Craighead v. Given

IN ERROR. Testator ordered the residue of his real and personal estate to be sold, and out of the moneys arising therefrom, after the payment of debts and certain legacies, gave legacies to his seven children and grandchildren, and directed that if the money should not .be sufficient, to pay the legacies bequeathed, then the last mentioned legacies to his children and grandchildren should abate proportion-ably, but if it should be more than sufficient, then the residue should be divided amongst the last mentioned legatees proportionably. One of the last mentioned legatees died in the lifetime of the testator; held, that this legacy was lapsed.

A case was stated for the opinion of the Court of Common Pleas of Cumberland county, to which this writ of error, was directed, in an action for a distributive share, brought by Thomas Craig-head anff Martha his wife, against James Given, administrator, cum testamento annexo of Joseph Semple, deceased, which it wag agreed should be considered in the nature of a special verdict. The court below entered judgment for the defendant. Joseph Semple, the defendant’s testator, died in December 1811, leaving issue, four children, namely, Martha, intermarried with Robert Beatty, David Semple, Joseph Semple, Jane Semple, and two grandchildren, namely, Martha Sterrett and Elizabeth Sterrett, children of John Sterrett and Sarah his wife, which said Sarah died in the life time of her father the testator. By his last will and testament in writing, duly executed, and bearing date the 14th July, 1810, after bequeathing certain legacies he directed as follows. And as touching all the rest, residue, and remainder of my estate, real and personal, of what kind or nature soever the same may be, in the county of Cumberland, or elsewhere,- I direct the same to be sold by my executors hereinafter named,- in such manner as they may think best, and if practicable within one year after my decease-; but if not practicable, then as soon after the expiration of one year as it may be possible to dispose'of the same to advantage.For which purpose I do hereby empower my said executors or the survivor of them to sell and dispose of the same, and also to execute all such deed or deeds of conveyance to the purchaser or purchasers of my real estate as may be necessary for securing to him, her or them the right in fee simple, And the money. arising from the sale thereof, my just debts, funeral expenses, and the above mentioned legacies being first paid, I give and dispose of the same in the following manner, to wit:- To my daughter Mar-< tha Beatty 1533 dollars, to David Semple 2044 dollars, to my son Joseph Semple 40S9 dollars, to my two daughters Jane and Eliza Semple each 2044 dollars, and to my two grandchildren Martha Sterrett and Elizabeth Sterrett, children of my daughter, the late Sarah Sterrett, deceased, each 311 dollars. If the money arising from the sale of my estate shall not be sufficient to pay the ahove mentioned legacies, then, and in that case, the deficiency shall be deducted from the legacies bequeathed to Martha Beatty, David Semple, Joseph Semple, Jane Semple, Eliza Semple, and my two grandchildren Martha Sterrett and Eliza Sterrett, each in proportion to their respective legacies; but if the' money arising from the sale of my estate shall amount to more than what is sufficient to pay the above mentioned legacies, then and in that case, the residue shall be divided, amongst the said Martha Beatty, David Semple, Joseph Semple,. Jane Semple, Elizabeth Semple, and my two grand children Martha Sterrett, -and Eliza Sterrett, in proportion to their respective legacies. And it is also to be understood that the legacy bequeathed to my son David Semple, is in addition to what I have already given him before the first day of June in the year of our Lord, 1810; but whatever I shall have given him after the first day of June, 1810, shall be a set-off in said legacy. And lastly I nominate, constitute, and appoint my son Joseph Semple, and James MiCormick, esq. to be my executors. After the date of the will and before the death of the testator, his daughter Eliza Semple, a legatee in the will, died unmarried without issue. After the death of said testator, his grand-daughter, Martha Sterrett,- intermarried with Thomas Craighead, who with his wife, were the plaintiffs in this action. Thomas Craig-head and Martha his wife had received payment in full of the specific legacy bequeathed to the said Martha. And both the executors named in the said will, had, since the decease of said testator, died intestate, and letters of administration of the goods and chattels of the said testator, which remained unadministered, by the said executors, with a copy of the said will and testament annexed, had been granted in due form of law to the defendant James Given. The question submitted for the opinion of the court, was, whether the legacy of 2044 dollars bequeathed by said testator to his daughter Elizabeth, who died in his life time, lapsed by the death •of the said legatee, and since the death of the said testator, remains subject to distribution betvveen the children and grandchildren of the said testator, according to the act of assembly, regulating the distribution of intestate’s estates; and also, whether, in case there is a surplus arising from the sale of the testator’s real estate, after paying the specific legacies, Elizabeth’s share is also lapsed and subject to distribution.- If the court shall be of opinion that the said legacy of 2044 dollars, did so lapse, and is subject to distribution as aforesaid, then judgment quod computet to be entered, and auditors to be appointed, by the court, to ascertain and report the sum due to the said Thomas Craighead and Martha his wife in right of the said Martha, as one of the heirs and distributees of the said testator, out of the said legacy, or sum of 2044 dollars. But if the court shall be of opinion that the plaintiff’s are not so entitled, then judgment to be entered for the defendant.