the testator,1 and a power created by will lapses by the death of the donee before the donor.2 Where the gift is to several as tenants in common, as where an aggregate fund is to be divided nominatim and not as a class, the share or interest of anyone of the donees will lapse by his death before the testator.3 But where the gift is to several as joint tenants, the share of one so dying will survive to his cotenants, and no lapse can occur unless all the objects die in the testator's lifetime.4 If the devisees or legatees take as a class, although as tenants in common, the death of one of them before the testator will not cause a lapse of any part of the gift, but those of the described class who survive the testator will take the whole.5 Where land is devised to A,

ceding Estate.-A testator gave to A a legacy, the interest of which was to be paid to A's father during his lifetime. A, who was not one of testator's descendants, died before the testator. Held, that the legacy lapsed, and that the lapse destroyed any claim for interest on the legacy by A's father, who survived both A and the testator. Cook v. Lanning, 40 N. J. Eq. 369.

1. Sugd. Powers (6th ed.), 75 Rop. Leg. 426; Woodcock v. Renneck, 1 Phill. C. C. (Eng.) 72; Master v. Laprimandage, 2 Coll. (Eng.) 443; Easum v. Appleford, 5 Myl. & Cr. (Eng.) 56; Burges v. Mawbey, 10 Ves. (Eng.) 319, 346; Culsha v. Cheese, 7 Hare (Eng.) 45. "The legatee does not take under the power solely and exclusively, but under it and the will jointly. The will so made is to be construed and considered like all others. It is therefore ambulatory, revocable and incomplete till the death of the testator, consequently no person can take under it who does not survive him." Wms. Exrs. (7th Eng. ed.) 12, 15.

31.

2. Jones v. Southall, 32 Beav. (Eng.)

3. Man v. Man, 3 Stra. (Eng.) 905; Bagwell v. Dry, 1 P. Wms. (Eng.) 700; Baxter v. Losh, 14 Beav. (Eng.) 612; Page v. Page, 2 P. Wms. (Eng.) 489; Sykes v. Sykes, L. R., 4 Eq. (Eng.) 200; In re Wood's Will. 29 Beav. (Eng.) 236; Drakeford V. Drakeford, 33 Beav. (Eng.) 43.

See also Church v. Church, 15 R. I. 138, 140; Workman v. Workman, 2 Allen (Mass.) 472; Morse v. Mason, II Allen (Mass.) 36; Jackson v. Roberts, 14 Gray (Mass.) 546, 551; Upham v. Emerson, 119 Mass. 509; Cummings v. Bramhall, 120 Mass. 552; Chaflin v. Tilton, 141 Mass. 343: Hoppock v. Tucker, 59 N. Y. 202, 208; Van Buren 13 C. of L.-3

33

v. Dash, 30 N. Y. 393; Downing v. Marshall, 23 N. Y. 366; Floyd v. Barker, 1 Paige (N. Y.) 480; McLoskey v. Reid, Bradf. (N. Y.) 334; Craighead v. Given, 10 Serg. & R. (Pa.) 351; Allison v. Kurtz, 2 Watts (Pa.) 185; Mason v. Trustees, 12 C. E. Gr. (N. J.) 47; Hillyer v. Dunn, 2 Green Ch. (N. J.) 390; Hand v. Marcy, 1 Stew. (N. J.) 59; Collins v. Bergen, 42 N. J. Eq. 57; Frazier v. Frazier, 2 Leigh (Va.) 642; Todd v. Trott, 64 N. Car. 280; Twitty v. Martin, 90 N. Car. 643, 645; Mebane v. Womack, 2 Jones Eq. (N, Car.) 293; Nelson v. Moore. 1 Ired. Eq. (N. Car.) 31; Barnes v. Shannonhouse, 7 Ired. L. (N. Car.) 90; Perry v. Logan, 5 Rich. Eq. (S. Car.) 202; Hamlet v. Johnson, 26 Ala. 557; Gray v. Bailey, 42 Ired 349.

4. Wms. Exrs. (6th Am. ed.) 1311; 1 Jarm. Wills (5th Am. ed.) *340; 1 Rop. Leg. (2nd Am. ed.) *482; 2 Redf. Wills (3rd ed.) *168.

See Anderson v. Parsons, 4 Me. 486; Decamp v. Hall, 42 Vt. 483; Dow v. Doyle, 103 Mass. 489; Jackson v. Roberts, 14 Gray (Mass.) 546; Bolles v. Smith, 39 Conn. 217, 219; Gardner v. Printup, 2 Barb. (N. Y.) 83; Putnam v. Putnam, 4 Bradf. (N. Y.) 308; Stephens v. Milnor, 9 C. E. Gr. (N. J.) 358; Craycroft v. Craycroft, 6 H. & J. (Md) 54; Luke v. Marshall, 5 J. J. Marsh. (Ky.) 351.

But under statutes abolishing survivorship, the share of a joint tenant would seem to be as much subject to lapse as that of a tenant in common. Coley v. Ballance, 1 Wins. Eq. (N. Car.) No. 2, 89.

5. Wms. Exrs. (6th Am. ed.) 1312; Rop. Leg. 487 et seq.; 1 Jarm. (5th Am. ed.) *340. See Ramsay v. Shelmerdine, L. R., i Eq. (Eng.) 129; In re Colley's Trusts, L. R., 1 Eq. (Eng.) 496; Fitzroy

charged with a legacy to B, the charge is not affected by the lapse of the devise, but the testator's heir at law or residuary devisee (as the case may1 be) takes the land subject to the charge.2 A bequest to one in trust for another does not lapse by the death of the trustee in the testator's lifetime.3

c. WHAT WILL PREVENT LAPSE.-To prevent lapse the testator must designate the person or persons who are to take by way of survivorship or substitution in case of the death of the

donee. Thus, where the bequest is to A, and in case of his death, "to his executors or administrators," or "to his legal or personal representatives," or to "A or his personal representatives," or to "A or his heirs," 3 the gift does not fail. Mere words of limitation, as a legacy to "A and his executors, administrators and assigns," or to "A and his representatives," or a devise to "A and his heirs," will not prevent a lapse; nor will an

express declaration that the gift shall not lapse unless accompanied by a proper substitution; 1 but such an express declaration followed by a bequest to "A and his executors or administrators,' has been considered sufficient indication of intention to substitute the executors or administrators in the event of the failure of the gift to the original legatee.2 Where a bequest is to several as tenants in common, a lapse may be prevented by a limitation over of the share or shares of those dying, to the survivors.3 (Eng.) 83; Corbyn v. French, 4 Ves. (Eng.) 435; Shuttleworth v. Greaves, 4 Myl. & Cr. (Eng.) 35; Hughes v. Ellis, 20 Beav. (Eng.) 193. See Kimball v. Story, 108 Mass. 382, 384, 385; Cox v. Curwen, 118 Mass. 198, 200; Armstrong v. Moran, 1 Bradf. (N. Y.) 314; Stires v. Van Rensselaer, 2 Bradf. (N. Y.) 172; Seward v. Adams, 3 Yeates (Pa.) 34; Comfort v. Mather, 2 W. & S. (Pa.) 450; Dickinson v. Purvis, 8 S. & R. (Pa.) 71; Barnett's Appeal, 104 Pa. St. 342; Hand v. Marcy, 1 Stew. (N. J.) 59; Brent v. Washington, 18 Gratt. (Va.) 526; Maxwell v. Featherstone, 83 Ind. 339.

But if the context shows that a substitution was really intended, the mere fact that words which prima facie import a limitation have been employed, will not prevent the substitution from taking effect. Hawn v. Banks, 4 Edw. (N. Y.) 664; Ware v. Fisher, 2 Yeates (Pa.) 578, 584, 586; Abbott v. Jenkins, 10 Serg. & R. (Pa.) 296, 299; Davis v. Taul, 6 Dana (Ky.) 52.

But parol evidence is inadmissible to prove such intention. Maybank v. Brooks, 1 Bro. C. C. (Eng.) 184.

Bequest to A and His Heirs.-A legacy to "A and his heirs," or to "A and the heirs of his body," or to "A to be secured to him and the heirs of his body," in the absence of context show ing that some particular class of heirs was intended, is an absolute bequest to A. Crawford v. Trotter, 4 Madd. (Eng.) 361; Harris v. Davis, 1 Coll. (Eng.) 416; Wintermute v. Snyder, 3 N. J. Eq. 489. See also Weatherford v. Tate, 2 Strobh. Eq. (S. Car.) 27; Thomas v. Benton, 4 Dessaus. (S. Car.) 17; Childers v. Childers, 21 Ga. 377.

The rule is the same though a trustee intervene between the testator and the legatee. Smith v. Johnson, 21 Ga. 386. See Stone v. North, 41 Me. 265.

Bequest to "A for Life to Revert to His Family on His Decease."-A testator, by his will, directed that a house be purchased at a cost not exceeding one thousand dollars, to be held in trust for

the benefit of his servant D during his life, and "to revert to his family on his decease." D died in the lifetime of the testator, leaving a widow, one child and. a stepson who had lived in D's family and been supported by him since his marriage. Held, that the question whether the legacy lapsed could not be determined on a bill in equity by the trustees under the will to determine the distribution or disposition of the legacy. without making the residuary devisees parties. Held, also, after they had been made parties, that the bequest did not lapse at D's death; that, in the absence of words manifesting a different. intention, D's "family" meant his widow and child, and did not include his stepson; and that the sum of one thousand dollars should be paid to the widow and child in equal shares. Bates v. Dewson, 128 Mass. 334.

1. Sibley v. Cook, 3 Atk. (Eng.) 572; Toplis v. Baker, 2 Cox (Eng) 121. SeeBrowne v. Hope, L. R., 14 Eq. (Eng.) 343; Bridge v. Abbott, 3 Bro. C. C. (Eng.) 224; Ware v. Fisher, 2 Yeates. (Pa.) 587, 588; DUNCAN, J., in Craighead v. Given, 10 S. & R. (Pa.) 351. See Woerner, Am. Law of Adm., §§. 418, 434.

"Put the case of a testator saying, I give to A, and if A shall die before me.. yet I do not mean the legacy shall lapse;' I should not know how to prevent this legacy lapsing. But if the testator had said, 'If A shall die I mean his executors shall take it,' then I understand the effect very clearly, the executors being specially mentioned and substituted for the legatee." LORD CHIEF BARON, in Toplis v. Baker, 2 Cox C. C. (Eng.) 121.

2. Sibley v. Cook, 3 Atk. (Eng.) 572. See Ware v. Fisher, 2 Yeates (Pa.). 578, 584.

3. Wms. Exrs. (6th Am. ed.) 1313; MacKinnon v. Peach, 2 Keen (Eng.) 555; Baxter v. Losh, 14 Beav. (Eng.) 612; Smith v. Pytris, 9 Ves. (Eng.) 566;. Hardy v. Wilcox, 58 Md. 180. A devise to five, "to be equally divided be-

Care should also be taken to see that the substitution relates to the death of the donee in the lifetime of the testator, and not to a subsequent period.1

d. LAPSES PREVENTED BY STATUTE.-In England,2 and most of the States, statutes provide that where a devisee or legatee dies in the lifetime of the testator, leaving issue living at the time of the testator's death, the devise or legacy shall not lapse, but the issue so living shall be entitled thereto by a species of substitution.3 In Alabama, Arkansas, Colorado, Illinois, Indiana, Mississippi, New Jersey, New York, North Carolina, Pennsylvania and Texas, the statute only applies to cases in which the devisee or legatee is a child or other descendant of the testator. In

tween them if more than one," was held to carry the whole to the survivors by implication from the last words. Sanders v. Ashford, 28 Beav. (Eng.) 609. Where a testator bequeathes a portion of his residuary estate to a husband, his wife and their son, "in equal shares to each of the three," making no provision for the death of any such legatees, the wife's portion, she dying before testator, does not lapse, but passes to the husband and son. Mann v. Hyde (Mich.), 39 N. W. Rep. 78.

Whether the Accrued as Well as the Original Shares Pass to the SurvivorsEffect of Clauses of Accruer. See WILLS.

1. Corbyn v. French, 4 Ves. (Eng.) 418, 435; Bone v. Cook, McClel. (Eng.) 169; s. c., 13 Price (Eng.) 332.

So where a legacy is given to A for life, and after his death to B or his proper representatives in case B dies before A. If B dies in the lifetime of the testator, the legacy lapses, for the substitution refers to B's dying before the time of payment after the legacy has become vested in A. Corbyn v. French, 4 Ves. (Eng.) 418, 435; Bone v. Cook, McClel. (Eng.) 169; s. c., 13

Price 332.

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, for the substitution has reference to the time of payment and not to the death. Tidwell 2. Ariel, 3 Madd. (Eng.) 403; Smith v. Oliver, 11 Beav. (Eng.) 494; Thompson v. Whitelock, 4 De G. & J. (Eng.) 490. Where a legacy is given to the separate use of a married woman during the joint lives of her and her husband, and,

in case she should survive him, to her absolutely; but if she did not survive him, to such persons as she should by will appoint, and in default of appointment, to her next of kin, and the woman predeceased both her husband and the testator, the better opinion is that her next of kin are entitled to the legacy. Edwards v. Saloway, 2 Phill. C. C. (Eng.) 625.

Class Legacies.-In the case of a gift to a class, the testator may, by apt words, substitute the issue to take the share of a deceased parent without destroying the nature of the class gift. Aspinwall v. Duckworth, 35 Beav. (Eng.) 307; see § II, 2 d, II, 5. 2. 1 Jarm. (5th Am. ed.) *352. 3. Woerner Am. Law Adm., § 435.

4. Ala. Code 1886, § 1961; Ark. Dig. 1884, § 6502; Col. Gen. Stat. 1883, § 3489; Ill. (Starr & Curt.) St., p. 884, II; Ind. Rev. Stat. 1888, § 2571; Miss. Code 1880, § 1265; N. J. Rev. Stat. 1877, p. 1246, § 20; N. Y. Banks Bro. (8th ed.), p. 2549, § 52; N. Car. Code 1883, § 2144; Pa. Purd. Dig., p. 1711, § 14; Tex. Rev. Stat., § 4871.

As to construction, see Jones v. Jones, 37 Ala. 646; Taylor v. Čonner, 7 Ind. 115; Prather v. Prather, 58 Ind. 141; Maxwell v. Featherstone, 83 Ind. 339; Van Gieson v. Howard, 3 Hal. Ch. (N. J.) 462, 463; Barnett's Appeal, 104 Pa. Stat. 342; Newbold v. Prichett, 2 Whart. (Pa.) 46; Schieffelin v. Kessler, 5 Rawle (Pa.) 115, 119; Gordon v. Pendleton, 84 N. Car. 98.

In Colorado and Illinois the legatee or devisee must be a "child or grandchild" of testator. Col. Gen. Stat. 1883, § 3489; Ill. (Starr & Curt.) Stat., p. 884, § 11.

By the last revision of the Connecticut statutes a lapse is saved where the lega