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§ 753. The Same Subject: Purpose of Statutes.

The purpose of the statutes to prevent the lapse of a legacy or devise is not to defeat the will and intention of the testator, but to supplement and aid it. Where a different intention is manifested by the will, these statutes do not operate to defeat such intention.27 The object of making an exception in favor of descendants is to confer a benefit upon the issue of the legatee or devisee, not to enable the beneficiary to control the gift.28

§ 754. Illustrations of the Regulation in the Victorian Statute of Wills.

A curious illustration of the operation of the statutory provision that the devise or bequest shall take effect as if the death of the child "had happened immediately after the death of the testator,"29 is found in an English case in which a father devised a house to his son, and the son made a will leaving all his real estate to his father. The son died leaving issue; then the father died. Under the statute, the son was deemed to have died immediately after his father; accordingly, under the will of

the personal regard of the testator for the legatee himself, will not lapse unless the will further shows. an intention that the descendants of the legatee shall not take.-Domestic and Foreign Missionary Soc. v. Pell, 14 R. I. 456.

27 Rudolph v. Rudolph, 207 Ill. 266, 99 Am. St. Rep. 211, 69 N. E. 834; Domestic and Foreign Missionary Soc. v. Pell, 14 R. I. 456. "The purpose and effect of the statute seem clear. It preserves such a devise from lapsing by substituting in place of the deceased devisee his lineal descendants. By

force of the statute they take under the will in his place, and they take the same estate he would have taken thereunder. Their title to the devise comes to them directly from the testator through the will, and not through the estate of the deceased devisee. His estate therefore has no interest in the devise."-In re McKellar, 114 Me. 421, 96 Atl. 734.

28 Newbold v. Prechett, 2 Whart. (Pa.) 46. See, however, Johnson v. Johnson, 3 Hare 157.

29 Statute of 1 Vict., ch. 26, § 33.

his parent, the house passed to the son absolutely, and became subject to any testamentary disposition which he may have made of his real estate. Yet, inasmuch as he had devised his realty to his father, and the latter, so far as this particular piece of property was concerned, must be deemed under the statute to have died immediately before the former, although, as a matter of fact, the father was the survivor, his heirs could not take, and the devise lapsed and descended to the heir at law of the son.30

The operation of the Victorian statute is further illustrated by the following case: A testator directed that a share which he bequeathed to his daughter should, if she survived him, be subject to the trusts of her marriage settlement, and be paid to the trustees thereof. His daughter did not survive him, but left children living at the time of the testator's death. Her husband as administrator of her estate claimed her share under her father's will. But the court ruled that under the statute the daughter must be deemed to have survived her father, and that the legacy must be paid, as provided by the will in that contingency, to the trustees of her marriage settlement.31

8755. Construction of Terms Used in the Statutes: "Descendants," "Relatives," and "Lapse."

Although, loosely speaking, property may be said to "descend" when it passes to collateral kindred, the statutory exceptions in favor of "descendants" have been construed to refer exclusively to lineal descendants.32

30 Jones v. Hensler, L. R. 19 Ch. Div. 612.

31 In re Hone's Trusts, L. R. 22 Ch. Div. 663.

32 West v. West, 89 Ind. 529,

531; Baker v. Baker, 8 Gray (74 Mass.) 101. See, also, Gordon v. Pendleton, 84 N. C. 98.

It is held in South Carolina that the provision of the statute that

Accordingly, they can not be deemed to include brothers, 33 nor stepsons,34 nor nieces,85 nor sons-in-law.se

In construing the term "relatives" as used in the statutes of this character, the decisions have quite uniformly regarded it as applying to those only who are related by consanguinity to the testator, not those so connected by affinity. The words frequently used are "child or other relative." The conclusion of the courts is that the relationship intended is that which is associated with the word "child," in other words, a relative by blood.37 A wife is not a relative of her husband, nor a husband of his wife, within the meaning of such statutes. A dėvise or bequest from one to the other, the beneficiary dying before the testator, would lapse.

38

The word "lapse," whether used in a statute or a will, is construed according to the general language and

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115; Esty v. Clark, 101 Mass. 36,
3 Am. Rep. 320; Mann v. Hyde, 71
Mich. 278, 39 N. W. 78; Bramell
v. Adams, 146 Mo. 70, 89, 47 S. W.
931; Schaefer v. Bernhardt, 76
Ohio St. 443, 10 Ann. Cas. 919, 81
N. E. 640; Matter of Renton, 10
Wash. 533,
Cleaver v. Cleaver, 39 Wis. 96, 20
Am. Rep. 30.

537, 39 Pac. 145;

The terms "child or other relation of testator" includes only one connected by consanguinity, and not one connected by affinity.-In re Pfuelb's Estate, 48 Cal. 643.

38 Esty v. Clark, 101 Mass. 36, 3 Am. Rep. 320; Canfield v. Canfield, 62 N. J. Eq. 578, 50 Atl. 471; McKiernan v. Beardslee, 72 N. J. Eq. 283, 73 Atl. 815.

object of such statute or will, and is not confined to its strict technical meaning."9

§756. Beneficiary Dead When Will Is Executed, or Dying Before Testator.

A will is ambulatory in its nature and does not become effective until the testator's death. A dead man can not himself take a testamentary benefit. A legacy or devise in favor of a dead man is a nullity. This applies if the named beneficiary be dead when the will is executed.40 And since no devise or legacy can pass until the death of the testator, in the absence of a statute or some provision of the will to the contrary, a legacy or devise will lapse if the beneficiary die before the testator. The rule ap

39 Construction of word "lapse," when used in a will. See Van Pretres v. Cole, 73 Mo. 39.

In construing the word "lapse" in a statute reading, "that hereafter legacies and devises to children and grandchildren shall not lapse by the death of the legatee or devisee before the testator, provided such legatee or devisee shall have children, living at the death of the testator, who would have taken as heir by descent, or as distributee of the legatee or devisee," the word "lapse" was held not to be taken in its technical sense as indicating the falling back of the legacy into the testator's estate, but as applicable to all cases where it would have fallen back or gone to the others under the will. The court says: "The word 'merge' would have been more proper than the word 'lapse.' But

41

it is sufficiently clear that the
legislature had in view not the
death of all of the legatees, but
the death of any of them, and
intended to provide for such death
provided the decedent should have
children, etc.; and this intention,
manifested by the general lan-
guage and object of the statute,
must control the meaning of the
single word 'lapse.' Yeates v.
Gill, 9 B. Mon. (48 Ky.) 203.
40 In re Tamargo, 220 N. Y. 225,
115 N. E. 462.

One claiming that a legacy has lapsed on the ground that the legatee named in the will did not exist, must make clear and satisfactory proof of such claim.-Silcox v. Nelson, 24 Ga. 84.

41 Corbyn v. French, 4 Ves. Jun.. 418, 434; Tidwel v. Ariel, 3 Mad. 403; Gittings v. McDermott, 2 Myl. & K. 69; Doe d. Stewart v. Shef

plies, however, only when the testamentary benefit is exclusively the mere bounty or gift of the testator, and is

field, 13 East 526; In re Roberts, L. R. 30 Ch. Div. 234; In re Pinhorne, L. R. (1894) 2 Ch. 276; Robison v. Portland Female Orphan Asylum, 123 U. S. 702, 31 L. Ed. 293, 8 Sup. Ct. 327; Capron v. Capron, 6 Mackey (D. C.) 340; Woodroof v. Hundley, 147 Ala. 287, 39 So. 907; Galloway v. Darby, 105 Ark. 558, Ann. Cas. 1914D, 712, 44 L. R. A. (N. S.) 782, 151 S. W. 1014; Gibbons v. Ward, 115 Ark. 184, 171 S. W. 90; In re Goetz's Estate, 13 Cal. App. 292, 109 Pac. 492; Matter of Murphy, 157 Cal. 63, 137 Am. St. Rep. 110, 106 Pac. 230; Miller v. Metcalf, 77 Conn. 176, 58 Atl. 743; Cooch v. Clark, 8 Del. Ch. 299, 68 Atl. 247; Crawley v. Kendrick, 122 Ga. 183, 2 Ann. Cas. 643, 50 S. E. 40; Rudolph v. Rudolph, 207 Ill. 266, 99 Am. St. Rep. 211, 69 N. E. 834; Ballard v. Camplin, 161 Ind. 16, 67 N. E. 505; Collins v. Collins, 126 Ind. 559, 25 N. E. 704, 28 N. E. 190; Gilbert v. Gilbert, 127 Iowa 568, 103 N. W. 789; Dougart's Succession, 30 La. Ann. 268; Farnsworth v. Whiting, 102 Me. 296, 66 Atl. 831; In re McKellar, 114 Me. 421, 96 Atl. 734; Fisher v. Wagner, 109 Md. 243, 21 L. R. A. (N. S.) 121, 71 Atl. 999; Horton v. Earle, 162 Mass. 448, 38 N. E. 1135; Pittman v. Burr, 79 Mich. 539, 44 N. W. 951; Cady v. Cady, 67 Miss. 425, 7 So. 216; Martin v. Lachasse, 47 Mo. 591; Loveren v. Donaldson, 69 N. H.

639, 45 Atl. 715; Murphy v. McKeon, 53 N. J. Eq. 406, 32 Atl. 374; Voorhees v. Singer, 73 N. J. Eq. 532, 68 Atl. 217; Langley v. Westchester Trust Co., 180 N. Y. 326, 73 N. E. 44; Twitty v. Martin, 90 N. C. 643; Woolley v. Paxson, 46 Ohio St. 307, 24 N. E. 599; Shadden v. Hembree, 17 Ore. 14, 18 Pac. 572; Scott v. Ford, 52 Ore. 288, 97 Pac. 99; Garrett's Estate, 248 Pa. St. 199, 93 Atl. 999; Fiske v. Fiske's Heirs and Devisees, 26 R. I. 509, 59 Atl. 740; Rivers v. Rivers, 36 S. C. 302, 15 S. E. 137; Dixon v. Cooper, 88 Tenn. 177, 12 S. W. 445; Coleman v. Jackson, (Tex. Civ. App.) 126 S. W. 1178; Colburn v. Hadley, 46 Vt. 71; Kent v. Kent, 106 Va. 199, 55 S. E. 564; In re Renton, 10 Wash. 533, 39 Pac. 145.

By statute, in California, where two persons die in the same calamity and there are no circumstances showing anything to the contrary, it is presumed as follows: If both are under the age of fifteen, that the younger died first; if both are over the age of sixty, that the elder died first; if one be under fifteen and the other over sixty, that the elder died first; if one be either under fifteen or over sixty he is presumed to have died before one between the ages of fifteen and sixty; if both are between the ages of fifteen and sixty and the sexes be

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