The general rule now prevailing is that if the payment of a legacy charged upon land is by the terms of the will postponed until the arrival of the legatee at a certain age, or to some other fixed time in the future, the legacy lapses if the legatee dies prior to time of payment provided the postponement of the payment was made on account of the circumstances of and for the supposed good of the legatee. If, however, the postponement was made on account of the circumstances of the estate or for the benefit or aggrandizement of the estate, the legacy does not lapse but vests in and passes to the personal representatives of the legatee in case of his death before payment. In all cases, however, the intention of the testator must control, and is the ultimate test. 64 § 761. The Same Subject: Contingent Charges: "Exception" Differs From "Charge." When real estate is charged with a legacy upon a contingency which fails, the charge sinks into the devise for the benefit of the devisee. The same rule applies in case of void accumulations out of rents or income of land or a fund previously devised or bequeathed." 64 Richardson v. Greese, 3 Atk. 65; Attorney-General v. Milner, 3 Atk. 112; Chandos v. Talbot, 2 P. Wms. 601; Myers v. Adler, 6 Mackey (D. C.) 515, 1 L. R. A. 432; Devine v. Steffen, 189 Ill. App. 196; Warner's Admr. v. Bronson, 81 Vt. 121, 69 Atl. 655. 65 Croft v. Slee, 4 Ves. Jun. 60; In re Cooper's Trusts, 23 L. J. Ch. 25; Tregonwell v. Sydenham, 3 Dow. 194, 210; Fulton v. Fulton, 24 Grant Ch. (U. C.) 422; Mackret's Exrs. v. Macknet, 24 N. J. Eq. 277; Hillis v. Hillis, 16 Hun 66 Combe v. Hughes, 11 Jur. N. S. 194; In re Clulow's Trust, 1 Johns. & H. 639. See, however, Burt v. Sturt, 10 Hare 415; Mathews v. Keble, L. R. 4 Eq. Cas. 467. But see McDonald v. Bryce, 2 Keen 276, which holds that prohibited accumulations directed to If the gift is to be considered as intended only as a "charge" upon the estate first devised, the devisee himself will be entitled to the benefit of the lapse.67 This is the rule also under the Louisiana Code, which provides that the legatee shall receive the benefit of the lapse of a charge which he would have been bound to perform.68 If, however, the gift to a particular person, or for a particular purpose, may be considered to have been intended by the testator as an "exception" from the first devise, the devisee will not profit by the lapse thereof."9 Where the payment of a legacy is charged upon real estate, and such realty is devised to another who dies prior to the testator, the death of the devisee, although causing the devise to lapse, will not cause the legacy to fail.70 be made out of realty or personalty, which constitutes a part of the residue, will pass to the heir or next of kin, as the case may be. 67 Jackson v. Hurlock, Amb. 487; Barrington v. Hereford, cited 1 Bro. C. C. 61; Kennell v. Abbott, 4 Ves. Jun. 802, 811; Baker v. Hall, 12 Ves. Jun. 497; Cooke v. Stationers' Co., 3 Myl. & K. 262; Ridgway v. Woodhouse, 7 Beav. 437; In re Cooper's Trusts, 23 L. J. Ch. 25; 8. C., 4 De Gex, M. & G. 757; Carter v. Haswell, 3 Jur. N. S. 788; Tucker v. Kayess, 4 Kay & J. 339. 68 La. Rev. Code, (1875) § 1704. 69 Arnold v. Chapman, 1 Ves. Sen. 108; Gravenor v. Hallum, Amb. 643; Cooke v. Stationers' Co., 3 Myl. & K. 262; Arnold v. Chapman, 1 Ves. Sen. 108; Collins v. Wakeman, 2 Ves. Jun. 683; Hanchman v. Attorney-General, 2 Sim. & St. 498; Page v. Leapingwell, 18 Ves. Jun. 463; Gibbs v. Rumsey, 2 Ves. & B. 294; Jones v. Mitchell, 1 Sim. & St. 290; Cruse v. Barley, 3 P. Wms. 20; In re Smith, 11 N. Y. Supp. 783. As to the distinction between "charges" and "exceptions," see Baker v. Hall, 12 Ves. Jun. 497; Cooke v. Stationers' Co., 3 Myl. & K. 262; In re Cooper's Trusts, 23 L. J. Ch. 25; Heptinstall v. Gott, 2 J. & H. 449. 70 Hills v. Wirley, 2 Atk. 605; Oke v. Heath, 1 Ves. Sen. 135; Cady v. Cady, 67 Miss. 425, 7 So. 216; Gilroy v. Richards, 26 Tex. Civ. App. 355, 63 S. W. 664. 8762. Legacy of Proceeds of Real Estate. Where a legacy was payable out of the proceeds of real estate, the early cases were slightly conflicting, but the general rule was that such a legacy, being void or having lapsed, inured to the benefit of the heir rather than the residuary legatee, the money being considered as land." But by the statute of I Victoria, ch. 26, sec. 25, all lapsed or void legacies or devises of any interest in real property pass under the residuary clause. And it is now generally held that where realty is directed by the will to be sold and the proceeds paid to a beneficiary, it is in effect a gift of personalty.72 The benefit so given, if there be a lapse, will pass under the residuary clause.7 Under the modern doctrine the common law distinction between devises and legacies with regard to lapse, no longer prevails.” § 763. Devises in Trust. Where there is a devise in trust to apply the income to a designated beneficiary during his life and on his death to pay the principal over to another, if the beneficiary first named die before the testator, the gift does not lapse but the trust becomes a naked one in favor of the other.75 Where a will contains numerous powers which 71 Cruse v. Barley, 3 P. Wms. 20; Collins v. Wakeman, 2 Ves. Jun. 683; Gibbs v. Rumsey, 2 Ves. & B. 294; Hutcheson v. Hammond, 3 Bro. C. C. 128, 148; Amphlett v. Parke, 4 Russ. 75; Johnson v. Holifield, 82 Ala. 123, 2 So. 753. Contra: Page v. Leapingwell, 18 Ves. Jun. 463; Noel v. Lord Henley, 1 Dan. 322. 72 See § 288, n. 65. 73 Crerar v. Williams, 145 Ill. 625, 21 L. R. A. 454, 34 N. E. 467; English v. Cooper, 183 III. 203, 55 N. E. 687; Milwaukee Protestant Home v. Becher, 87 Wis. 409, 58 N. W. 774. 74 See § 777, 778. 75 Frelinghuysen v. New York Life Ins. & Tr. Co., 31 R. I. 150, Ann. Cas. 1912B, 237, 77 Atl. 98. are attached to the trust provided for therein and are not personal to the trustee named in the will, and the trustee dies before the testator, a new trustee appointed by the court has the same powers, rights and duties as if he had been originally appointed.78 The lapse of the legal title devised to a trustee does not, of course, affect the equitable or beneficial devise; for the testator's heir or the residuary devisee, as the case may be, will take the legal title, subject to the trust. And it has even been held that after the lapse of the beneficial interest, the legal title will still devolve under the will to the trustee." §764. Effect of Failure of Residuary Devise or Legacy. A residuary legacy or devise may be void or may lapse the same as any testamentary gift. In such a case the legacy or devise passes to the next of kin or the heir as if to such property the testator had died intestate.78 The same rule applies where the gift fails only as to one of several residuary legatees or devisees, the benefit inuring to the next of kin or heir of the testator, and not to the remaining residuary beneficiaries." 76 Stanwood v. Stanwood, 179 Mass. 223, 60 N. E. 584. 77 Doe d. Shelley v. Edlin, 4 Ad. & E. 582. 78 Bill v. Payne, 62 Conn. 140, 25 Atl. 354; Brooks v. Belfast, 90 Me. 318, 38 Atl. 222; Prettyman v. Baker, 91 Md. 539, 46 Atl. 1020; Horton v. Earle, 162 Mass. 448, 38 N. E. 1135; Lyman v. Coolidge, 176 Mass. 7, 56 N. E. 831; Huston V. Read, 32 N. J. Eq. 591; Bolles v. Bacon, 3 Demarest (N. Y.) 43; Ward v. Ward, 105 N. Y. 68, 11 N. E. 373; Hard v. Ashley, 117 N. Y. 606, 23 N. E. 177; In re Gorgas' Estate, 166 Pa. St. 269, 31 Atl. 86; Almy v. Jones, 17 R. I. 265, 12 L. R. A. 414, 21 Atl. 616; McHugh v. McCole, 97 Wis. 166, 65 Am. St. Rep. 106, 40 L. R. A. 724, 72 N. W. 631. 79 Page v. Page, 2 P. Wms. 489; Humble v. Shore, 7 Hare 247; Crum v. Bliss, 47 Conn. 592; Stetson v. Eastman, 84 Me. 366, 24 Atl. 868; Lombard v. Boyden, 5 Allen (87 Mass.) 249; Hulin v. § 765. Divorce Will Not Cause a Lapse. Where a husband makes a bequest in favor of his wife the legacy does not lapse because of a subsequent divorce, even though for her fault. 80 A legacy in the words, "one-third to my wife Mary Brown Jones," did not fail although the beneficiary subsequently obtained a divorce from the testator.81 A gift by a testator to his "wife" ordinarily refers to his wife when the will was made, but a gift to his "widow" means the wife who survives him.82 § 766. Object of Devise Failing. Where a legacy or devise is given for a particular purpose, and the purpose is impossible of consummation, the gift must fail. Thus, a legacy to pay the funeral expenses of the beneficiary will lapse if such beneficiary die during the lifetime of the testator.83 A devise of a remainSquires, 63 Hun (N. Y.) 352, 18 N. Y. Supp. 309; Matter of Whiting, 33 Misc. Rep. (N. Y.) 274, 68 N. Y. Supp. 733; Matter of Benson, 96 N. Y. 499, 502, 48 Am. Rep. 646; Booth v. Baptist Church, 126 N. Y. 215, 28 N. E. 238; In re Gray's Estate, 147 Pa. St. 67, 23 Atl. 205; In re Gorgas' Estate, 166 Pa. St. 269, 31 Atl. 86; Church v. Church, 15 R. I. 138, 23 Atl. 302. Compare: Gray v. Bailey, 42 Ind. 349. 80 Card v. Alexander, 48 Conn. 492, 40 Am. Rep. 187; Charlton v. Miller, 27 Ohio St. 298, 22 Am. Rep. 307; Wintercast v. Smith, 4 Rawle (Pa.) 177. Where before marriage the man made his will, as follows: "I give and bequeath to my intended wife, E. J., the sum of $1000, to be paid to her within one year after my decease," and directed the residue of his property to be equally divided among his children, and soon after the marriage the wife deserted her husband, who procured a divorce therefor, it was held that she was entitled to the legacy according to the terms of the will.-Charlton v. Miller, 27 Ohio St. 298, 22 Am. Rep. 307. 81 Jones' Estate, 211 Pa. St. 364, 107 Am. St. Rep. 581, 3 Ann. Cas. 221, 69 L. R. A. 940, 60 Atl. 915. 82 Meeker v. Draffen, 201 N. Y. 205, Ann. Cas. 1912A, 930, 33 L. R. A. (N. S.) 816, 94 N. E. 626. 83 Hall v. Smith, 61 N. H. 144. The provision in a will that the executor should expend a certain |