In Re Estate of Bennett

HARRISON, J.

The question involved in this appeal is the construction to be given to one of the clauses of the decedent’s will. The will is olographic, and dated March 1, 1895. By it the testator, after bequeathing five hundred dollars to a Mrs. Fanning, five hundred dollars to his half-brother, James Bennett, one thousand dollars to his half-sister, Emma Morris, and five hundred dollars to his niece, Alzadie B. Morris, gave the residue of his estate to his sister, Frances Ann Carman, of Hempstead, in the state of New York. After making this disposition of his estate, he added the following clause: “In case of the death of any of the legatees of my estate under this will before distribution, then and in that case the portion so bequeathed to such legatee shall revert to the children of the family of which such legatee is a member, share and share alike.” The residuary legatee, Mrs. Carman, died October 31, 1897, after the making of the will, and during the lifetime of the testator, leaving eight children surviving her. The testator died April 26, 1899. The testator had had four brothers and sisters of the whole blood, who died prior to the making of the will, each of whom left issue now living. The brother and sister of the half blood named in his will are living, and issue of each of them is also now living, the niece named in the will being the daughter of the half-sister. The four specific legacies have been paid to the respective legatees, and by the decree of distribution the residue of the estate was distributed to the eight surviving children of Mrs. Carman. James H. Bennett and Emma Morris, the brother and sister of the half blood, have appealed, claiming that the whole of the residue should have been distributed to them.

In support of their appeal, it is urged that, under a proper construction of the will, it was the intention of the testator that his estate should go to the surviving members of his own family, rather than to his relatives in a more remote degree;

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that by directing that- in a certain contingency his bequests, including the residue, should “revert,” he indicated his wish that this residue should “come back” to its original position as a portion of his estate, and thence go to the appellants as the only surviving children of the family of which the testator was a member.