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in right, so as to be transmissible to the executors or administrators of the party dying before the contingency on which they depend, takes effect : But where that contingency is the endurance of life of the party till a particular period, the interest will obviously be altogether extinguished by his death before that period. The object of the present section is to ascertain the circumstances

under which a legacy is to be regarded as a vested Object of section.

interest, or as contingent on the event of the endurance of the life of the legatee : or, in other words, in what cases the interest in a legacy will be so fixed as to be transmissible to the executor or administrator of the legatee, though he die before the time arrives for the payment of the money; and on the other hand, in what cases the legacy will lapse by the death of the legatee.

The general principle, as to the lapse of legacies by the death of General principle

the legatee, may be stated to be, that if the legatee die as to lapse of leg before the testator's decease, or before any other condilegatee.

tion precedent to the vesting of the legacy is performed, the legacy lapses, and is not payable to the executors or administrators of the legatee. It is proposed, in pursuing this subject, to treat, 1st. Of legacies lapsed by the death of the legatee before the death of the testator : 2ndly. Of legacies lapsed by the death of the legatee after the death of the testator : 3rdly. Of the lapse of legacies charged on a real fund : 4th. Of the lapse of legacies charged on a mixed fund of realty and personalty.

acies by death of

*1. Of legacies lapsed by the death of the legatee before the testator.

It has been established from the earliest periods, both in the General rnle that ecclesiastical courts and in equity, that unless the legunless the legatee survive the tes. atee survive the testator, the legacy is extinguished : 1 tator the legacy lapses :

neither can the executors or administrators of the leg. 1. “The liability of a testamentary Dana 205 ; Alexander v. Waller, 6 gift to failure (or, as it is generally Bush 341 ; Ballard v. Ballard, 18 Pick. termed, lapse) by reason of the decease 41 ; Comfort v. Mather, 2 Watts & S. of its object in the testator's lifetime, is 450 ; Prescott o. Prescott, 7 Metc. 145 ; a necessary consequence of the ambu. Birdsall v. Hewlett, 1 Paige 32 ; Trippe latory nature of wills; which, not tak- v. Frazier, 4 Har. & J. 446 ; Dunlap r. ing effect until the death of the testator, Dunlap, 4 Desaus. 314 ; Davis v. Taul, can communicate no benefit to persons 6 Dana 52; Martin v. Lachasse, 47 Mo. who previously die,"1 Jarman on Wills 591 ; Glenn 0. Belt, 7 Gill & J. 362 ; 617; 2 Redfield on Wills 157 ; 1 Roper Torrance o. Torrance, 4 Md. 11 ; Letler on Legacies 463; Theobald on Wills v. Rowland, Phill. Eq. 143 ; Tongue v. 442 ; 4 Kent 541 ; Gore v. Stevens, 1 Nutwell, 13 Md. 415 ; Perry v. Logan,

atee demand the same (v). And Swinburne puts the case of the testator and legatee being drowned in the same ship, or both being struck to death by the fall of a house, in which case he lays it down, that as they both died at the same time, the legacy is not due, and consequently not transmissible to the executors or administrators of the legatee. In cases of this kind the question of survivorship is, by the law of England, a matter of evidence merely, and, in the absence of evidence, there is no rule or conclusion of law on the subject :2 And as the onus of proof lies on the representatives of the

5 Rich. Eq. 202 ; especially where the Robins, 6 Gill & J. 507; Helms v. legatee's death occurred and was known Franciscus, 2 Bland Ch. 544, 560. to testator before he made the will, In Birdsall v. Hewlett, ubi supra, Stennett v. Hall, 74 Ia. 279. And Chancellor Walworth says : “ It is a devise to testator's wife will lapse by undoubtedly a general rule that legher death before him, although she acies charged upon the real estate and had conveyed the land to him before payable at a future day are not vested marriage in consideration of the mar- and become lapsed if the legatee dies riage. Pitman v. Burr, 79 Mich. 539. before the time of payment arrives. The lapse of a bequest to A. carries This rule was at first adopted without with it the proviso that A.'s father any exceptions, and in direct opposition (who survived testator) should have the to that which existed in relation to leg. interest for his lifetime. Cook v. Lan- acies payable out of the personal estate. ning, 13 Stew. (N. J.) 369. So, where This was done for the benefit of the the beneficiary dies before the testator, heir-at-law, who was a particular favorthe gift will lapse although in the form ite of the English courts. I am not of a trust for his support, Burleyson v. aware that it has ever been extended to Whitley, 97 N. C. 295 ; or a power to a case where the estate was given to sell and pay him the proceeds, Beeson a stranger upon the express condition v. Breading, 77 Pa. St. 156. But the that he paid the legacy charged death before the testator of his child thereon ; and the rule has long since A. will not destroy a gift to another been much narrowed down, even as child B. of the share which A, would between the legatees and the heir-athave received. Levy v. Barrett, 7 S. law." C. 25.

(o) Swinb. Pt. 7, s. 23, pl. 1. Godolph. Where a lapsed legacy is charged on Pt. 3, c. 25, s. 25. Wentw. Off. Ex. land devised to another, the charge, so 436, 14th edit. far as it is a mere charge and not a con- 2. Moehring v. Mitchell, 1 Barb. dition, lapses. 1 Jarman on Wills 631 ; Ch. 264 ; Coye v. Leach, 8 Met. 371 ; 1 Roper on Legacies 500 ; 2 Redfield Newell v. Nichols, 75 N. Y. 78: Stinde on Wills 172. See Macknet v. Macknet, 0. Goodrich, 3 Redf. 87; Russell v. 9 C. E. Gr. 277 ; Birdsall 0. Hewlett, 1 Hallett, 23 Kan. 276. But where both Paige 32 ; Harris v. Fly, 7 Paige 421 ; husband and wife perished at sea on Hillis v. Hillis, 16 Hun 76 ; Whitehead a wreck caused by explosion of the o. Thompson, 79 N. C. 450 ; Morris v. boiler, and the wife was last seen, and Jameson, 2 Peur. & W. 399 ; Spence v. was crying out after the explosion for

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legatee, they cannot claim the legacy, unless they can produce positive evidence that he was the survivor (a).

*Not only in cases of bequests of money, or of other chattels in possession, but also of a debt due from the legatee to the testator, the legacy will lapse by his death before the testator, and the executor of the legatee must pay the money :3 Thus in Maitland v. Adair (y), the words in the will were, “I devise to my brother 2,0001.: I also return him his bond for 4001., with interest thereon, which he owes me : " The brother died in the lifetime of the testator : The bond was a joint bond in the Scotch form, by the testator's brother and son : The question was, whether the disposition of the bond by the will amounted to a release, or was only a legacy, and therefore lapsed : Lord Loughborough, C., held very clearly, that it was a legacy to the brother which had lapsed (z).

503.

her husband, it was held to be evidence of her having survived him. Pell v. Ball, Cheves Eq. 99. That one was last seen alive has been held, however, to raise no presumption of his survivorship. Matter of Ridgeway, 4 Redf. 226. In California, the statute prescribes rules for determining survivorship in such cases. Code Civ. Pro. 8 1963. But these do not exclude evidence aliunde against the presumption. Sanders v. Simcich, 65 Cal. 50.

(x) Underwood v. Wing, 4 De Gex, M. & G. 633. 19 Beav. 459. Taylor v. Diplock, 2 Phillim. 261, ante, p. *402. Satterthwaite v. Powell, 1 Curt. 705. Barnett v. Tugwell, 31 Beav. 232. It will be observed that Swinburne, in the passage above cited, assumes that the testator and legatee must be taken to have died at the same time: And it appears to have been sometimes deemed a rule in the Ecclesiastical Court, that they must, under such circumstances, be presumed to have perished at the same moment, unless proof can be obtained as to the exact time when either of them died : In the Goods of Selwyn, 3 Hagg. 749. But it can hardly be assumed as a fact that two human beings ceased to breathe at the same moment of time : Underwood v. Wing, 4 De Gex, M. & G. 661, by Lord Cranworth, C. And in the same case, in the House of Lords, sub nom. Wing o. Angrave, 8 H. L. C. 183, it was laid down that there is no presumption of law arising from age or sex as to survivorship among persons whose death

is occasioned by one and the same cause : Nor is there any presumption of law that all died at the same time. But the question is one of fact, depending wholly on evidence; and if the evi. dence does not establish the survivorship of any one, the law will treat it as matter incapable of being determined : The onus probandi is on the person asserting the affirmative : See In the Goods of Shilling, Dea. & Sw. 183. See also, on this subject, Wright v. Sarmuda, reported in the notes to 2 Phillim. 266, and in Evans' edit. of 2 Salk. 593 (nomine Wright 0. Netherwood). General Stanwix's Case, reported as Rex 0. Dr. Hay, 1 W. Bl. 640. Broughton o. Randall, Cro. Eliz.

Hitchcock 0. Beardsley, West's Cas. temp. Hard. 445 (stated ante, p. *742). Colvin v. Procurator-Gen., 1 Hagg. 92. Sillick v. Booth, 1 Y. & Coll. Ch. C. 117, 126. Ommaney v. Stilwell, 23 Beav. 328. In the Goods of Wainwright, 1 Sw. & Tr. 257. In the Goods of Wheeler, 31 L. J., P. M. & A. 40. In the Goods of Carmichael, 32 L. J., P. M. & A. 70. Re Green's Settlement, L. R. 1 Eq. 288. In the Goods of Alston, [1892] P. 142.

3. So where the legacy is to A., with a direction that the amount due from A.'s son B. to the testator be applied on account of the legacy, both legacy and direction as to B. will fail on A.'s death before testator. University Appeal, 97 Pa. St. 187.

(y) 3 Ves. 231.

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Where, however, a testator by his will declared that one-fifth of the residue of his personal estate should be divided amongst certain of his creditors named in a schedule to his will, and the schedule contained both the names of the creditors and the debts due to them respectively, the remedy for the recovery of which was barred by the Statute of Limitations : it was held by Lord Lyndhurst, C. B., and afterward by Alderson, B., that the parties so named in the schedule were not to be considered as legatees, but as creditors, and consequently that the representatives of such as *died in the testator's lifetime were entitled to the benefit of the will (a).

Even in a case where a legacy is given to a man and his executors, administrators, and assigns, or to a man and his repre- even where the

is given to sentatives, if the legatee dies before the testator, though the legate and

his executors, &c.:. the executors are named, yet the legacy is lost : for the words “executors, administrators and assigns, &c.,” are considered as only descriptive of the interest bequeathed ;4 and those who take by

(2) See further on this subject, Elliott Kay & J. 630. S. C., nomine Turner 0. Davenport, 1 P. Wms. 83. Toplis v. v. Martin, coram Lord Cranworth, C., Baker, 2 Cox, 118. Izon 0. Butler, 2 7 De Gex, M. & G. 429. Price, 34. Att.-Gen. r. Holbrook, 3 Y. 4. The use of such words of limita& J. 114 ; S. C. 12 Price, 407.

tion as “heirs," "heirs and assigns,”: (a) Williamson v. Naylor, 3 Y & Coll. with or without the conjunction "and" 208. See also Accord. Philips v. Philips, or “or," will not prevent a lapse, unless 3 Hare, 281. Where a testator, who it is clear from the context that the teswas a certificated bankrupt, directed his tator intended to provide for a substituexecutors to pay in full all his creditors tion in case of the death of the first who had proved in the bankruptcy, it named legatee or devisee. 3 Jarman on was held that this direction must be Wills 620. Thus, in Kimball v. Story, regarded as a bounty, not only in favor 108 Mass. 382, where the gift was “10 of those creditors who survived the A., his heirs and assigns,” the words testator, but of the representatives of were held to be words of limitation, not those who predeceased him ; for that preventive of a lapse by A.'s death his object was to discharge a moral before that of the testator. So too, duty, which object could not be attained Armstrong o. Moran, 1 Bradf. 314, to if his bounty was to be limited to those A. and his children and the children of creditors who survived him : Re Sow- B., to be equally divided “between erby's Trust, coram Wood, V.-C., 2 them and their heirs and assigns,"

[*1074]

representation only cannot be entitled to anything to which the person they represent never had any title (6).

So where a legacy is given to A. for life, and after the death of A. to B. or his proper representatives, in case of his dying before A., if B. dies in the lifetime of the testator, the legacy lapses (c). Again, if a legacy be given to a man, and directed to be paid to him or his excecutors, or administrators, or personal representatives, or to his heirs, at the end of a year after the testator's death, and the legatee die before the testator, the legacy intended for him will lapse (d).

But if instead of the words “personal representatives,” the word “heirs” be used, it has been held that this shows an *intention on the part of the testator, that the persons he designates as “heirs” are to take by way of substitution whenever the legatee may die, and there shall be no lapse though he die in the lifetime of the testator (e). In such a case the heirs do not take by way of transmission or as repre. sentatives, but as persona designate (J). Stires v. Van Rensselaer, 2 Bradf. 172 ; tleworth v. Greaves, 4 Mylne & Cr. 35. Weishauptv. Brehman, 5 Binn. 115 ; Ante, pp. *991, *992. among testator's six children “or their (c) Corbyn v. French, 4 Ves. 418, 435. heirs,” Sword v. Adams, 3 Yea. 34 ; "to It will be observed, that the substituA., her heirs and assigns,” Comfort v. tion of the executors in this case did Mather, 2 Watts & S. 450, same words. not refer to the legatee's dying before So, to A. “and her heirs.” Maxwell v. the testator, but to his dying before the Featherston, 83 Ind. 339; Kimball v. time of the payment of the legacy: See Chappel, 27 Abb. N. C. 437 ; Dickinson Accord. Bone v. Cook, M'Clel. 169. 0. Purvis, 8 Serg. & R. 71. So, to A. S. C. 13 Price, 33.2. and B. “ to be equally divided between (d) Tidwell 0. Ariel, 3 Madd. 403. them or their heirs," Sloan v. Hanse, See also Smith v. Oliver, 11 Beav. 494. 2 Rawle 28; or to “A, and so to his Thompson v. Whitelock, 4 De G. & heirs and assigns forever," Keniston v. J. 490. Adams, 80 Me. 290 ; or to A. and B., (e) Re Porter's Trusts, 4 Kay & J. 188 ; “their heirs or assigns, to be equally and see the observations of Wood, divided between them,”

Hand 0.

V.-C., 4 Kay & J. 196, as to the conMarcy, 1 Stew. (N. J.) 59. Contra, hy struction put on the word “heir” in reason of context, “to A. and his Tidwell v. Ariel, ubi sup. But where a heirs.” Hawn v. Banks, 4 Edw. 664 ; testator bequeathed a silver cup to Lord Davis v. Taul, 6 Dana 52.

S. and his heirs as a heirloom, and the legacy to four sisters by name “and person who was Lord S. at the date of their heirs” was allowed to lapse where the will died before the testator leaving all died before testator, leaving issue, a successor to the title, it was held that although two of them were known to the bequest lapsed, Re Whorwood, him to be dead when the will was made. 34 C. D. 446. Barnett's Appeal, 104 Pa. St. 342.

(f ) See ante, p. *967, et seq., as to the (6) Elliott v. Davenport, 1 P Wms. 83. meaning of the word “heir" in such Corbyn o. French, 4 Ves. 435. Shut

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