion allowed to be exercised by the executors, the court will not presume that the testator contemplated the provision of the whole estate at an earlier period than it really occurred, except where unreasonable delay and an unwarrantable abuse of the trust are shown. Ibid.

The event upon which the bequests are limited, was the final division of the testator's estate; and the legacies did not vest until that event took place. Therefore, when one of the legatees died before the final division took place, the limitation over to his descendants took effect at his death; and his share should be paid to them, and not to his administrator. The widow of said legatee was not, therefore, entitled to any portion of her husband's share. She is not included in the term "descendants," and can take no part in the distribution as such. Ibid.

Parol evidence of declarations at the time of making will.—When the law fixes the intention of the testator from the terms of a will, parol evidence of the condition, character and habits of the devisee, as well as declarations made by the testator at the time of making the will, in order to show that the testator only intended to give the devise a life estate, are inadmissible. McGray v. Lipp, 35 Ind. Rep.; Pac. Law Rep., Vol. IV, p. 106.

SEC. 1335. The terms mentioned in the last section are used as words of donation, and not of limitation, when the property is given to the person so designated, directly, and not as a qualification of an estate given to the ancestor of such person. (a)

SEC. 1336. Words in a will referring to death or survivorship, simply relate to the time of the testator's death, unless possession is actually postponed, when they must be referred to the time of possession.

(a)NOTE.-(From Civil Code )-SEC. 779. When a remainder is limited to the heirs, or heirs of the boy, of a person to whom a life estate in the same property is given, the persons who, on the termination of the life estate, are the successors or heirs of the body of the owner for life, are entitled to take by virtue of the remainder so limited to them, and not as mere successors of the owner for life. N. Y. C. C., § 237.

This section seems to abolish the "rule in Shelley's case," and seems to be inconsistent with section 1335 above. The wording is quite ambiguous, and perhaps the intention was not to abolish the rule, but to give the heirs the option to take either as purchasers or successors. It is scarcely possible that a distinction was sought to be raised between devises and grants. Section 779 is taken from the title on real property.

See Howard v. Howard, 21 Reav. 550; Schenk v. Agnew, 4 Kay & J. 405; Akams v. Beekman, 1 Paige, 631 Taaffe v. Connor, 10 H. of L. Cas. 77; Spurrell v. Spurrell, 11 Hare, 154.

bequest to

SEC. 1337. A testamentary disposition to a class includes Devise or every person answering the description at the testator's a class. death; but when the possession is postponed to a future. period, it includes also all persons coming within the description before the time to which possession is postponed.

The testator gives a moiety of the residue of his estate to his wife, "her heirs and assigns," and the other moiety to the "children" of his late brother and sister, "their heirs and assigns;" and he authorized his executors to sell his estate, and allow his wife "to take a moiety thereof, and pay the other moiety thereof to the children of his said late brother and sister." At the death of the testator, as well as at the date of the will, several of the children of the brother and sister were dead: Held, that the word "heirs" was a word of limitation and not of purchase, and the issue of the testator's nephews and neices could take. Stires v. Van Renssalaer, 2 Bradf. 172.

In case of a bequest to children, as a class, it is a general rule that only those living at the date of the will can take, unless an intent to the contrary can be deduced from other portions of the will. Ibid.

When a bequest is made to a class, the death of one before the testator does not cause a lapse, but all those answering the description of the class at the testator's death, can take the whole. Ibid.

See, also, Campbell v. Rawdon, 18 N. Y: 414; also Tucker v. Bishop, 16 N. Y. 402; Johnson v. Valentine, Sandf. 36; Doubleday v. Newton, 27 Barb. 444.

version

SEC. 1338. When a will directs the conversion of real when conproperty into money, such property and all its proceeds takes effect. must be deemed personal property from the time of the testator's death.

See 2 Redf. on Wills, 125 and 126 and cases cited there; see, also, Story on Equity Jur. §§ 790 to 793, and 1212 to 1214, and cases cited in notes; also, Phelps v. Pond, 23 N. Y. 76; Forsyth v. Rathbone, 34 Barb. 405; Fowler v. Depau, 26 Barb. 239; Johnson v. Bennett, 39 Barb. 52.

born after

SEC. 1339. A child conceived before, but not born until When child after a testator's death, or any other period when a dispo- testaotr's sition to a class vests in right or in possession, takes, if under will. answering to the description of the class. (a)

(a)NOTE.-(From Civil Code )-SEC. 698. When a future interest is limited to successors, heirs, issue or children, posthumous children are entitled to take in the same manner as if living at the death of their parent. N. Y. C. C., § 190; Statutes of 1855, p. 171, § 5.

SEC. 739. A future interest, depending on the contingency of the death of any person without successors, heirs, issue or children, is defeated by the birth of a posthumous child of such person, capable of taking by succession. N. Y. C. C., §211; Statutes of 1855, p. 171, §4.

death takes

Mistakes

and omis

sions.

See section 1403, post, and 1306, in the preceding chapter, and note to said section.

See, also, Jenkins v. Freyer, 4 Paige, 53; Rawlins v. Rawlins, 2 Cox, 425.

SEC. 1340. When, applying a will, it is found that there is an imperfect description, or that no person or property exactly answers the description, mistakes and omissions. must be corrected, if the error appears from the context of the will or from extrinsic evidence; but evidence of the declarations of the testator as to his intention cannot be received.

See Doe v. Allen, 12 Ad. & El. 451; Douglas v. Fellows, 1 Kay, 114.

Parol proof, when admissible.-Generally parol proof cannot be received to vary a will where its meaning is plain and its provisions are susceptible of application. But evidence of all material facts is admissible, in aid of the exposition of a will; and it is competent by means of extrinsic evidence, to place the court in the situation of the testator, so as to facilitate and ensure the ascertainment of his intention. Ex parte Hornby, 2 Bradf. 420.

It is competent to give evidence of the testator's declaration at the time of making the will, where, as the will is written, there is no one to answer the precise description in the instrument. Ibid.

In construing a will, words may be transposed, to effectuate the testator's intention as gathered from the will and from extrinsic proof, when, as the clause stands, it is inapplicable to an existing state of facts, but if transposed, it will be consistent and applicable. Ibid.

Extrinsic evidence.-The testator by his will gave a legacy of $500 “to his nephew, James Hornby, son of his brother Frederick." It appearing that Frederick had no son named James, and that James had a son named Fred. erick, and the draughtsman of the will having testified that the testator directed the legacy to "James' son Frederick;" and other satisfactory evidence having been given of the intention of the testator at the time of making the will, showing the legacy was designed for Frederick, son of James: Held, that the words of the clause in question might be transposed, and the mistake corrected, so that the will might be read in conformity with the fact. Ibid.

The testatrix by her will gave to the R. C. Orphan Asylum in the city of New York all future dividends in all her share of the capital stock of "the Mechanic's Bank so usually called in the city of New York." At the time of making the will and at her decease, she had one thousand dollars in the stock of the City Bank, but none in the Mechanic's Bank, nor had she ever owned any in the last named institution: Held, that the shares in the City Bank passed under the will to the legatees named. Orphan Asylum v. Emmons, 3 Bradf. 145.

Evidence of material facts is in all cases admissible in aid of the application of a will to determine whether the words with reference to the facts admit of a plain application, and if not, then to determine whether they can be applied in any other sense of which they are capable so as to satisfy the intention. Ibid.

The present case is one of misdescription. A legacy will not be allowed

to fail merely by a false description, if by rejecting the portion of the description that is false, there are words enough left in the testament to effect the testator's intention and convey the subject matter he intended to dispose of. Misdescription is fatal when total, but if only partial, the inaccurate portion may be disregarded. The word “Mechanics," in this bequest, being rejected as inapplicable to any property ever owned by the testatrix, the bequest is left to operate upon any bank stock possessed by her, which, as appears by the evidence, was, in fact, no more in amount than the sum described in the specific legacy. Ibid. Contra, Doe v. Hiscocks, 5 N. & M. 563.

On the final accounting of the executors, it appeared that there was no person to answer the name of an annuitant described in his will as the testator's "cousin Paris Piccard;" but parol evidence was given that his cousin Priscilla Piccard was usually named by him as described in the will: Held, that parol proof may always be used to apply to a will; that is, to ascertain the person intended by the testator by a description, which, though not ambiguous on its face, cannot be applied precisely as expressed in the instrument. The plain terms of a testament cannot be altered by showing the testator's declarations. The writing must prevail and be interpreted by its own language; but it is competent to point out by proof the person who answers the description of a legatee; and if there be no one who exactly meets the description, the person intended may be ascertained by means of extrinsic evidence. Hart v. Marks, 4 Bradf. 161.

See 1 Greenl. on Evid. §§ 287 to 291, inclusive, and cases cited in notes; see 1 Redf. on Wills, 496, et seq.

See, also, Lee v. Paine, 4 Hare, 249; Smith v. Smith, 4 Paige, 271; Fleming v. Feming, 8 Jur. (N. S.) 1042; Smith v. Wykoff, 3 Sandf. Ch. 82; Hart v. Tlud, 2 De Gex. M. & Gr. 300; Stanley v. Stanley, 2 Johns. & Hem. 513; Blundell v. Gladstone, 1 Phillips, 279.

vises and

SEC. 1341. Testamentary dispositions, including devises when de and bequests to a person on attaining majority, are presumed bequests to vest at the testator's death.

See Post v. Hover, 30 Barb. 312; also Dupre v. Thompson, 8 Barb. 537.

The testatrix died February 6, 1856, and among other legacies in her will, bequeathed a certain sum to the Troy Conference Academy, at West Poultney, Vermont. On the twelfth day of January, 1857, the trustees of the academy executed a lease to a private individual for nine hundred and ninety. nine years, at a nominal rent, it being fully provided that the lessee should "carry on the school contemplated by and in the charter, or acts incorporating the same, according to all the conditions of said acts of incorporation:" Held, that the legacy became vested in the academy on the death of the testatrix; and whether the subsequent execution of the lease operated to dissolve the corporation or not, the fact of such previous vesting controlled the course of the legacy, and entitled the academy thereto. Wesleyan University v. Troy Con. Acad., 1 Redf. Sur. Rep. 287.

The testator directed a certain sum to be invested by his executors, the income thereof to be paid to his parents during life; and on the death of both, out of the sum so invested to pay $2,500 to the testator's brother. The brother died before either parent: Held, that the legacy to the brother consisting of personal property, and being chargeable on the personal estate,

vest.

When can

not be divested.

Death devise legatee

Interests remaindel

are not affected.

Conditional

devises and bequests.

Condition

vested from the testator's death; and on the death of both parents should be
paid to the legatee's personal representative. The gift was not payable un
the happening of a contingent event. The mere postponement of the actual
possession of a legacy affixes no condition to its actual vesting. Larocque v.
Clark, 1 Redf. Sur. Rep. 469.

L. C. devised premises to the intestate "if he should live until he is
twenty-one or marry;" in case of his death under twenty-one, unmarried,
then to V. The intestate died under twenty-one, unmarried: Held, The fee
had vested in the intestate and was not contingent upon his arrival at the
age of twenty-one, or his marriage. Kelso v. Cuming, 1 Redf. Sur. Rep. 392.
The rents and profits accruing between the vesting of the fee and the death
of the intestate belonged to him, and the remainder thereof left unexpended
were assets in the hands of his administrator to be accounted for. Ibid.
The rents and profits accruing after the death of the intestate went with
the fee to V. Ibid.

But where certain personal property was bequeathed to the intestate, on the same terms, to be held in trust for him until he was twenty-one: Held, that V. took the property either as next of kin of L. C., or by the will. Ibid.

SEC. 1342. A testamentary disposition, when vested, cannot be divested unless upon the occurrence of the precise contingency prescribed by the testator for that nur

pose.

See Williams y Jo

1343.

Page 320.

If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to hir fails, unless an intention appears to substitute sen other in his place, except as provided in section thi teen hundred and ten.

gatee of a limthe testator's death, does not defeat He interests of persons in remainder, who survive the testator.

See Downing v. Marshall, 23 N. Y. 370; Campbell v. Rawdon, 18 N. Y. 421.

SEC. 1345. A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated. (a)

SEC. 1346. A condition precedent in a will is one which precedent, is required to be fulfilled before a particular disposition

takes effect.

See section 1281, in preceding chapter, and cases cited there.

(a) NOTE.-(From Civil Code.)-SEC. 699. Future interests pass by succession, will and transter, in the same manner as present interests. N. Y. C. C., § 191.