
    Sylvia W. Roberts and Others, Appellants, v Albert J. Bosworth and Others, as Executors, etc., of Isaac A. Burton, Late of the Town of Easton, in the County of Washington, N. Y., Deceased, Respondents, Impleaded with Elsie M. Roberts (formerly Elsie M. Smith).
    
      W/ten, a legacy passes to the descendants of a legatee dying before the testator — a lapSe will not be prevented by the testator’s knowledge of the legatee’s death and his intent that it go to his descendants.
    
    The death of a legatee prior to the death of the testator causes the legacy to lapse with the single statutory exception, in certain cases, of a legacy to a descendant of the testator.
    
      If the legatee is not a descendant, the fact that at the time of the execution of the will the testator was aware of the death of the legatee and intended that the legacy should go to her descendants, will not prevent the lapsing of the legacy.
    Appeal by the plaintiffs, Sylvia W. Roberts and others, from an interlocutory judgment of the Supreme Court in favor of the defendants, Albert J. Bosworth and others, as executors, etc., of. Isaac A. Burton, deceased, entered in the office of the clerk of the county of Rensselaer on the 8th day of May, 1905, upon the decision of the court, rendered after a trial at the Rensselaer Special Term, sustaining the said defendants’ demurrer to the plaintiffs’ complaint.
    The plaintiffs are the children and next of kin of one Allie Smith. Upon the 9th day of December, 1902, one Isaac A. Burton died having left a will in which he bequeathed to “ Sandy Wickes and Allie Smith, his sister, each fifteen hundred dollars.” The will was executed in November, 1902. Allie Smith died September 11, 1899, which fact was known to' Isaac A. Burton at the time of the making of the said will. These facts were in substance alleged in the complaint, and paragraphs 11 and 12 read as follows:
    “ XI: That the said Isaac A. Burton, at the time of the making of his said last will and. testament as aforesaid, he knowing at that .time of the death of the said Allie M. Smith, as aforesaid, and, he also of his own personal knowledge knowing the fact to be that sh§ had • been dead for a period of over three (3) years, it was the apparent purpose and evident wish, intention and desire of the said Isaac A. Burton that the above-named plaintiffs, Sylvia W. Roberts, Harry A. Smith, Frederick R. Smith and the defendant Elsie M. Roberts (formerly Elsie M. Smith), the children and only heirs at law of the said Allie M. Smith, deceased, should take and receive the legacy of fifteen hundred dollars ($1,500) bequeathed to their mother, •the-said Allie M. Smith, in and by the terms and provisions of the said last will and testament of the1 said Isaac A. Burton, deceased.
    “ XII: The plaintiffs further state and allege that" after the making of his said last will and testament the said Isaac A. Burton many times previous to his death stated to different persons that it was his purpose as well as his wish, intention and desire that- the children of the said Allie M. Smith, deceased, should receive the legacy that he, in and by his said last will and testament, bequeathed to their mother, the said Allie M. Smith.”
    
      The defendants, the executors of Isaac A. Burton, demurred to the complaint on the ground that facts were not stated sufficient to constitute a cause of action. This demurrer was by the Special Term sustained, and from the interlocutory judgment entered upon that decision the plaintiffs have here appealed.
    
      John P. Curley, for the appellants.
    
      William S. Ostrander, for the executors, respondents.
    
      J. K. Long, guardian ad litem,, for the defendant Elsie M. Roberts.
   Smith, J.:

The decision of the learned judge at Special Term was, in our judgment, clearly right. The death of a legatee prior to the death of the testator causes the legacy to lapse, with the single exception in certain cases of a legacy to a descendant. Allie Smith was not a descendant of the testator and her children are not entitled to the benefit of the statute (2 R. S. 66, § 52).

The plaintiffs’ contention that the testator knowing of the death of Allie Smith intended that the legacy should go to her descendants, and that this intention should control, cannot be upheld. (Dildine v. Dildine, 32 N. J. Eq. 78; Comfort v. Mather, 2 Watts & Serg. 450 ; Lindsay v. Pleasants, 39 N. C. [4 Ired. Eq.] 320; Scales v. Scales, 59 id. [6 Jones Eq.] 163; Maybank v. Brooks, 1 Bro. Ch. Rep. 84.)

It cannot be here claimed that the testator intending to name one party has by inadvertence named another. The most that can be claimed is that the testator, through a mistaken view of the law, thought that a legacy given to one who was dead would pass the legacy to the next of kin of such person. This view, under filíe authorities, would not be sufficient to give the legacy to the person to whom the testator, through his mistaken notion of the law, supposed it would go.

The appellants finally urge that this objection cannot be raised by demurrer to this complaint, but can only be raised to the granting of the relief upon the trial. Upon examination of the complaint, however, if every fact be shown that is there alleged a non-suit must follow. Under such circumstances the court must hold Upon demurrer that sufficient facts are not alleged to constitute a cause of action.

The interlocutory judgment must, therefore, be affirmed, with costs, with the usual leave to amend the complaint upon- payment of the costs of the demurrer and of this appeal.

All concurred.

Interlocutory judgment affirmed, with costs, with usual leave to amend complaint on payment of the costs of the demurrer and of this appeal.  