The most common instance of lapse is where the death of the beneficiary occurs before that of the testator, the will making no provision for such a contingency; but the term "lapse" is often applied to conditional or contingent legacies or devises which fail. In this connection lapse would be applicable if the condition be precedent, forfeiture if the condition be subsequent." If the beneficiary survive the testator, the fact of his death before probate or distribution will not cause a legacy or devise in his favor to lapse." The common law distinction between a lapsed legacy and a lapsed devise has been abolished, and they are now similarly considered." § 750. The Same Subject: Distinguishing Features. Lapse is distinguished from abatements or ademption" for the reason that in either of the two latter instances it is the gift which fails because of insufficiency of assets, or its loss, destruction, or the like, while a legacy or devise lapses because of the failure of a beneficiary or contingency. If a legacy or devise be revoked by the testator, it, of course, fails because it is annulled, but it would not be said to lapse. Also, a legacy or devise may fail because void as against public policy, as in the case of the creation of a perpetuity for a use not charitable in nature.10 Such a gift is void ab initio, therein differing 3 Meeker v. Meeker, 4 Redf. (N. Y.) 29; Woolley v. Paxson, 46 Ohio St. 307, 24 N. E. 599; Shadden v. Hembree, 17 Ore. 14, 18 Pac. 572. 4 Eisner v. Koehler, 1 Demarest (N. Y.) 277. 5 Booth v. Baptist Church, 126 N. Y. 215, 28 N. E. 238. 6 Jersey v. Jersey, 146 Mich. 660, 110 N. W. 54. 7 See, post, §§ 777, 778. 9 See §§ 708 et seq. 10 Fite v. Beasley, 12 Lea (80 Tenn.) 328. from valid benefits which subsequently fail. The same may be said of a gift void for uncertainty." Then again, a beneficiary may refuse to accept a testamentary gift because of conditions attached, or where it is given in lieu of a debt or dower, there being the right of election. Such questions as void legacies and devises, conditional or contingent legacies and devises, election and equitable conversion will be separately treated. § 751. Instances of Lapsed Legacies or Devises. There are other circumstances besides the death of the beneficiary before the time of vesting which may cause a legacy or devise to lapse or fail. For example, if a bequest be made to a female for life, or so long as she remains unmarried, her marriage during the lifetime of the testator operates in the same manner as her death.12 A legacy may lapse by reason of the dissolution of an association to which it has been bequeathed.13 A legacy to a religious society, to be used in building a church, has been held to have lapsed when fourteen years after the testator's death no action had been taken toward erecting the building, and there appeared to be no purpose to do so.14 So there may be a failure of part of a bequest in favor 11 Gill v. Grand Tower Mining etc. Co., 92 Ill. 249. 12 Andrew v. Andrew, 1 Coll. C. C. 686, 690. 13 Neil's Estate, Myrick's Prob. (Cal.) 79. Where the testator left property to a corporation such as the Central School District of a named city, and it had ceased to exist before his death, the legacy lapsed.-Brooks v. Belfast, 90 Me. 318, 38 Atl. 222. Where a bequest is made to an asylum named and no such asylum exists, the legacy will fail or lapse, for a legacy to an asylum in being is not to be considered as made to an asylum to be created.-New Orleans v. Hardie, 43 La. Ann. 251, 9 So. 12. 14 Chadwick v. Chadwick, 37 N. J. Eq. 71. of a religious or charitable society, when it exceeds the proportion of the testator's estate which may be lawfully disposed of to such uses.15 Again, a legacy may lapse under statutes requiring bequests to charitable uses to be executed a certain time before the death of the testator by reason of the testator dying within the limited time.16 A bequest by the testator to a woman whom he supposed to be his wife, but who was not legally married to him and who was herself cognizant of the fact, will not take effect on account of the fraud.17 But a devise will not lapse because of invalid limitations over.18 A power created by a testamentary writing will lapse upon the death of the donee before the donor.19 §752. Statutory Regulations as to Lapse. The general rule of the common law in regard to the lapse of legacies and devises has been greatly modified by modern statutory exceptions thereto in favor of children or descendants, or relatives of the testator and their issue; and in some of these United States the rule has been entirely abolished. By the Victorian Statute of Wills, it was enacted that where any person, being a child or other issue of the testator, to whom shall be devised or bequeathed any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator leaving issue who survive the testator, "such devise or bequest shall not lapse, but shall take effect as if the death of such person had hap 15 Kearney v. St. Paul Missionary Soc., 10 Abb. N. C. (N. Y.) 274. 16 Greer v. Belknap, 63 How. Pr. (N. Y.) 390; Rhymer's Appeal, 93 Pa. St. 142, 39 Am. Rep. 17 Tilby v. Tilby, 2 Demarest (N. Y.) 514. 18 Heald v. Heald, 56 Md. 300. 19 Jones v. Southall, 32 Beav. 31. But see Culsha v. Cheese, 7 Hare 236, 245. pened immediately after the death of the testator, unless a contrary intention shall appear by the will."'20 By the same statute, devises of estates tail are saved from lapsing where the first devisee dies before the testator, leaving issue who survive the testator.21 A similar law has been enacted in most of the states of the Union, differing, however, in certain particulars.22 20 Statute of 1 Vict., ch. 26, § 33. 21 Statute of 1 Vict., ch. 26, § 32; In re Parker, 1 Sw. & Tr. 523. 22 Jones v. Jones, 37 Ala. 646; Clendening v. Clymer, 17 Ind. 155; Maxwell v. Featherston, 83 Ind. 339; Hamlin v. Osgood, 1 Redf. (N. Y.) 409; Bishop v. Bishop, 4 Hill (N. Y.) 138; Downing v. Marshall, 23 N. Y. 366, 80 Am. Dec. 290; Van Beuren v. Dash, 30 N. Y. 393; Dickinson v. Purvis, 8 Serg. & R. (Pa.) 71; Schieffelin v. Kessler, 5 Rawle (Pa.) 115; Newbold v. Prichett, 2 Whart. (Pa.) 46; Woolmer's Estate, 3 Whart. (Pa.) 477; Commonwealth v. Nase, 1 Ashm. (Pa.) 242; Minter's Appeal, 40 Pa. St. 111; Stimson's Am. Stat. Law, § 2823, referring to the statutes of most of the states. Power of appointment. — The exception in favor of a child of the testator does not apply to an appointment under a special power. Holyland v. Lewin, L. R. 26 Ch. Div. 266, disapproving Freme v. Clement, L. R. 18 Ch. Div. 499. But on the contrary it has been held that a statute including relations of the testator applies to a devise or legacy made by the exercise of a general power of testamentary appointment, where the devisee or legatee was a relation of the testator, but was not a relation of the donor of the power.-Thompson v. Pew, 214 Mass. 520, 102 N. E. 122. Where the statute provides against the lapsing of legacies by the death of the legatee or devisee before the testator, and a later statute provides that the former shall not apply when the testator shall become insane or otherwise incompetent to cancel, revoke, or alter the will, in a case where the legatee died before the testatrix, and the firm of which he was a member was indebted to the testatrix, but at the time of the latter's death her claim had been barred by the statute of limitations, and the testatrix had become insane after making her will but before the passage of the later statute, it was held that the legacy passed to those entitled to it as representatives of the legatee, free from all claim of the indebtedness.-Hemsley v. Hollingsworth, 119 Md. 431, 87 Atl. 506. In some it is limited to a devise or bequest to a child of the testator,28 or the child or grandchild, while in others it includes children, grandchildren, brothers and sisters. It has been extended not only to lineal descendants of the testator, but also to the issue of a brother or sister of a testator who leaves no lineal descendants.24 In some states the statutes include any relative of the testator,25 while in others they embrace all legatees and devisees whatsoever, and their issue accordingly.26 The statutes in all cases must be particularly consulted. 23 Under the New York statute, providing that a legacy shall not lapse if the legatee dies before the testator, but shall vest in the surviving child or descendant of the legatee, the child will take without administration upon his parent's estate, and to the exclusion of the parent's widow and creditors. Cook v. Munn, 12 Abb. N. C. (N. Y.) 344; s. c., 65 How. Pr. (N. Y.) 514. 24 Bacon's Appeal, 13 Pa. St. 518. This act does not apply to devises to brothers and sisters as a class. Guenther's Appeal, 4 Weekly Not. of Cas. (Pa.) 41. -- 2 25 Workman V. Workman, Allen (84 Mass.) 472; Morse v. Mason, 11 Allen (93 Mass.) 36; Ballard v. Ballard, 18 Pick. (35 Mass.) 41; Warner v. Beach, 4 Gray (70 Mass.) 162; Fisher v. Hill, 7 Mass. 86; Esty v. Clark, 101 Mass. 36, 3 Am. Rep. 320; Sears v. Putnam, 102 Mass. 5, 10; Guitar v. Gordon, 17 Mo. 408; Jamison v. Hay, 46 Mo. 546; Lefler v. Rowland, 62 N. C. (Phil. It seems that in Massachusetts the issue of a donee who died during the testator's life time do not take the gift intended for the parent, if they were born before the making of the will. Wilder v. Thayer, 97 Mass. 439. 26 Dazey v. Killam, 1 Duval (62 Ky.) 403; Dunlap v. Shreve, 2 Duval (63 Ky.) 335; Carson v. Carson's Exr., 1 Metc. (58 Ky.) 300; Young v. Robinson, 11 Gill & J. (Md.) 328; Billingsley v. Tongue, 9 Md. 575; Moore v. Dimond, 5 R. I. 121; Ford v. Ford, 1 Swan (31 Tenn.) 431; Morton v. Morton, 2 Swan (32 Tenn.) 318; Strong v. Ready, 9 Humph. (28 Tenn.) 168; Allen v. Huff, 1 Yerg. (9 Tenn.) 404, 408; Rhodes v. Holland, 2 Yerg. (10 Tenn.) 341; Wood v. Sampson, 25 Gratt. (Va.) 845. Under a statute substituting the issue of any legatee in the place of his deceased ancestor, a testamentary gift, shown in the will to have been prompted simply by |