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visions of this Will." Stephenson 0. District of Columbia, lapsed and void Ontario Orphan Asylum, 27 Hun 380. devises go to the residuary devisee (1857 Void legacies have been said not to be R. C. c. 52, § 19). In Illinois, a lapsed included in a residue "after paying the gift to a child or grandchild, dying legacies,” in New Jersey, Detweiler v. without issue before testator, formerly Hartmann, 10 Stew. (N. J.) 347 ; but went as in case of intestacy (1845 R. S. they are so included in other states, 539, § 14). In Kentucky, void gifts of Fite v. Beasley, 12 Lea 328 ; Hulin v. real or personal property do not go to Squires, 44 N. Y. S. R. 334 ; Riker v. the residuary legatee, but as in case of Cornwell, 113 N. Y. 115, where, how- intestacy (1887 G. S. c. 113, § 20). In ever, the gift was of the residue, “ in. Minnesota, estate “not disposed of" cluding void and lapsed legacies." by will goes as in case of intestacy But, in general, lapsed legacies will (1891 Stats. § 5627). In Mississippi, fall into the residue, although that be- charitable devises which are declared quest is made “after payment of all void go to the heir as though there the legacies.” Banks v. Phelan, 4 were no will (1891 An. Code, $ 4500). Barb. 80; Hillis v. Hillis, 16 Hun 76 ; In North Carolina, lapsed and void deKing v. Woodhull, 3 Edw. Ch. 79; vises go to the residuary legatee, unless Tindall o. Tindall, 9 C. E. Gr. 512, a contrary intention appear (1883 Code, revg. 8 Id. 244; or of “all my estate § 2142). So, in Pennsylvania, since not hereinbefore devised and be. 1879 (1883 Purd. Dig. p. 171, § 24). queathed.” Estate of Hinckley, My- So, in Virginia (1887 Code, & 2524) and rick's Prob. 189; Matter of L'Homme- West Virginia (1891 Code, c. 91, § 13). dieu, 32 Hun 10. But see, contra, In the absence of statutory provision Hemphill v. Moody, 64 Ala. 468. And to the contrary, lapsed legacies go to void legacies will fall into a residue of the residuary legatee. Macknet
all property not specified in this my Macknet, 9 C. E. Gr. 277; Benson o. Will," Swinton v. Egleston, 3 Rich. Eq. Benson, 96 N. Y. 499, revg. Bullard 201 ; or even of all his property v. Benson, 31 Hun 104; Estate of cept” these and other designated leg. Powell, 138 Pa. St. 322 ; Mann o. Hyde, acies. Reeves v. Reeves, 5 Lea 653. 71 Mich. 278; Matter of Bonnet, 46
Lapsed and void legacies. In Ala- Hun 529 ; Kimball v. Chappel, 27 Abb. bama, all property undisposed of by will N. C. 437; Matter of Batchelder, 147 goes as in case of intestacy (1886 Code, Mass. 465; Silcox o. Nelson, 24 Ga. 84; $ 1952). A devise to a person or cor- Thweatt v. Redd, 50 Ga. 181 ; Bendall poration incapable by law of taking v. Bendall, 24 Ala. 295 ; Massey's Apthe same goes to the next of kin, the peal, 88 Pa. St. 470 ; Prescott o. Presresiduary devisee, the husband or wife, cott, 7 Met. 141; King 0. Strong, 9 or the state, in the order named. Id. Paige 94 ; Deford 0. Deford, 36 Md. § 1947. This covers à void legacy. 168; Helms v. Franciscus, 2 Bland Johnson v. Holifield, 82 Ala. 123. In 546 ; Hays v. Wright, 43 Md. 122 ; California, a residuary legacy "em- Cox 0. Harris, 17 Md. 23; Hatcher o. braces only that which remains after Robertson, 4 Strobh. Eq. 179; Cunall the bequests of the Will are dis. ningham v. Cunningham, 18 B. Mon. charged” (Civ. Code, $ 1357). In Colo- 22 ; Mabry v. Stafford, 88 N. C. 602 ; rado, a gift to a child or grandchild, Taylor v. Lucas, 4 Hawks 215; Allison lapsing by death without issue before 0. Allison, 3 Jones Eq. 236. This aptestator's death, goes as intestate prop- plies to lapsed annuities as well as erty (1891 An. Stats. $ 4660). In the pecuniary legacies, Dulaney o. Middle
ton, 72 Md. 67 ; and to legacies to tenants in common not constituting a class. Collins v. Bergen, 15 Stew (N. J.) 57. But if the residue is only partial in its nature, a lapsed legacy will not fall into it. Simms 0. Garrot, 1 Dev. & B. Eq. 393.
A lapsed legacy is more readily in. cluded in a residuary clause than one which is void for being against the policy of the law. Allison v. Allison, 3 Jones Eq. 236. But, in general, void legacies also fall into the residue, Booth v. Baptist Church, 126 N. Y. 215 ; Onderdonk v. Onderdonk, 127 N. Y. 196 ; Vail v. Vail, 4 Paige 317; Matter of Bonnet, 46 Hun 529; Matter of Arden, 1 Connoly 159 ; Crum v. Bliss, 47 Conn. 242; Gallagher v. Rowan, 86 Va. 823 ; Pool v. Harrison, 18 Ala. 515; Wood v. Mitchell, 32 Ga. 623; Cox o. Harris, 17 Md. 23; Barton v. King, 41 Miss. 288; Hamberlin v. Terry, 1 Sm. & M. Ch. 589 ; Domestic &c. Mission's Appeal, 30 Pa. St. 425 ; Lingan v. Carroll, 3 H. & McH. 333 ; Estate of Woolmer, 3 Whart. 477; Matter of Sargeant, 11 Pa. St. 8; although the testator supposed that it was valid and thereby made the residue greater than he intended. Thayer v. Wellington, 9 Allen 283. But the will may defeat the rule and leave the property clearly undisposed of, to be distributed as such. Craig v. Beatty, 11 S. C. 375. Where the estate is to be converted into money for the payment of particular legacies, the heir is not an interested party to contest their validity, as they would go to the residuary legatee and not to him if declared void. Crerar v. Williams, 145 Ill. 625. If, however, the residuary bequest is not a general one, but is itself void as to some of the shares bequeathed, other void legacies will go with such share to be distributed among the next of kin, as in case of intestacy. Kerr v. Dougherty, 79 N. Y. 327.
Lapsed and void devises. At common law a distinction prevailed between devises of land and legacies of personal property, and the former went in case of invalidity or lapse to the heir, and not to the residuary devisee. Yard v. Murray, 86 Pa. St. 113; Greene v. Dennis, 6 Conn. 304, overruling Crane v. Crane, 2 Root 487 ; Brewster v. McCall, 15 Conn. 297; Remington v. American Bible Society, 44 Conn. 672 ; Adams 0. Bass, 18 Ga. 130; Starkweather v. American Bible Society, 72 Ill. 50; Woods v. Woods, 1 Met. (Ky.) 515; Lingan v. Carroll, 3 Harr. & McH. 333 ; Carpenter v. Heard, 14 Pick. 449 ; Thorn v. Coles, 3 Edw. 330; James v. James, 4 Paige 115; Hawley v. James, 5 Paige 318; Van Cortlandt v. Kip, 1 Hill 590, affd. 7 Hill 346; Gill v. Brouwer, 37 N. Y. 549 ; Downing v. Marshall, 23 N. Y. 366; Van Kleeck v. Dutch Church, 20 Wend. 457, affg. 6 Paige 600 ; Tongue v. Nutwell, 13 Md. 415 ; S. C. 17 Md. 212; Lovett v, Lovett, 10 Phila. 537; Church 0. Church, 15 R. I. 138; Orrick v. Boehm, 49 Md. 72 ; Kelly v. Nichols (R. I.), 19 L. R. A. 413. So, Moss v. Helsley, 60 Tex. 426, where the residuary devisee was “not to dispose of” the lands otherwise devised. In Ferguson v. Hedges, 1 Harring. 524, a distinction, not supported by authority, was made between lapsed and void devises, the latter being held to go to the residuary devisee, the former to the heir. But in Indiana, devises are now put on the same footing as legacies and fall into the residue in case of lapse (1881 R. S. SS 2567, 2571); West v. West, 89 Ind. 529 ; Holbrook v. McCleary, 79 Ind. 167. Where the particular devisee is also the residuary devisee, and the particular devise is void, the intention that he should take was held to be sufficient to carry the devise into the residue, in Tucker o. Tucker, 5 N. Y. 408.
The question has been frequently
raised whether the statute enabling a testator to devise after-acquired lands has not done away with the distinction between legacies and devises, and whether gifts of both kinds do not now, on lapse or failure, go to the residuary legatee or devisee. This has been affirmed in Thayer v. Wellington, 9 Allen 283 ; Prescott v. Prescott, 7 Met. 145 ; Shreve v. Shreve, 2 Stock. 389, in the words of Williamson, C.: “Generally speaking, where a specific devise fails on account of its being void ab initio, the property so devised will go to the heir at law. . . As this principle, as the authorities state, follows from the fact that the devisor can only devise the land to which he is actually entitled at the time of making his Will, a question might arise how far in New Jersey it should be considered applicable to after-acquired lands, since by the statute of 1851 the distinction between real and personal estate in this particular is abolished.” So too, Smith v. Curtis, 5 Dutch. 345. So too, Van Kleeck o. Dutch Church, 20 Wend. 457 ; Patterson v. Swallow, 44 Pa. St. 487 ; Luques 0. Dresden, 77 Me. 186 ; Lovering v. Lovering, 129 Mass. 97. Strong, J., says, however, in Waring v. Waring, 17 Barb. 552: “ It has been long and very properly settled that a lapsed devise does not inure to the benefit of a residuary devisee, and the land of course descends to the heir at law. The rule is not changed or at all affected by the provision in our revised statutes that ‘every Will, which shall be made by a testator in express terms of all his real estate or in any other terms denot. ing his intention to devise all his real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death.' (2 R. S. 57, § 5.) The revisers stated that their object was to pass subsequently acquired land. Both devise of real estate and bequest of personal property
are now assimilated so far as they may include intermediate acquisitions. In this particular they effectuate the intentions of testators and are therefore reasonable. But I could never discover any substantial reason for the original establishment of the rule that a residuary bequest should include all other legacies which might fail by the death of the legatees or from inherent defects. The Will undoubtedly becomes effective at the death of the testator, and not before, but then it declares his intentions and they should prevail, if sufficiently indicated.”
Property afterward acquired or accrued. After-acquired real property now passes by will in nearly all of the United States, 1 Jarm. on Wills 602, n.; 3 Jarm, on Wills 744 n.; and will be carried by a general residuary devise, Van Cortlandt v. Kip, 1 Hill 590 ; Hardenberg v. Ray, 33 Fed. Rep. 812 ; Blaney v. Blaney, 1 Cush. 107; Succession of Burnside, 35 La. An. 708 ; although many states require that the testator's intention to pass such property appear in the will itself.
So, the residue will include interest and dividends accrued before testator's death, Board of Missions' Appeal, 91 Pa. St. 507 ; or accruing afterward. Grim's Appeal, 105 Pa. St. 375 ; Matter of Fisher, 2 Connoly 75.
A general residuary devise will operate as an execution of a power to dispose of property by will, unless there is something to show that such order was not the testator's intention. Cumston v. Bartlett, 149 Mass. 243. This is provided by the statute of Victoria (1 Vict. c. 26, § 27) as to the effect of a general devise. This section is enacted substantially in the District of Columbia (1857 Rev. Code, c. 52, S 20). So, in California, a gift of all testator's real or personal property (Civ. Code, S 1330) ; also in Kentucky (1887 G. S. C. 113, S 22), Michigan (1882 An. Stats.
$ 5642), Minnesota (1891 Stats. § 4085), North Carolina (1883 Code, S 2143), Pennsylvania (1883 Purd. Dig. 1713, $ 25), Virginia (1887 Code, $ 2526), West Virginia (1891 Code, c. 77, § 15), Wisconsin (1889 An. Stats. $ 2151). In Nebrasku, it passes all the estate which testator “could lawfully devise" (1893 C. S. c. 23, S 124). In New York, “every instrument conveying an estate
creating a charge which such (person] would have no right to convey or create unless by virtue of his power, shall be deemed a valid execution of the power, although such power be not recited or referred to” (1 R. S. 737, § 124 ; 6th ed. vol. 2, p. 1118, § 145). And a general devise of all testator's real or personal property executes a power unless a contrary intention appear (Id. $ 147).
Gift revoked or renounced. The resi. due will include a legacy that has been revoked or satisfied by the testator in his lifetime. Brands v. Hartung, 11 Stew. (N. J.) 42 ; Bigelow v. Gillett, 123 Mass. 102. But a specific devise which is afterward expressly revoked goes to the heir, and not into the residue. Van Cortlandt o. Kip, 1 Hill 590.
Legacies rejected or refused by the legatee will fall into the residue. Peckham v. Newton, 15 R. I. 321 ; Sinkler, v. Sinkler, 2 Desaus. 127, contra. So, where the widow elects to take her dower in lieu of a specific devise, Devecmon v. Shaw, 70 Md. 219; Yeaton v. Roberts, 28 N. H. 459 ; or of a legacy, Devecmon v. Shaw, ubi supra; Matter of Frost, 6 Dan. 431 ; or annuity, Blouin v. Phaneuf, 81 Me. 176 ; unless other testamentary provision is made for its payment or accumulation. Brandenburg v. Thorndike, 139 Mass. 102.
Failure of contingent gifts. The residue will also include gifts that fail on the happening of a prescribed contingency, whether the gift is a devise
of land, Barnum v. Barnum, 42 Md. 25 ; Drew v. Wakefield, 54 Me. 291 ; Estate of High, 136 Pa. St. 222; Alverson v. Randall, 13 R. I. 71 ; Hayden o. Stoughton, 5 Pick. 528 ; Clapp v. Stoughton, 10 Pick. 462 ; Floyd v. Carow, 88 N. Y. 560, affg. 9 Daly 535, land“
'not therein disposed of"; a bequest of personal property. Drew v. Wakefield, ubi supra; Barnet v. Barnet, 13 Stew. (N. J.) 380; Craig
Craig, 3 Barb. Ch. 76; Prescott v. Prescott, 7 Met. 141; Leader 0. O'Loughlin, 80 Me. 47. This is not true, however, unless there is a clear failure of the condition strictly construed, but it will go otherwise as property not disposed of. Weyman v. Ringold, 1 Bradf. 43.
Property not disposed of. In general, the residuary clause should be liberally construed to prevent intestacy. Stout v. Stout, 17 Stew. (N. J). 479. It will carry property within its general terms, although the testator did not know it belonged to him, and made no provision in his will. Ireland v. Foust, 3 Jones Eq. 498. So, it will carry a legacy which fails by the omission of the legatee's name. Patterson v. Swallow, 44 Pa. St. 487. Where the payment of a legacy is deferred by the testator, the residue will carry the intermediate income of the fund. Sandford v. Blake, 18 Stew. (N. J.) 247; Woodward v. Dunster, 12 C. E. Gr. 84 ; Kerr v. Bosler, 62 Pa. St. 183; Matter of Crossman, 113 N. Y. 502. The residue will carry the principal of a fund between the end of a life estate and the future exercise of a testamentary appointment, Sandford 0. Blake, ubi supra; or the principal of a fund of which the income is given to another for life, Power v. Cassidy, 79 N. Y. 602 ; or the increase in value of the securities in which a trust fund of fixed amount is invested (after the trust is terminated). Middleton's Appeal, 103
Pa. St. 92. So, it will include a remain- 1 Stew. (N. J.) 59; Ward v. Dodd, 14 der not disposed of after a life estate. Id. 414; Langstroth v. Golding, Id. 49; Lamb v. Forsyth, 43 N. Y. S. R. 112 ; Burnet v. Burnet, 3 Id. 595 ; Gar. Stout v. Stout, 17 Stew. (N. J.) 479 ; thwaite v. Lewis, 10 C. E. Gr. 351 ; Vreeland v. Van Ryper, 2 C. E. Gr. Hard v. Ashley, 117 N. Y. 606 ; Hart o. 134 ; Alfred v. Marks, 49 Conn. 473 ; Marks, 4 Bradf. 161; Estate of Reed, or an entire estate which is subject only 82 Pa. St. 428 ; Craighead v. Given, 10 in part to a life estate. Estate of Serg. & R. 350; Frazier v. Frazier, 2 Pierce, 56 Wis. 560. And the residu- Leigh 642; Floyd v. Barker, 1 Paige ary clause carrying the remainder to 480 ; De Peyster v. Clendining, 8 Paige the same person who has the life estate 295 ; Estate of Chapeau, 1 Tuck. 410; in part, will convert his estate into a Williams v. Neff, 52 Pa. St. 326; Hamfee, as to that part. Davis v. Callahan, let v. Johnson, 26 Ala. 557; Sohier v. 78 Me. 313. Even with the restrictive Inches, 12 Gray 385 ; Johnson 0. words, “all my property not given Johnson, 3 Ired. Eq. 426; Church away,” a remainder after a life estate Extension v. Smith, 56 Md. 362. So, has been held to pass. Jones v. Perry, where the share of one fails for invalid3 Ired. Eq. 200; but see, contra, ity, Green v. Belknap, 63 How. Pr. 390 ; Hemphill v. Moody, 64 Ala. 468. Lefevre v. Lefevre, 59 N. Y. 434 ;
The balance, after discretionary Estate of Gray, 147 Pa. St. 67 ; Booth power to expend the whole for the v. Baptist Church, 126 N. Y. 215; or maintenance of the first taker, has been uncertainty, Henry Watson Society o. held to be property not disposed of, Johnston, 58 Md. 139; or is revoked by and not residuary. Noyes v. Pritchard, the testator himself. Estate of Waln, 148 Mass. 140. On the other hand, the 156 Pa. St. 194. But see, contra, Towne unexpended principal of a trust fund v. Weston, 132 Mass. 513. So, where may belong to the cestui que trust and the entire residuary gift fails by lapse. his representatives, and as such not Fry v. Smith, 10 Abb. N. C. 224. fall into the residue on the death of the Where the share of one of two tenants original cestui que trust. Sproul's Ap- in common lapses by his death, it will peal, 105 Pa. St. 438; Nyce v. Nyce, not affect the share of the survivor. 59 Md. 111.
Taylor v. Wendel, 4 Bradf. 324. And Failure of residuary share. Where the testator may by a codicil after the the residue is given to several, they take death of one or more of the residuary as tenants in common; and where one legatees ratifying the will, give it the share lapses by death, it will go to the force of a new will, bequeathing the testator's heirs or next of kin, and not entire residue to the survivors, Jackson into the residue ; since the very nature v. Roberts, 14 Gray 546 ; or he may of the gift excludes all idea of an inten- effect the same result by paying off and tion on the part of the testator that it taking a release from all but one of the should pass to the remaining residuary residuary legatees. Gray V. Bailey, legatees or devisees. Hand v. Marcy, 42 Ind. 349.