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theretofore specifically devised will not cause a revocation thereof, but the devisee will take the property subject to the agreement." But if the purchase money is paid and the contract of sale completed before the testator's death, it is in effect a conveyance and a revocation.91

Options, however, which may be exercised at the election of the proposed vendee, but which can not be enforced against him contrary to his wish, have been held not to constitute a revocation of a prior specific devise of the lands covered by the option, and this rule has been applied although a deed to the property has been placed in escrow to be delivered upon the payment of the purchase price, payment, however, not being tendered until after the testator's death.92

§ 747. The Same Subject: Effect of Mortgage.

A mortgage placed by a testator upon lands specifically devised by him will not work a revocation of the devise, but the devisee will take the property subject to the en

90 Cal. Civ. Code, § 1301; Slaughter v. Stephens, 81 Ala. 418, 2 So. 145; In re Dwyer's Estate, 159 Cal. 664, 673, 115 Pac. 235; Hall v. Bray, 1 N. J. L. 212; McTaggart v. Thompson, 14 Pa. St. 149; Livingston v. Livingston, 3 Johns. Ch. (N. Y.) 148.

91 Powell's Distributees v. Powell's Legatees, 30 Ala. 697; In re Dwyer's Estate, 159 Cal. 664, 673, 115 Pac. 235.

92 Drant v. Vause, 1 You. & Coll. C. C. 580; Flagg v. Teneick, 29 N. J. L. 25; Van Tassell v. Burger, 119 App. Div. (N. Y.) 509, 104 N. Y. Supp. 273. See, also, Emuss

v. Smith, 2 De G. & S. 722; Langdon v. Astor, 3 Duer (N. Y.) 477, 605.

A testator specifically devised certain estates. Later he made a codicil which did not refer to this property, and on the day of the execution of the codicil he granted a lease of the specifically devised property with an option of purchase to the lessee. The lessee did not exercise his option until after the testator's death. The court held that there was no ademption of the specifically devised estates. In re Pyle, L R. (1895) 1 Ch. Div. 724.

94

cumbrance." And it has been expressly held that there is no distinction between a mortgage to a devisee and a mortgage to a stranger, although such distinction had previously been made. A mortgage executed by the testator to the devisee of lands specifically devised to him will amount to a revocation pro tanto.95 And the same is true of mortgages to strangers or conveyances in trust for creditors to secure the payment of debts.96

A mortgage is considered as personal property." Thus if a testator sells real property theretofore specifically devised, although he takes a mortgage back to secure the payment of the purchase price, such transaction amounts to a revocation of the devise and the proceeds from the mortgage will be considered as part of the personal estate of the testator.9 98

§748. The Same Subject: Realty Directed to Be Converted Into Money.

A testamentary gift of lands which by the testator's will are directed to be converted into money and the proceeds distributed is in effect a bequest of personalty.99 Under the Kentucky statute a will devising land to an executor in trust to sell and divide the proceeds among

93 Langdon v. Astor, 3 Duer (N. Y.) 477, 605.

94 McTaggart v. Thompson, 14 Pa. St. 149.

95 McTaggart v. Thompson, 14 Pa. St. 149.

96 Lambe v. Parker, 2 Vern. 495; Parsons v. Freeman, 3 Atk. 741; Herrington v. Budd, 5 Denio (N. Y.) 321; Livingston v. Livingeton, 3 Johns. Ch. (N. Y.) 148.

97 See § 256.

98 Adams v. Winne, 7 Paige Ch. II Com. on Wills-15

(N. Y.) 97. See, also, Emery v. Union Soc. of Savannah, 79 Me. 334, 9 Atl. 891; Beck v. McGillis, 9 Barb. (N. Y.) 35, 52.

Proceeds of property taken under eminent domain during life of a testator will not pass to the devisee of such lands.-Ametrano v. Downs, 170 N. Y. 388, 88 Am. St. Rep. 671, 58 L. R. A. 719, 63 N. E. 340.

99 See § 288.

named persons, operates merely as a bequest of the proceeds of the sale of the land and a disposition of such realty by the testator in his lifetime does not cause an ademption of the legacy.1

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CHAPTER XXVII.

LAPSED LEGACIES AND DEVISES.

$749. Lapsed legacies and devises defined.
$750. The same subject: Distinguishing features.
§ 751. Instances of lapsed legacies or devises.
§752. Statutory regulations as to lapse.

§753. The same subject: Purpose of statutes.

§ 754. Illustrations of the regulation in the Victorian Statute of

Wills.

§755. Construction of terms used in the statutes: "Descendants," "relatives," and "lapse."

§ 756. Beneficiary dead when will is executed, or dying before

testator.

§ 757. Conditional or contingent legacies or devises may lapse. §758. Legacy given to pay a debt owing to legatee.

§759. Legacy of a debt owing testator.

§760. Legacy charged upon real estate.

§761. The same subject: Contingent charges: "Exception" differs from "charge."

§ 762. Legacy of proceeds of real estate.

§763. Devises in trust.

§ 764. Effect of failure of residuary devise or legacy. §765. Divorce will not cause a lapse.

§ 766. Object of devise failing.

§ 767. Gifts to joint tenants and tenants in common.

§ 768. Death of beneficiary before or after title vests.

§ 769. Death of life tenant does not cause gift of remainder to

lapse.

§ 770. Testator may, by provisions in his will, prevent lapse.

§771. The same subject.

§772. Substituted legatees or devisees.

§773. The same subject: Words of inheritance.

§774. The same subject: Gift to beneficiary "and his heirs."

§ 775. The same subject: Gift to beneficiary "or his heirs."

§ 776. The same subject: Construing "and" as "or," and "or" as "and."

§ 777. To whom the benefit of lapsed legacies and devises ac

crues.

§ 778. The same subject.

§ 779. To whom the benefit of void legacies and devises accrues. § 780. The same subject.

§ 781. General rule as to lapsed or void legacies or devises.

$749. Lapsed Legacies and Devises Defined.

A lapsed legacy or devise is one which is valid when made, and in favor of one capable of taking, but which never vests because of the death of the beneficiary before that of the testator, or the non-happening of some contingency or the non-performance of some condition precedent. The result is that the legacy or devise does not go to the beneficiary named, or to his executor or administrator, should he be dead.1 The term presupposes the existence of a valid testamentary gift and a beneficiary capable of taking at the time the will is executed, therein being distinguished from a legacy or devise to one who has died before the will is made. In the latter instance the testamentary gift is void because of the nonexistence of the supposed beneficiary.2

1 Hutton v. Simpson, 2 Vern. 722; Brett v. Rigden, Plow. 340, 345; Fuller v. Fuller, Cro. Eliz. 422; Goodright V. Wright, 1 P. Wms. 397; Wynn v. Wynn, 3 B. P. C. 95; Ambrose v. Hodgson, 3 B. P. C. 416; Trippe v. Fazier, 4 Har. & J. (Md.) 446; Ballard v. Ballard, 18 Pick. (35 Mass.) 41; Gore v. Stevens, 1 Dana (31 Ky.) 201, 205, 25 Am.

Dec. 141; Birdsall v. Hewlett, 1
Paige Ch. (N. Y.) 32; Fry v.
Smith, 10 Abb. N. C. (N. Y.) 224;
Robins v. McClure, 67 How. Pr.
(N. Y.) 83; Booth v. Baptist
Church, 126 N. Y. 215, 242, 28
N. E. 238; Gordon v. Pendleton,
84 N. C. 98.

2 Meeker v. Meeker, 4 Redf. (N. Y.) 29.

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