however, is not controlling; it is only a rule of construction to aid interpretation, and is subject to the cardinal rule requiring that the will be construed according to the intention of the testator. If the language of the will is such as to show that the testator did not intend to dispose of all of his property, such intention must prevail.74 Any property which does not pass under the residuary clause and is not otherwise disposed of, stands as if the testator had died intestate as to it and it will be distributed to those entitled thereto under the rules of succession. Such result will not be avoided by a provision of the will excluding the heirs from participation in the estate.75 § 681. The Same Subject: Lapsed and Void Legacies. The general rule is that where a residuary devise or bequest is not limited by any expressions of the testator restricting its scope, or where the title to pass is not limited in extent by special provisions expressed in the will, the residuary devisees and legatees take not only that not otherwise disposed of, but dispositions which have failed because of lapse, invalidity, or other accident, will become a part of the residue and be distributed as such.76 In order to prevent lapsed or void legacies from passing 129; In re Hoffman's Will, 67 Misc. Rep. 334, 124 N. Y. Supp. 680. See §§ 232, 233. 74 In re Blake's Estate, 157 Cal. 448, 108 Pac. 287; Walters v. Neafus, 136 Ky. 756, 125 S. W. 167; Jones v. Gane, 205 Mass. 37, 91 N. E. 129; Woodruff v. White, 78 N. J. Eq. 410, 79 Atl. 304; In re Thompson's Estate, 229 Pa. St. 542, 79 Atl. 173. 75 Walters v. Neafus, 136 Ky. 756, 125 S. W. 167; Durham's Admr. v. Clay, 142 Ky. 96, 134 S. W. 153; In re Trumble's Will, 137 App. Div. 483, 122 N. Y. Supp. 763. 76 Estate of Upham, 127 Cal. 90, 59 Pac. 315; Matter of Bouk's Estate, 80 Misc. Rep. (N. Y.) 196, 141 N. Y. Supp. 922; Riker v. Cornwell, 113 N. Y. 115, 20 N. E. 602; Morton v. Woodbury, 153 N. Y. under the residuary clause, the rule requires the use of words clearly limiting the gift of the residue and showing by the terms expressed an intention to exclude therefrom such portions of the estate as may fail to pass under previous clauses of the will.77 But in order to entitle the legatee to a lapsed or void legacy, he must be the general residuary legatee, not partially only." 243, 47 N. E. 283; Fite v. Beasley, 12 Lea (Tenn.) 328; Harrington v. Pier, 105 Wis. 485, 76 Am. St. Rep. 924, 50 L. R. A. 307, 82 N. W. 345. "A residuary bequest of personal estate carries not only everything not disposed of, but everything that in the event turns out not to be disposed of; not in consequence of any direct and expressed intention; for it may be argued in all cases that particular legacies are separated from the residue, and that the testator does not mean that the residuary legatee should take what is given from him; no, for he does not contemplate the case; the residuary legatee is to take only what is left, but that does not prevent the right of the residuary legatee. A presumption arises for the residuary legatee against every one except the particular legatee. The testator is supposed to give it away from the residuary legatee only for the sake of the particular legatee."-Cambridge v. Rous, 8 Ves. Jun. 12, 25. "The result is that everything which is ill-given falls into the residue."-Reynolds v. Kortright, 18 Beav. 417, 427. II Com. on Wills-10 78 A bequest of the residue, after payment of debts and legacies, is broad enough to allow the residuary legatee to take a lapsed legacy.-King v. Woodhull, 3 Edw. Ch. (N. Y.) 79. Where the will contained a general residuary clause disposing of "all the rest, residue, and remainder of" the testator's estate, "both real and personal," fourfifths thereof being given to named beneficiaries and one-fifth in trust for the benefit of his wife during her life, two lapsed legacies must be counted as part of the residue, and one-fifth added thereto for the benefit of the widow. Matter of Benson, 96 N. Y. 499, 48 Am. Rep. 646. A lapsed legacy is more readily included in a residuary clause than one that is void as being against public policy.-Allison v. Allison, 56 N. C. 236.. 77 Clarke v. Andover, 207 Mass. 91, 92 N. E. 1013; King v. Woodhull, 3 Edw. Ch. (N. Y.) 79; In re Hoffman's Will, 140 App. Div. 121, 124 N. Y. Supp. 1089; Fite v. Beasley, 12 Lea (Tenn.) 328. 78 Hulin v. Squires, 63 Hun (N. Y.) 352, 18 N. Y. Supp. 309; 8682. The Words "Cumulative" and "Substitutional" as Applied to Legacies. A testator may make two bequests to one person, either by a single testament, or by will and a codicil. If the beneficiary takes under both bequests, the legacies are cumulative; if he takes under the latter only, such legacy is substitutional, being substituted in place of the former. The two gifts may be of the same specific property; they may be of quantity only, but equal in amount; they may be of quantity but of unequal amounts; they may be given simpliciter, or they may be qualified or the motive for the gifts may be expressed; and they may be contained in one or in two testamentary instruments." 79 The term "substitutional" is sometimes further applied to the case where two separate gifts, first by will and later by codicil, are made of the same specific property to two different persons, this being a substitution of the legatee rather than of the legacy. The term has also been applied to the case where the language of the bequest is in the alternative, as to "A or his children," the children being added for the express purpose of preventing the legacy from lapsing.80 § 683. Intention Controls as to Whether or Not Legacies Are Cumulative or Substitutional. Whether legacies are cumulative, the second being in addition to the first, or whether they are substitutional, the latter being substituted for or taking the place of the prior, is a matter of construction to determine the affirmed in 141 N. Y. 560, 36 N. E. 343. 79 Hooley v. Hatton, cited in 1 Bro. C. C. 390. 80 Gittings v. McDermott, 2 Myl. & K. 69; Robb v. Belt, 12 B. Mon. (51 Ky.) 643; Kimball v. Story, 108 Mass. 382; Finlason v. Tatlock, L. R. 9 Eq. 258. The intent may be clearly intention of the testator. expressed, as where the testator, in making the second bequest, states that it is "in full" or "in lieu" of,82 or to take the place of, a prior legacy, or that the latter legacy is a sufficient provision for the beneficiary.84 Or the language employed may show an intention to make the legacies cumulative, as by using such a word as "further," or "additional."'85 If the provisions of the 81 Ridges v. Morrison, 1 Bro. C. C. 389; Lobley v. Stocks, 19 Beav. 392; Rexford v. Bacon, 195 III. 70, 81, 62 N. E. 936; Orrick v. Boehm, 49 Md. 72; Sondheim v. Fechenbach, 137 Mich. 384, 100 N. W. 586. 82 Creveling's Exrs. v. Jones, 21 N. J. L. 573; Graves v. Mitchell, 90 Wis. 306, 63 N. W. 271. If by his will a testator has given two legacies to one person, and by codicil gives a legacy in lieu of one of the former only, the other not mentioned will stand. Hard v. Ashley, 117 N. Y. 606, 23 N. E. 177. 83 In re Armstrong, L. R. 31 Ir. 154. 84 Robley v. Robley, 2 Beav. 95. $5 Burkinshaw V. Hodge, 22 W. R. 484; Mason's Exrs. v. Trustees of Methodist Episcopal Church, 27 N. J. Eq. 47. Where a testamentary instrument states with reference to certain legacies that they are "in addition" to former legacies given by will, it is an argument in favor of holding other legacies not so referred to, as substitutional, but it is not conclusive.-Mackenzie v. Mackenzie, 2 Russ. 262, 272; Barclay v. Wainwright, 3 Ves. Jun. 462. In a Pennsylvania case, the testator provided: "I also give and bequeath to her, the said Alice, fifteen shares of second preferred Cumberland Valley Railroad stock, and one second mortgage five-hundred-dollar bond (No. 1) of said railroad company." Afterward in a codicil he directed: "I further give to my cousin, Alice Rheem, in addition to what I have given her by my will, fifteen shares of Cumberland Valley Railroad stock, preferred, one Cumberland Valley Railroad eight-per-cent bond, and thirty shares of Carlisle Deposit Bank stock." The court held that Alice should take thirty shares of the railroad stock. It appeared in evidence that the codicil was written by counsel at the testator's dictation, and that at the time of writing it, the will was not read nor examined. It also appeared that the testator owned but fifteen shares of the stock of said railroad. But the court, while admitting the force of the doubts arising from this evidence, de instruments show that an accumulation of legacies was intended, such must be the holding. Evidence of parol declarations of the testator, not part of the res gestæ, are inadmissible to show whether legacies are cumulative or substitutional.87 § 684. Bequeathing a Specific Article Twice. Meyrick, 1 Bro. C. C. 30; Westcott v. Cady, 5 Johns. Ch. (N. Y.) 334, 9 Am. Dec. 306. Where specific legacies of a designated piece of property are made, in one instrument, to two different persons, no qualification or condition being attached to either bequest, the beneficiaries may take jointly or in common; but if such legacies are contained in two separate testamentary instruments, the latter is a revocation of the former, the legatee in the last testament being substituted for the other.88 Where the same corpus is twice bequeathed simpliciter to the same person, since it clared them "not substantial enough to revise a plainly written will."-Sponsler's Appeal, 107 Pa. St. 95. The opinion cites no cases. Counsel for appellant argued that inasmuch as the legatee Alice was the chief object of the testator's bounty, and that as he had bequeathed her other property and chattels, it was probable that he had forgotten the details of what he had given her, and that in giving the bank stock he repeated the bequest of the railroad stock without intending to double the legacy, citing: Heming v. Clutterbuck, 1 Bligh N. S. 479; Moggridge v. Thackwell, 1 Ves. Jun. 464, 472; Allen v. Callow, 3 Ves. Jun. 289; Lee v. Pain, 4 Hare 201; Fraser v. Byng, 1 Russ. & M. 90; Garth v. 86 Crowder v. Clowes, 2 Ves. Jun. 449; Yockney v. Hansard, 3 Hare 620; Blakeslee v. Pardee, 76 Conn. 263, 56 Atl. 503; Orrick v. Boehm, 49 Md. 72; Coane v. Harned, 51 N. J. Eq. 554, 26 Atl. 810; Barnes v. Hanks' Admr., 55 Vt. 317. 87 Guy v. Sharp, 1 Myl. & K. 589; Wilson v. O'Leary, L. R. 7 Ch. App. 448. 88 Barlow v. Coffin, 24 How. Pr. (N. Y.) 54. As to revocation of one will by a later inconsistent will, see § 526. As to wills, partially inconsistent, being construed together, see §§ 527, 528. |