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 2,000l.: I also

return him his bond for 400l., 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).

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 schedulewere 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).

for the

where the legacy is given to

the legatee and

his executors, &c.:.

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 sentatives, if the legatee dies before the testator, though the executors are named, yet the legacy is lost words "executors, administrators and assigns, only descriptive of the interest bequeathed; 4 (2) See further on this subject, Elliott

. Davenport, 1 P. Wms. 83. Toplis v. Baker, 2 Cox, 118. Izon v. Butler, 2 Price, 34. Att.-Gen. v. Holbrook, 3 Y. & J. 114; S. C. 12 Price, 407.

(a) Williamson v. Naylor, 3 Y & Coll. 208. See also Accord. Philips v. Philips, 3 Hare, 281. Where a testator, who was a certificated bankrupt, directed his executors to pay in full all his creditors who had proved in the bankruptcy, it was held that this direction must be regarded as a bounty, not only in favor of those creditors who survived the testator, but of the representatives of those who predeceased him; for that his object was to discharge a moral duty, which object could not be attained if his bounty was to be limited to those creditors who survived him: Re Sowerby's Trust, coram Wood, V.-C., 2

&c.," are considered as and those who take by Kay & J. 630. S. C., nomine Turner v. Martin, coram Lord Cranworth, C., 7 De Gex, M. & G. 429.

4. The use of such words of limitation as "heirs," "heirs and assigns," with or without the conjunction "and" or "or," will not prevent a lapse, unless it is clear from the context that the testator intended to provide for a substitution in case of the death of the first named legatee or devisee. 3 Jarman on Wills 620. Thus, in Kimball v. Story, 108 Mass. 382, where the gift was "to A., his heirs and assigns," the words were held to be words of limitation, not preventive of a lapse by A.'s death before that of the testator. So too, Armstrong . Moran, 1 Bradf. 314, to A. and his children and the children of B., to be equally divided "between them and their heirs and assigns," [*1074]

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

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 executors, 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 representatives, but as persona designatæ (ƒ).

Stires v. Van Rensselaer, 2 Bradf. 172; Weishaupt v. Brehman, 5 Binn. 115; among testator's six children "or their heirs," Sword v. Adams, 3 Yea. 34; "to A., her heirs and assigns," Comfort v. Mather, 2 Watts & S. 450, same words. So, to A. "and her heirs." Maxwell v. Featherston, 83 Ind. 339; Kimball v. Chappel, 27 Abb. N. C. 437; Dickinson v. Purvis, 8 Serg. & R. 71. So, to A. and B. to be equally divided between them or their heirs," Sloan v. Hanse, 2 Rawle 28 or to "A. and so to his heirs and assigns forever," Keniston v. Adams, 80 Me. 290; or to A. and B., "their heirs or assigns, to be equally divided between them," Hand v. Marcy, 1 Stew. (N. J.) 59. Contra, by reason of context, "to A. and his heirs." Hawn v. Banks, 4 Edw. 664; Davis v. Taul, 6 Dana 52. But a legacy to four sisters by name "and their heirs" was allowed to lapse where all died before testator, leaving issue, although two of them were known to him to be dead when the will was made. Barnett's Appeal, 104 Pa. St. 342.

(b) Elliott v. Davenport, 1 PWms. 83. Corbyn v. French, 4 Ves. 435. Shut

tleworth v. Greaves, 4 Mylne & Cr. 35. Ante, pp. 991, *992.

(c) Corbyn v. French, 4 Ves. 418, 435. It will be observed, that the substitution of the executors in this case did not refer to the legatee's dying before the testator, but to his dying before the time of the payment of the legacy: See Accord. Bone v. Cook, M'Clel. 169. S. C. 13 Price, 332.

(d) Tidwell v. Ariel, 3 Madd. 403. See also Smith v. Oliver, 11 Beav. 494. Thompson v. Whitelock, 4 De G. & J. 490.

(e) Re Porter's Trusts, 4 Kay & J. 188; and see the observations of Wood, V.-C., 4 Kay & J. 196, as to the construction put on the word 'heir" in Tidwell v. Ariel, ubi sup. But where a testator bequeathed a siiver cup to Lord S. and his heirs as a heirloom, and the person who was Lord S. at the date of the will died before the testator leaving a successor to the title, it was held that the bequest lapsed. Re Whorwood,

34 C. D. 446.

(f) See ante, p. *967, et seq., as to the meaning of the word "heir" in such

cases.

In Edwards v. Saloway (g) there was a gift of residue to the testator's wife for life to her separate use, with an absolute power of appointing the principal by deed or will, and a gift in default of such appointment to her next of kin, as in case of an intestacy: And Lord Cottenham, C., held, that the gift of the principal had not lapsed by the death of the wife in the testator's lifetime, but that her next of kin, according to the statute, were entitled to the benefit of it (h). But this general rule may be controlled by the manifest intention of the testator, appearing on the face of the will, that the legacy shall not lapse,5 and by his distinctly providing a substitute for the legatee dying in his lifetime (i); though, in order to effect this object, he must declare either expressly, or in terms from which his intention can be with sufficient clearness collected, what person or persons he intends to substitute for the legatee dying in his lifetime (k). Thus where there is a bequest "to A. or his personal substitution *representatives," or "to A. or his heirs," the word

'or," generally speaking, implies a substitution, so as to prevent a lapse (7).6

(g) 2 Phil. C. C. 625.

(h) See accord. Nicholls v. Haviland, 1 K. & J. 504. But see Baker v. Hanbury, 3 Russ. Ch. C. 340.

5. "Even the most explicit declaration that the devise shall not lapse is not sufficient to prevent it; there must be either survivorship (as in a joint devise) or limitation over." Craighead t. Given, 10 Serg. & R. 351. So too, 3 Jarman on Wills 619; Theobald on Wills 443; 2 Redfield on Wills 163; Hutchinson's Appeal, 34 Conn. 300; Herbert v. Smith, Saxt. 141.

(4) Sibley v. Cook, 3 Atk. 572. Toplis r. Baker, 2 Cox, 121. Bridge v. Abbott, 3 Bro. C. C. 224. Browne v. Hope, L. R. 14. Eq. 343. But it is not allowable to prove this intention by evidence dehors the will. Maybank v. Brooks, 1 Bro. C. C. 84.

(k) Browne v. Hope, L. R. 14 Eq. 343. Gittings v. McDermott, 2 M. & K. 69, and the authorities collected ante, pp. *977, *978; compare pp. *967, *968.

this rule con

trolled by the

manifest inten

tion of testator, a declared for the

substitute being

legatee :

im

plied by a bequest

to "A. or his personal representa.

tives," or to "A.

or his heirs: "

6. The words "heirs," "executors," &c., superadded to the name of a legatee or devisee are generally words of limitation merely, giving no estate by way of substitution. Thus, a gift to testator's brothers and sisters "and their heirs," Smith v. Folwell, 1 Binn. 546; or to children "or their heirs," Patterson v. Hawthorn, 12 Serg. & R. 112; King v. King, 1 Watts & S. 205; Buckley v. Reed, 15 Penna. St. 83; Manderson v. Lukens, 23 Id. 31; McGill's Appeal, 61 Id. 46; Mull v. Mull, 81 Id. 393; or to A. "or his legal representatives," Estate of Fleck, 1 Pars. Cas. 126; "and his heirs," Dickinson v. Purvis, 8 Serg. & R. 71; "his heirs and assigns," Comfort v. Mather, 2 Watts & S. 450; or after a life estate to A., remainder to the children of B., "or to the issue of deceased children as shall be living" at the time of A.'s death, Brown v. Williams, 5 R. I. 318. So, a gift by substitution to A.'s issue will not be implied from a bequest to A., and if [*1076]

But in the case of a bequest to children, &c., in a class, and the representatives of such as are dead, a question may arise whether the representatives are to take by way of original substantive limitation, or by way of substitution only.7 If by the latter, none are entitled but such as represent parties who could have taken as original legaA gift to issue is substitutional, when the share which the issue are to take is, by a prior clause, expressed to be given to the parent of such issue, and a gift to issue is an original gift, when the share which the issue are to take is not, by a prior clause, expressed to be given to the parent of such issue (m).