Opinion
11-04-1896
PALME v. MUNSELL et al.
Willard P. Voorhees, for complainant Voorhees & Booraem, for defendant Mary A. Munsell.
Action by Joseph R. Palmer, as executor of the estate of Henry H. Palmer, deceased, against Mary A. Munsell and others, for the construction of a will. Decree against defendant Mary A. Munsell, and in favor of defendant Jennie Wackenbarth.
Willard P. Voorhees, for complainant Voorhees & Booraem, for defendant Mary A. Munsell.
REED, V. C.This bill is filed for the construction of the will of Henry H. Palmer. The first question is whether the legacy given to his nephew Henry H. Parsons, as well as a legacy given to L. Virginia McAlpine, both of whom died in the lifetime of the testator, lapsed. The second question is which of two nieces was the intended legatee of a gift of $2,000.
The answer to the first question seems to be free from difficulty. It appears that Henry H. Parsons died, leaving no issue, but leaving a will, in which Mary A. Munsell, a sister, was named as executrix, who insists that as next of kin or heir at law of Henry H. Parsons, she is entitled to the legacy of $60,000 left to Henry H. Parsons in the said will of Henry H. Palmer. The rule that a gift to a legatee who predeceases his testator lapses is, in this instance, left unaffected by the statute (3 Gen. St. p. 3762, § 34); for, while the legatee is a descendant of a sister of the testator, he failed to leave any child or a descendant of any child of his own. The sister of the legatee rests her claim upon one clause in the will, which is in the following language: "It is my desire that all parties named in this, my will, to be paid in money, or its equivalent as soon as practicable after my debts are paid (if any), as nearly all are of age; all being to them and their heirs, for their own disposal." The view advanced is that the word "heirs" is a word of substitution, and not a word of limitation. This notion is clearly erroneous. While the English courts have held that a legacy or devise to one or his heirs will make the word "heirs" substitutional (although this rule is not assented to with unanimity by the courts in this country), yet it is entirely settled both in England and this country that, in case of a gift or devise to one and his heirs, the word "heirs" is a word of limitation. 1 Jarm. Wills, 617; 2 Redf. Ex'rs, 485. This rule was settled in this state in the case of Hand v. Marcy, 28 N. J. Eq. 59. This rule is one of construction, and, if in other parts of the will there is to be found an express testamentary intention that there is to be no lapse, such intention will control. There is nothing to be found in this instrument to modify the force of the words employed. The legacy of Henry H. Parsons therefore lapsed, and for the same reason the legacy of $5,000 to L. Virginia McAlpine lapsed.
The second question is one of some difficulty. it involves a latent ambiguity in respect to the identity of a legatee. The gift is in the following form: "Give and bequeath to my niece —— Wackenbarth, in New Orleans, $2,000." It appears from the pleadings that the testator had the following relations of the name of Wackenbarth then living in New Orleans: Jane Wackenbarth, a niece, and two daughters of the said Jane Wackenbarth, namely, Alice Wackenbarth and Jennie Wackenbarth. Jane was his niece, and Jennie his grandniece; but any value which the use of the word "niece" would have, as an aid in the identification of the legatee, disappears when the fact is shown that the immediately preceding named legatee is Alice, who is also a grandniece, but who is styled by the testator his niece. It therefore appears that the testator did not have in mind a distinction between "niece" and "grandniece." had there been no bequest to Alice, I would have had no doubt that he intended the gift for his niece Jane. But the fact that there is a gift to Alice, describing her as his niece, of $2,000, followed immediately by a gift to ——, as his niece, of the same sum, leads me to the conclusion that he meant Jennie, the sister of Alice. I will so advise.