Roberts v. Bosworth
Appellate Division of the Supreme Court of the State of New York
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.
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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…
1Opinion of the Court
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.…
2Cases cited1 opinion
- Comfort v. MatherSupreme Court of Pennsylvania · 1841
3Cited by3 opinions
- Utica Trust & Deposit Co. v. ThomsonNew York Supreme Court · 1914
- In re the Compulsory Judicial Settlement of the Account of GilmanAppellate Division of the Supreme Court of the State of New York · 1916
- In re the Compulsory Judicial Settlement of the Account of GilmanNew York Surrogate's Court · 1916