
    Gill et al. v. Brouwer et al.
      
    
    
      Lapsed legacy.
    
    Where a person to whom a sum is bequeathed after the death of a legatee for life, dies in the lifetime of the testator, and the will contains no ulterior bequest of the fund, it is deemed a lapsed legacy, to be distributed as in case of an intestacy.
    Gill v. Brouwer, 31 How. Pr. 128, affirmed.
    Appeal from the general term of the Supreme Court, in the second district, where a decree of the surrogate of Dutchess county had been modified, and, as modified, affirmed. (Reported below, 31 How. Pr. 12.8.)
    James Gill, of Poughkeepsie, in Dutchess county, died on the 26th February 1856, leaving him surviving as his only next of kin and heirs-at-law, a brother, Theophilus A. Gill, a sister, Sarah Wilhelmina Anthony, wife of Theophilus Anthony, and the five children of a deceased brother, Thomas Gill, to wit, John R. Gill, Robert T. Gill, Ann Gill, Sarah W. Gill and Elizabeth Gill.
    The decedent executed his last will and testament in June 1841, which was duly admitted to probate on the 6th May 1856. . At the time of the execution of the will, Thomas Gill, the brother, was living, but died in the lifetime of the testator, leaving the above-named children surviving. Ann Gill, a sister of the testator, mentioned in his will, also died before him, unmarried and without children.
    The said James Gill, the testator, by his said will, disposed of his property in the following manner:
    
      1. He gave and devised to his brother, Thomas Gill, his heirs and assigns, one-third of his estate, real and personal.
    2. He directed his executor to sell the remainder of his estate, and to invest the proceeds, with the remaining two-thirds of his personal estate, and to pay over one-half of the income to his sister, Sarah Wilhelmina Anthony, during life, and the other half to his sister, Ann Gill, during life. Upon *the death of either sister, he directed his executors to pay one-half of the interest, payable to her so dying, to the surviving sister, and the other half to his brother, Thomas Gill. Upon the death of the surviving sister, he directed the whole of the sum so invested to be paid to his brother, Thomas Gill, and added, after the above, the following declaration: “It being my intention, by this my will, that after the said annuities shall cease to become due and payable, that the said two-thirds or remainder of my estate shall go and belong to my said brother, Thomas Gill, to the exclusion of all my other brothers and relations.” Theophilus A. Gill, a brother, was not named in the will.
    Jacob Brouwer, the executor, rendered an account on the 1st July 1858, and the surrogate, by his decree, entered that day, directed the executor, first, to invest one-third of the estate for the benefit of Sarah Wilhelmina Anthony, during life, and to retain the same, after her death, subject to the further order of the surrogate’s court; and next, to distribute the one-third given to Thomas Gill, and one-half of the remaining two-thirds, among the next of kin of the testator, “it appearing that Thomas Gill and Ann Gill, legatees in said will named, both died before the testator.” On the 9th of July 1858, a distribution was made under said decree, and all of the next of kin executed receipts in full for their respective shares.
    Sarah Wilhelmina Anthony died on the 25th of July 1864, leaving a last will and testament, which was duly admitted to probate, of which her husband, Theophilus Anthony, was the sole acting executor, and to whom she gave all her property for life.
    On the 19th of November 1864, Jacob Brouwer rendered his final account as executor, which was admitted to be correct by all the parties interested, and the amount found in his hands for distribution among the next of kin was $1866.52. On the' 19th of November 1864, the surrogate entered a decree, by which he directed said sum of $1866.52 to be equally divided, between Theophilus A. Gill and the children of the deceased brother, Thomas Gill.
    *Brom this decree, Theophilus Anthony, the executor of his deceased wife, Sarah Wilhelmina Anthony, appealed to the supreme court, and the children of Thomas Gill took a cross-appeal. On the hearing, the latter appeal was dismissed, on the ground that it was taken too late, and on the appeal of Anthony, the decree of the surrogate was so far modified, as to direct the payment of one-third of the sum of $1866.52, remaining in the hands of the said Brouwer, as executor, to the said Theophilus Anthony, as executor of the last will and testament of Sarah Wilhelmina Anthony; deceased; one-third thereof to Theophilus A. Gill; and one-third thereof to the children of Thomas Gill, deceased—after first paying thereout the costs of the said appellant!, Theophilus Anthony, and the respondent, Jacob Brouwer. And the children of Thomas Gill, thereupon, took a further appeal to this court. i
    
    Anthony, for the appellants.
    
      Tremain, for the respondents.
    
      
       Also reported in 5 Trans. App. 86.
    
   Bacon, J.

By a careful attention to the facts in this case, which, owing to the various positions the parties occupy, are presented in a somewhat confused form, it will be seen, that the only appeal before us is by the heirs of Thomas Gill, from the judgment of the supreme court modifying the decree of the surrogate, and dismissing the appeal they attempted to take from the decree of the surrogate made in July 1858. By that decree, the executor was directed to retain one-third of the balance in his hands, and pay the interest thereof, during her life, to Sarah W. Anthony, the sister of the testator, in accordance with the directions of the will, and of the remaining fund, one-third was ordered to be paid to Theophilus A. Gill, a brother of the testator, one-third to Susan W. Anthony, and one-third to the children of Thomas Gill, deceased. This decree was final as to the subject-matter embraced within it, and disposed of the whole fund, except the portion retained during the life of Mrs. Anthony, and which was only subject to ultimate distribution, after her death.

In this decree all parties concerned acquiesced, and all executed receipts for the shares to which, under its provisions, they were entitled. This distribution was made expressly *upon the theory, in which all parties concurred, that the entire estate had lapsed, except the life-estate in one-third in favor of Mrs. Anthony. Even if there was a misapprehension of the law, yet, as all parties were present, and assented to the conclusion and order of the surrogate, and acted in affirmance of it, they should not be heard subsequently to question it, and especially after such a lapse of time, and after the funds had all been paid, and the executor quoad hoc had been discharged from his trust. It might, perhaps, be true, that, if an application had been, immediately after the making of this decree, made to the surrogate to open it for reconsidera» tion, upon a supposition that the law or the facts had been misunderstood or misconceived, he would have heard and acted upon this suggestion and opened the decree for further consideration or correction. This it has been held he had power to do. (Dobke v. McClaran, 41 Barb. 491; Brick’s Case, 18 Abb. Pr. 36.) It is not necessary to express any opinion upon this point, at this time. But this was not attempted. All parties acquiesced in this decree of July 1858, the executor paid the sums decreed, and the account, with the exception of the money he was directed to retain, invest and pay the income of, during Mrs. Anthony’s life, was effectually closed.

In June 1864, Mrs. Anthony departed this 'life, and then the final accounting was had before the surrogate, and he made the decree of the 19th November 1864. From this decree, in February 1865, Theophilus Anthony, the husband of the deceased Susan W. Anthony, and who, by lier will, was made the sole beneficiary of all her estate for life, brought his appeal to the supreme court, complaining that the surrogate •had committed an error, by depriving him, as the representative of his wife, of any share of the surplus remaining undistributed. Immediately upon this, and in March 1865, the heirs of Thomas Gill brought their appeal, and then, for the first time, attempted to over-hale the decree of June 1858, and allege error in that decree, as well as in the’decree of November 1864. This appeal was entirely too late, not only for the reason that ^ ac*iS ^ey were es^°PPe(^ *from questioning the decree, but because the statutory limitation of the right to appeal had gone by, something more than seven years. The appeal, therefore, so far as it sought to bring up for review the decree of July 1858, was properly dismissed by the supreme court.

Upon the appeal of Theophilus Anthony, the supreme court corrected what they deemed to be an error in the decree of the surrogate. He directed one-half of the entire fund, after the payment of certain expenses, to be paid to Theophilus Gill, the surviving brother of the testator, and the other half to the children of Thomas Gill, the appellants here. In this, the surrogate unquestionably erred. There is no intention expressed or implied in the will, that, the fund should be distributed to the heirs of Thomas Gill, to the exclusion of the testator’s other brothers and sisters. He had in one part of his will given one-third of his estate to Thomas, his heirs and assigns, and that portion they had received under the distribution in 1858. Then, after the life-estate of Mrs. Anthony should determine, he directs the payment of the rest to Thomas Gill, without any words of succession or inheritance, adding, to make the intent more certain and specific, It being my intention, by this my will, that after the said annuities shall cease to become due and payable, the said two-thirds or remainder of my estate, shall go and belong to my said brother, Thomas Gill, to the exclusion of all my other brothers and relations."

Without insisting that these children would come under the designation of “relations,” and would thus be literally and explicitly excluded from participation in this residuary fund, we think, the supreme court rightly adjudged that the testator made this bequest, in the evident expectation that Thomas Gill would survive him, and intended to provide for that exigency, and that only. There is no reference in that bequest- to the children of Thomas, and not only no indication that it was intended they should take what had been designated as the portion of their father, but the strongest implication, that the sole beneficiary was Thomas Gill, and upon his failure to take, that portion of his estate would ^remain undisposed of by the will. The case comes precisely within the principles, and is governed by the rule recently adjudicated and applied by this court, in tbe case of Van Buren v. Dash (30 N. Y. 393).

The principle which should have governed the final distribution being thus settled, the supreme court modified the decree of the surrogate, by directing that one-third of the fund should be paid to Theophilus Anthony, the executor and trustee of Susan W. Anthony, one-third to Theophilus Gill, the surviving brother of the testator, and the balance to the children of Thomas Gill, in equal shares, after first paying thereout the costs of Anthony, and of Brouwer, the executor of James Gill. The judgment was in all respects right, and should be affirmed, with the costs of the respondents Anthony and Brouwer, on this appeal, to be paid by the appellants.

Mason, J.

If there was an appeal taken from the decree of July 1858, it, certainly, was too late, as it was not made until after the decree of 19th November 1864—more than six years after the first decree was made. The statute limits the right of appeal from a decree of distribution, on the final accounting, to three months. (2 B. S. 95, § 67.) The decree was final as to the distribution of two-thirds of the estate, and the parties having given their receipts in full, for their distributive shares of the estate, and acquiesced in that decree, for over six years, cannot now question it. It cannot, certainly, be brought in review here, for no appeal has been taken from it. The appeal from the decree of the 19th November 1864, cannot be regarded as bringing before this court the decree of July 1858. The only question here for review is the decree of November 19th, 1864.

There can be no doubt, it seems to me, that both the surrogate and the supreme court were right, in holding that, as Thomas Gill and Ann Gill died before the testator, their legacies lapsed; nor did it alter the rule, that these legacies were to them, their heirs and assigns. (Mowatt v. Carow, 7 Paige 328; Bishop v. Bishop, 4 Hill 138; Van Buren v. Dash, 30 N. Y. 393.) It was expressly decided by this court, in the latter case, that our statute to prevent lapses of devises in certain cases, does not apply to collateral relatives. The word “ descendant,” used in this statute, is limited to issue in the legal sense.

The surrogate, most certainly, erred, in holding that the bequest of the life-estate to Mrs. Anthony, excluded her, or rather, her next of kin, from any other interest in this one-third, set apart for her use, during life, than such life-estate. The residue, after the life-use of Mrs.' Anthony, was, by the will, given to Thomas Gill; and as he died before the testator, this estate lapsed, and immediately vested in the next of kin; and Mrs. Anthony, in her lifetime, might have claimed the one-third, absolutely, as her own. Not that the will gave it to her, but that she was entitled to it as next of kin, because it was undisposed of by the will, and she was entitled to it, under the statute of distributions. The case of Hoes v. Van Hoesen (1 Barb. Ch. 379) is in point. That case decides that, where a residuary interest in personal property is not disposed of by the will of the testator, it does not necessarily belong bo those who may happen to be his next of kin, at the termination of the particular estate or interest in such property which is bequeathed by him ; but, as an interest in property, undisposed of by the will, it belongs to the next of kin of the decedent, who were entilled to the distributive shares in such unbequeathed interest, at the death of the testator. This is upon the familiar doctrine, that where a legacy or bequest of personal property lapses, it immediately vests in the next of kin of the testator, subject to the use of the first taker, or to the execution of any valid trust, for the benefit of .such person. (24 N. Y. 9; 40 Barb. 286; 25 Wend. 119.) Ic follows, that the surrogate was wrong in depriving Mr. Anthony, as the legal representative of the estate of his wife, of the one-third share; and the supreme court was right in modifying the decree in this respect.

There is no ground for the claim presented by these appellants, the children of Thomas Gill, deceased; they cannot bring their claim within the rule upon which they base it. The expressions in this bequest, “to Thomas Gill, his heirs and assigns,” cannot, upon any rule of construction, be held to evidence the intention of the testator, to provide a substitute for the legatee, in case of his death. The bequest is not to Thomas Gill or his heirs, nor is it a case where we have a right, upon any rule of construction, to convert “ and ” to “ or.” There is nothing in the whole will from which any intention of the testator can be deduced, to substitute the children of Thomas Gill, as his legatees, in the place of their father, should Thomas Gill die before the testator. The decree of the supreme court is most clearly right, and I advise that it be affirmed,- with costs to the respondents, to be paid by the appellants personally.

Decree affirmed.  