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der over in real property after the death of the mother of the testatrix, upon condition that the beneficiary in the meantime remain on the land and support the mother as long as she might live, was held to have failed where the mother died before the testatrix, inasmuch as the gift was evidently intended as remuneration for what the devisee might do for the mother.84

8767. Gifts to Joint Tenants and Tenants in Common.

At common law, when an estate was bequeathed to several persons in joint tenancy, if one or more of them happened to die in the lifetime of the testator their shares would survive to the others,85 and the lapse of any portion of the estate would be thereby prevented.86 It was enacted in Kentucky that when a devise is made to several as a class, or as tenants in common, or as joint tenants, and one or more of the devisees shall die before the testator, and another or others survive the testator, the shares of such as die shall go to their descendants, and if none then to the surviving devisees, unless a different disposition is made by the testator.87 By stat

if

any,

amount for a tomb for the testatrix does not lapse because the body of the deceased could not be recovered and deposited in it. The word "tomb" is sufficiently broad to be held to be a monument in memory of the dead.-Succession of Langles, 105 La. 39, 29 So. 739. 84 Burleyson v. Whitley, 97 N. C. 295, 2 S. E. 450.

85 Webster v. Webster, 2 P. Wms. 347.

See, post, subject, Gifts to a Class, where survivors take inter

est of one dying before the testator.

86 Morley v. Bird, 3 Ves. Jun. 628; Buffar v. Bradford, 2 Atk. 220; Holbrook v. Harrington, 16 Gray (82 Mass.) 102; Hooper v: Hooper, 9 Cush. (63 Mass.) 122, 130; Dow v. Doyle, 103 Mass. 489. See, also, Humphrey v. Tayleur, Amb. 136; Young v. Davies, 2 Drew. & S. 167; Larkins v. Larkins, 3 Bos. & P. 16.

87 Ky. Gen. Stats., (1873) ch. 50, § 2. See, also, Stimson's Am. Stat. Law, § 2823D.

ute in West Virginia, if a devise be made to two or more persons jointly, and one or more of them die without issue, the lapsed portion does not go to the other joint devisee, but to the heir at law, unless the will otherwise provide.88 This is probably the rule in all those states in which joint tenancy has been deprived of the characteristic of survivorship.89 Lapsed legacies of tenants in common fall to the testator's next of kin or to the residuary legatee, if there be one.00

§ 768. Death of Beneficiary Before or After Title Vests.

A legacy given absolutely, although to be paid at a future date, vests in the legatee if he survive the testator, even though he die before the time fixed for payment. Where a legacy or devise has once vested, it will not fail because of the death of the beneficiary prior to the time of his enjoyment of possession.

88 W. Va.

ch. 24, § 12; ch. 77, § 12.

Bien. Laws, (1882)
Code W. Va., 1899,
See, also, Stimson's

Am. Stat. Law, (1886) § 2822.
89 Coley v. Ballance, 60 N. C.
634; Strong v. Ready, 9 Humph.
(28 Tenn.) 168, 170.

The term "equally and jointly" implies that the beneficiaries take as tenants in common, the word "equally" overcoming the word "jointly."-Taylor v. Stephens, 165 Ind. 200, 74 N. E. 980.

A devise to two or more beneficiaries creates a tenancy in common, unless a contrary intention is expressed in the will.-Gilmore v. Jenkins, 129 Iowa 686, 6 Ann. Cas. 1008, 106 N. W. 193.

See § 248 as to joint tenancy not being favored in the United States.

But, although a leg

90 Bagwell v. Dry, 1 P. Wms. 700; Page v. Page, 2 P. Wms. 489; Commonwealth v. Kiel, 1 Ashm. (Pa.) 242; Craighead v. Given, 10 Serg. & R. (Pa.) 351; Frazier v. Frazier, 2 Leigh (Va.) 642.

Where the children of the testator take their shares under the will as tenants in common and not as joint tenants, the death of a child before the testator will cause a legacy to such child to lapse.In re Krummenacker, 60 Misc. Rep. 55, 112 N. Y. Supp. 596.

91 Scurfield v. Howes, 3 Bro. C. C. 90; Lane v. Goudge, 9 Ves. Jun. 225; Locker v. Bradley, 5 Beav. 593; Johnson v. Washington L. & T. Co., 224 U. S. 224, 56 L. Ed. 741, 32 Sup. Ct. 421; Newberry v. Hinman, 49 Conn. 130; Ballard

atee or devisee survive the testator, if no estate has vested in him at the time of his death, the legacy or devise in his favor will lapse.92

8769. Death of Life Tenant Does Not Cause Gift of Remainder to Lapse.

The death of a person to whom a particular estate has been devised or bequeathed during the lifetime of the U. S. 224, 239, 56 L. Ed. 741, 32 Sup. Ct. 421.

V. Camplin, 161 Ind. 16, 67 N. E. 505; Myers v. Carney, 171 Ind. 379, 84 N. E. 506; Kamp's Exr. v. Hallenberg, 8 Ky. L. Rep. 529; Croan v. Maraman's Guardian, 148 Ky. 135, 146 S. W. 398; Leonora V. Scott, 10 La. Ann. 651; Cook v. Hayward, 172 Mass. 195, 51 N. E. 1075; Hibler v. Hibler, 104 Mich. 275, 62 N. W. 361; Fox v. Hicks, 81 Minn. 197, 200, 50 L. R. A. 663, 83 N. W. 538; Tillson v. Holloway, 90 Neb. 481, Ann. Cas. 1913B, 78, 134 N. W. 232; Herbert v. Post, 26 N. J. Eq. 278; In re Gardner, 140 N. Y. 122, 35 N. E. 439; In re Smith, 226 Pa. St. 304, 75 Atl. 425; Pond v. Allen, 15 R. I. 171, 2 Atl. 302; West v. Smith, 89 S. C. 540, 72 S. E. 395; Selby v. Morgan's Exrs., 6 Munf. (Va.) 156.

"A devise of lands to be sold after the termination of a life estate given by the will, the proceeds to be distributed thereafter to certain persons, is a bequest to those persons, and vests at the death of the testator."-Cropley v. Cooper, 19 Wall. (U. S.) 167, 22 L. Ed. 109; approved in Johnson V. Washington L & T. Co., 224

"Words directing land to be conveyed to or divided among remaindermen after the termination of a particular estate are always presumed, unless clearly controlled by other provisions of the will to relate to the beginning of enjoyment by the remaindermen, and not to the vesting of title in them. So a direction that personal property shall be divided at the expiration of an estate for life creates a vested interest."McArthur v. Scott, 113 U. S. 340, 28 L. Ed. 1015, 5 Sup. Ct. 652.

...

92 Hall v. Terry, 1 Atk. 502, 26 Eng. Repr. 317; Myers v. Adler, 6 Mackey (D. C.) 515; Estate of Hinckley, Myr. Prob. (Cal.) 189; Usry v. Hobbs, 58 Ga. 32; Gillett v. Gillett, 109 Ill. App. 75; affirmed in Blinn v. Gillett, 208 Ill. 473, 100 Am. St. Rep. 234, 70 N. E. 704; Minot v. Doggett, 190 Mass. 435, 77 N. E. 629; Garland v. Smiley, 51 N. J. Eq. 198, 26 Atl. 164; Clark v. Cammann, 160 N. Y. 315, 54 N. E. 709; King v. Crawford, 17 Serg. & R. (Pa.) 118; Lee v. McFarland, 19 Tex. Civ. App. 292, 46 S. W. 281.

testator, does not defeat the interests of persons in remainder who survive. Although the language of the gift of the remainder may seem to make the vesting of such interest dependent upon the life estate or other interest taking effect, yet it is deemed that the testator did not intend to make the gift in remainder contingent upon the former estate vesting, but that the language used was only for the purpose of describing what the testator supposed would be the subsequent condition of events.94 So, also, a gift to two persons, and in the event of the death of either then over to the other, does not lapse by reason of the death of one of them during the life of the testator.95 But if a particular estate fail through the death of the first tenant before the testator's decease, a contingent remainder over does not take effect, unless the event upon which it was to depend has taken place, although the remainderman survive the testator.96 When a remainder has once vested it will not lapse by reason of the death of the remainderman during the life of the first tenant;97 but will pass to the heirs of the 93 Stimson's Am. Stat. Law, De Gex & J., 114, 124; Anonymous, § 2822, citing the statutes of Cali- 2 Vent. 363; Massey v. Hudson, fornia, Dakota, Montana and Utah; 2 Mer. 130; Key v. Key, 4 De Gex, Billingsley v. Harris, 17 Ala. 214; M. & G. 73; Wright v. Wright, 21 West v. Williams, 15 Ark. 682; L. J. Ch. 775. Armstrong v. Armstrong, 14 B. Mon. (53 Ky.) 333; Martin v. Lachasse, 47 Mo. 591; Norris v. Beyea, 13 N. Y. 273; Traver v. Schell, 20 N. Y. 89; Downing v. Marshall 23 N. Y. 366, 80 Am. Dec. 290; Adams v. Gillespie, 2 Jones Eq. (N. C.) 244; Mehane v. Womack, 2 Jones Eq. (N. C.) 293.

94 Webb v. Hearing, Cro. Jac. 415; Walmsley V. Vaughan, 1

95 Martin v. Lachasse, 47 Mo. 591.

96 Humberstone v. Stanton, 1 Ves. & B. 385; Doo v. Brabant, 3 B. C. C. 393; Williams v. Jones, 1 Russ. 517.

97 Partridge v. Baylis, L. R. 17 Ch. Div. 835; Tippin v. Coleman, 59 Miss. 641; Harwood's Appeal, 103 Pa. St. 73.

remainderman, who will take by descent and not by purchase."8

§770. Testator May, by Provisions in His Will, Prevent Lapse.

The general rule of the common law that the death of a beneficiary before that of the testator will cause a testamentary gift to lapse, being founded upon the supposed intention of the testator that only those persons who might be living at the time of his death should receive gifts under his will, may be controlled by expressions manifesting a contrary intention. A testator may, by express provisions in his will or by language from which a clear implication may be drawn that such was his intention, prevent a lapse in case of the death of the legatee or devisee before him."9

§ 771. The Same Subject.

To prevent a legacy from lapsing, the testator must declare, either expressly or in terms from which his intention can be with sufficient clearness collected, what person he intends to substitute for a legatee who may die in his lifetime.1 For it will only be presumed that the testator contemplated a failure of his gift and made provision for lapse when there is a clear intimation to that effect. A legacy is not to be saved from lapse by the fact that the testator knew of the death of the legatee and intended that his children should receive the benefit in

98 King v. Scoggin, 92 N. C. 99, 53 Am. Rep. 410.

99 Farnsworth v. Whiting, 102 Me. 296, 66 Atl. 831; University of Pennsylvania's Appeal, 97 Pa. St. 187; Moss v. Helsley, 60 Tex. 426. 1 Pickering v. Stamford, 3 Ves. Jun. 493; Johnson v. Johnson, 4

Beav. 318; Underwood v. Wing,
4 De Gex, M. & G. 633; s. c., H. L.
Cas. 183; Carpenter v. Heard, 14
Pick. (31 Mass.) 449; Goddard v.
May, 109 Mass. 468.

2 Cowley v. Knapp, 42 N. J. L. 297.

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