the survivor; but if the devise be to them as tenants in common, the lapsed portion goes to the testator's heirs at law.

The testator may, however, direct the devolution of lapsed and void legacies and devises and if his wishes are not contrary to law, they will be followed (Hoope's Est., 185 Pa. St. 172).

11. A legacy or devise is vested when the gift is immediate and absolute, even though the time of payment or enjoyment may be postponed.* They are contingent when the gift is suspended to take effect only upon the happening of some future or contingent or uncertain event. The law favors that construction which will make the legacy or devise a vested one.‡ And a contingent legacy or devise will be held to vest at the earliest possible moment, that is, the instant that the contingency happens.§

12. It is a rule derived from the Common Law that the personal estate is the primary fund for the payment of legacies, unless it appears to be the intention of the testator as expressed by the will that a different rule should be followed. Under this rule real estate devised

*Lovass v. Olson, 92 Wis. 616; Benton v. Benton, 66 N. H. 169; Collier v. Grimsey, 36 O. S. 22; Wardwell v. Hale, 161 Mass. 396.

Lapham v. Martin, 33 O. S. 99; Wilhelm v. Calder, 102 La. 842.

Hills v. Barnard, 152 Mass. 67, 9 L. R. A. 211.

Stephen's Est., 164 Pa. St. 209; Goldtree v. Thompson, 79 Cal. 613; Smith v. Jackman, 113 Mich. 192.

¶McQueen v. Lilly, 13 Mo. 9; Gieger v. Worth, 17 O. S.

can not be sold for the payment of legacies, unless they are expressly or impliedly charged upon such land, and if the personalty is insufficient the legacies abate in the order as stated in the previous section.*

Legacies may be charged upon the real estate either by express words or by implication, if such an intention may be gleaned from the whole will. So a mandatory charge or direction to support a named person, when added to a devise, will make such support a charge upon the realty. And where a general residuary clause passes both real and personal property, it is construed to show an intention upon the part of the testator to charge unpaid legacies upon such property, including the realty, when the personal property is insufficient.§

Where testator has left sufficient property to pay all of his debts he may, by express provision, or by a plain implication exonerate certain bequests of personalty from any liability to contribute to the payment of debts.¶

Sec. 1025. WHAT DEVISES AND BEQUESTS ARE VALID.-In order to make a valid devise or bequest, the thing given the beneficiary, and

*Hogan v. Kavanaugh, 138 N. Y. 417; Wentworth v. Read, 166 Ill. 139.

Dickerman v. Eldinger, 168 Pa. St. 240; Price v. Price, 52 N. J. Eq. 326; Clark v. Marlowe, 149 Ind. 141; Townsend v. Townsend, 25 O. S. 477.

Bell v. Watkins, 104 Ga. 345; Tope v. Tope, 18 Ohio 520. § Brooks v. Brooks, 65 Ill. App. 326; Newcomb's Will, 98 Ia. 175; Miller v. Cooch, 5 Del. Ch. 161; Root's Will, 81 Wis. 263.

Fargo v. Squires, 154 N. Y. 250; Patten v. Herring, 9 Tex. Cinn. App. 640; Calder v. Curry, 17 R. I. 610.

the nature and the amount of the interest must be stated with reasonable certainty. If the thing given or the amount of the interest be uncertain, the gift will fail.* But a description defective in part will not invalidate; nor will the gift fail if the thing given can be ascertained from the description in the will aided by parol evidence of identification.†

1. Gifts to charitable uses which would be void for uncertainty, if given to individuals, are often sustained by the application of the doctrine of "cy pres." The doctrine of cy pres is a rule which grew up in the English courts of chancery by which when a gift to a charity made by a testator, becomes impossible to administer as directed in the will, the court applies the charitable gift "cy pres," that is, "as near as" possible to the original intention of the testator, and a master in chancery is appointed to construct a plan to carry out such gifts.‡ But this doctrine is not applied as fully in the American States as in England, owing to the different systems of government, the chancery powers of our courts being restrained by the division of governmental powers into three distinct branches or departments.§

*Heidenheimer v. Bauman, 84 Tex. 174; 31 Am. S. Rep. 29; McGovern v. McGovern, 75 Minn. 314.

†Gilmer v. Stone, 120 U. S. 586; Priest v. Lackey, 140 Ind. 399; Lowman v. Shinn, 162 Ill. 124; Schlottman v. Hoffman, 73 Miss. 188.

Atty. General v. Briggs, 164 Mass. 561; 108 N. Y. 312; 2 Am. St. Rep. 420.

§Page on Wills, Sec. 655; McHugh v. McCole, 97 Miss. 166, 40 L. R. A. 724; McIntyre v. Zanesville, 15 O. S. 352.

2. Gifts for purposes which are unlawful, immoral, or opposed to public policy will not be valid.* Thus conditions in a gift which are in entire restraint of marriage are usually held void.†

3. A gift may be void, because it violates the rule against perpetuities. The subject of perpetuities is regulated by statute in many States which modify more or less the Common Law rule governing the subject. At Common Law it became settled that any interest or estate in land limited upon a condition precedent which would prevent the vesting of the fee for a longer period than a life or lives in being at the time of the creation of the estate, and twenty-one years and nine months thereafter, was a perpetuity and void. That is, unless the condition precedent was to be fulfilled within this period, it violated the rule against perpetuities.‡ The rule does not apply to vested estates, but does apply to any interest in land other than a vested interest, as con

*Maddox v. Maddox, 11 Gratt. (Va.) 804; Conrad v. Long, 33 Mich. 78.

†In re Denfield, 156 Mass. 265; and see clause 8, in Sec. 1022.

Gray on Perpetuities, Sec. 201; Leonard v. Haworth, 171 Mass. 496; Madison v. Larmon, 170 Ill. 65; Johnson's Est., 185 Pa. St. 179; in this case it is said that a perpetuity is a grant whereby the vesting of an estate or interest is unlawfully postponed; "and they are called perpetuities not because the grant as written would make them perpetual, but because they transgress the limits which the law has set in restraint of grants that tend to a perpetual suspense of the title or its vesting." Philadelphia v. Girard's Heirs, 45 Pa. St. 9; Phillips v. Herron, 55 O. S. 478,

tingent remainders, and executory devises, whether such interests are legal or equitable.*

The State statutes in some cases change the Common Law rule by providing that the estate can only be limited to the life of a person in being at the time of making the will or his immediate issue or descendants.† Other State statutes provide that the absolute power of alienation of a fee shall not be suspended for a longer period than two lives in being, and the period of minority, or twenty-one years, and the period of gestation.‡

When the Common Law or statutory rule against perpetuities is violated, the devise is void and the property passes under the residuary clause if there is one, and if not it passes as intestate property. And this is so in cases where such a devise might or might not vest within the time limited by the statute.§ Thus a devise for a fixed period of time, as "twenty-five years" or "seventy-five years," without regard to lives in being, is void though such time might be less than a life in being and twenty-one years. While devises to vest at the death of a person then living, or to the children of

*Terrell v. Reeves, 103 Ala. 264; Carney v. Baptist Church, 126 N. Y. 215.

†Johnson v. Webber, 65 Conn. 504; Phillips v. Herron, 55 O. S. 478; Turley v. Turley, 11 O. S. 173.

371.

Estate of Cavalry, 119 Cal. 192; Tower's Est., 49 Minn.

§ State v. Holmes, 115 Mich. 456; Walkerly's Est., 108 Cal. 627; Lawrence v. Smith, 163 Ill. 149.

¶Johnston's Est., 185 Pa. St. 179; Walkerly's Est., 108 Cal.