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 v. Dutch Church, 20 Wend. 457; Patterson v. Swallow, 44 Pa. St. 487; Luques v. 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 denoting 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, § 20). So, in California, a gift of all testator's real or personal property (Civ. Code, § 1330); also in Kentucky (1887 G. S. c. 113, § 22), Michigan (1882 An. Stats. § 5642), Minnesota (1891 Stats. § 4085), North Carolina (1883 Code, § 2143), Pennsylvania (1883 Purd. Dig. 1713, § 25), Virginia (1887 Code, § 2526), West Virginia (1891 Code, c. 77, § 15), Wisconsin (1889 An. Stats. § 2151). In Nebraska, it passes all the estate which testator "could lawfully devise (1893 C. S. c. 23, § 124). In New York, "every instrument conveying an estate or 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 residue 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 v. 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. 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 v. 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"; or a bequest of personal property. Drew v. Wakefield, ubi supra; Barnet v. Barnet, 13 Stew. (N. J.) 380; Craig v. Craig, 3 Barb. Ch. 76; Prescott v. Prescott, 7 Met. 141; Leader v. 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 v. 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 remainder not disposed of after a life estate. Lamb v. Forsyth, 43 N. Y. S. R. 112; Stout v. Stout, 17 Stew. (N. J.) 479; Vreeland v. Van Ryper, 2 C. E. Gr. 134; Alfred v. Marks, 49 Conn. 473; or an entire estate which is subject only in part to a life estate. Estate of Pierce, 56 Wis. 560. And the residuary clause carrying the remainder to the same person who has the life estate in part, will convert his estate into a fee, as to that part. Davis v. Callahan, 78 Me. 313. Even with the restrictive words, "all my property not given away," a remainder after a life estate has been held to pass. Jones v. Perry, 3 Ired. Eq. 200; but see, contra, Hemphill v. Moody, 64 Ala. 468. The balance, after discretionary power to expend the whole for the maintenance of the first taker, has been held to be property not disposed of, and not residuary. Noyes v. Pritchard, 148 Mass. 140. On the other hand, the unexpended principal of a trust fund may belong to the cestui que trust and his representatives, and as such not fall into the residue on the death of the original cestui que trust. Sproul's Appeal, 105 Pa. St. 438; Nyce v. Nyce, 59 Md. 111. Failure of residuary share. Where the residue is given to several, they take as tenants in common; and where one share lapses by death, it will go to the testator's heirs or next of kin, and not into the residue; since the very nature of the gift excludes all idea of an intention on the part of the testator that it should pass to the remaining residuary legatees or devisees. Hand v. Marcy, 1 Stew. (N. J.) 59; Ward v. Dodd, 14 Id. 414; Langstroth v. Golding, Id. 49; Burnet v. Burnet, 3 Id. 595: Garthwaite v. Lewis, 10 C. E. Gr. 351; Hard v. Ashley, 117 N. Y. 606; Hart v. Marks, 4 Bradf. 161; Estate of Reed, 82 Pa. St. 428; Craighead v. Given, 10 Serg. & R. 350; Frazier v. Frazier, 2 Leigh 642; Floyd v. Barker, 1 Paige 480; De Peyster v. Clendining, 8 Paige 295; Estate of Chapeau, 1 Tuck. 410; Williams v. Neff, 52 Pa. St. 326; Hamlet v. Johnson, 26 Ala. 557; Sohier v. Inches, 12 Gray 385; Johnson v. Johnson, 3 Ired. Eq. 426; Church Extension v. Smith, 56 Md. 362. So, where the share of one fails for invalidity, Green v. Belknap, 63 How. Pr. 390 ; Lefevre v. Lefevre, 59 N. Y. 434; Estate of Gray, 147 Pa. St. 67; Booth v. Baptist Church, 126 N. Y. 215; or uncertainty, Henry Watson Society v. Johnston, 58 Md. 139; or is revoked by the testator himself. Estate of Waln, 156 Pa. St. 194. But see, contra, Towne v. Weston, 132 Mass. 513. So, where the entire residuary gift fails by lapse. Fry v. Smith, 10 Abb. N. C. 224. Where the share of one of two tenants in common lapses by his death, it will not affect the share of the survivor. Taylor v. Wendel, 4 Bradf. 324. And the testator may by a codicil after the death of one or more of the residuary legatees ratifying the will, give it the force of a new will, bequeathing the entire residue to the survivors, Jackson v. Roberts, 14 Gray 546; or he may effect the same result by paying off and taking a release from all but one of the residuary legatees. Gray v. Bailey, 42 Ind. 349. *SECTION II. Of the right of the executor to the residue, in case there is no residuary legatee.† If the testator neither makes any disposition of the residue, nor appoints an executor, the residue belongs clearly to the next of kin: But if the testator appointing an executor makes no disposition of the residue, a question arises whether it shall belong to such executor or to the next of kin And this is an inquiry which has given rise to much litigation and difficult discussion: But since the statute 1 Will. IV. c. 40, this subject has been freed from the great variety of distinctions which were formerly established with respect to it. : At law, it was the rule, from the earliest period, that the whole personal estate devolved on the executor: and if, after Rule at law prior payment of the funeral expenses, testamentary charges, to 1830. debts, and legacies, there should be any surplus, it should vest in him beneficially (i). Rule in equity. In equity, prima facie, the rule was the same as at law (k). But the rule was controlled in equity, in all cases where a necessary implication or strong presumption appeared, that the testator meant to give only the office of executor, and not the beneficial interest in the residue: In all such cases, the executor was considered a trustee for the next of kin of the testator; or in cases where no next of kin can be found, a trustee for the Crown (1). 1 Will. 4, c. 40. Such being the state of the jurisdiction of the courts *of equity in cutting down the right of the executor, the act of 1 Wm. IV. chap. 40, was passed, which, after reciting that "testators by their Wills frequently appoint executors, without making any express disposition of the residue of their personal estate; and whereas executors so appointed become by law entitled to the whole residue of such personal estate; and Courts of Equity have so far followed the law, as to hold such executors to be entitled to retain such residue for their own use, unless it appears to have been their testator's intention to exclude them from the beneficial interest therein, in which case See American note at end of this Section. (i) Atty. Gen. v. Hooker, 2 P. Wms. 340. Southcot v. Watson, 3 Atk. 228. Urquhart v. King, 7 Ves. 225. (k) See Lowndes on Legacies, 249, 250. (1) Middleton v. Spicer, 1 Bro. C. C. 201. Taylor v. Haygarth, 14 Sim. 8, 12. Russell v. Clowes, 2 Coll. 648. Cradock v. Owen, 2 Sm. & G. 241. The law is not altered by stat. 1 Will. 4, c. 40, s. 2: Johnstone v. Hamilton, 11 Jur. N. S. 777, coram Stuart, V.-C. [*1342] [*1343] After 1st Sept. 1830, executors to trustees for per they are held to be trustees for the person or persons (if any) who would be entitled to such estate under the Statute of Distributions, if the testator had died intestate (m); and whereas it is desirable that the law should be extended in that respect," proceeds to enact, “that 1st Sept. when any person shall die, after the first day of Septembe deemed to be ber next after the passing of this Act, having by his or her Will, or any codicil or codicils thereto, appointed any person or persons to be his or her executor or executors, such executor or executors shall be deemed by Courts of Equity to be a trustee or trustees for the person or persons (if any) who would be entitled to the estate under the Statute of Distributions, in respect of any residue not expressly disposed of, unless it shall appear by the Will or any codicil thereto, that the person or persons so appointed executor or executors, was or were intended to take such residue beneficially" (n). sons entitled to any residue under the Statute of Distributions, un less otherwise directed by will: not to affect rights of ators where there *And by the second section it is further provided and enacted "That nothing herein contained shall affect or prejudice any right to which any executor, if this Act had not is not any person been passed, would have been entitled, in cases where there is not any person who would be entitled to the testator's estate under the Statute of Distributions, in respect of any residue not expressly disposed of " (o). entitled to the residue. (m) See Stewart v. Stewart, 15 C. D. 539, 543, where Jessel, M. R., discusses the effect of the statute. (n) It has been contended that this act provides only for the case in which the property is vested in the executor by virtue of his appointment, and that it does not apply to a case where he takes it by virtue of an express gift: But in Love v. Gaze, 8 Beav. 472, a testator appointed A. & B. his executors, and he gave them all his personal estate, that is to say, for you to pay all as follows:" He then gave several legacies, and afterward said, "I wish all this to be paid in six months after my death" And it was held by Lord Langdale, under this statute, that the executors did not take the unexhausted residue beneficially, but in trust for the next of kin; as the intention that they should take beneficially did not appear : by the will. Saltmarsh v. Barrett, 29 Beav. 474. 3 De G. & F. 279. The statute was meant to cast on the executor the burthen of proving, from the testamentary instrument, a distinct intention that he should take the residue beneficially Juler v. Juler, 29 Beav. 37. Williams v. Arkle, L. R. 7 H. L. 606. For instance where it has been held that such an intention did not sufficiently appear, see Juler v. Juler, 29 Beav. 34; and where it has been held that it did sufficiently appear, see Harrison ». Harrison, 2 Hemm. & M. 237. Shepherd v. Nottidge, 2 Johns. & H. 766. (0) The statute, it should seem, has made no alteration in the law except in cases where the deceased has left next of kin Taylor v. Haygarth, 14 Sim. 8. Russell v. Clowes, 2 Coll. 648. Re Bacon's Will, 31 C. D. 460, 463. See |