Hawn v. Banks
New York Court of Chancery
Question on the lapsing of a legacy given under the will of Eliza McCarthy, deceased. The clause relating to it was in these words: “I give and bequeath to my niece Mary Phelan and to her heirs the sum of six thousand dollars.” Mary Phelan died after the making of the will, but before the testatrix, leaving the complainants her children, next of kin and heirs at law. They now filed a bill for the legacy.
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Question on the lapsing of a legacy given under the will of Eliza McCarthy, deceased. The clause relating to it was in these words: “I give and bequeath to my niece Mary Phelan and to her heirs the sum of six thousand dollars.” Mary Phelan died after the making of the will, but before the testatrix, leaving the complainants her children, next of kin and heirs at law. They now filed a bill for the legacy. The following is a copy of such parts of the will as are necessary to carry out the meaning of the court. “First, All my just debts, if any, and the expenses of my funeral to be paid as soon…
1Opinion of the Court
The Vice-Chancellor :
The question is, whether the legacy given to Mary Phelan lapsed or belongs to her children, as legatees in her place?
I take it that this will was drawn by a professional hand. There are various indications of the fact about it; and it is the more surprising that such words should have been employed as are here used to express the meaning of the testatrix, which must have been very plain and simple, one way or the other, and very easily understood by a draughtsman.
If she meant to make her niece the sole legatee of the six thousand dollars, why were the words “ and to her…
2Cited by5 opinions
- In Re the Final Judicial Settlement of the Accounts of WellsNew York Court of Appeals · 1889
- Keniston v. AdamsSupreme Judicial Court of Maine · 1888
- Zabriskie v. HuylerNew Jersey Court of Chancery · 1902
- Hand v. MarcyNew Jersey Court of Chancery · 1877
- Williams v. SeamanNew York Surrogate's Court · 1877