a sufficient manifestation of an intention that he should have no part in the share of one of them which had lapsed.38

§ 778. The Same Subject.

The general rule stated above prevails in England," and in most of these United States. In Pennsylvania, however, the common-law rule was said not to be altered by the statute enabling testators to dispose of afteracquired realty; and accordingly in that state a lapsed devise of realty descended to the heir at law, and formed no part of the residuary estate, unless plainly so intended by the testator.40 This, however, has been changed by statute.41

Where the will contains no residuary clause, lapsed legacies12 and devises13 will pass to the next of kind or

38 Moss v. Helsley, 60 Tex. 426. 39 The statute of 1 Victoria, ch. 26, § 25, reads: "Unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will."

40 Massey's Appeal, 88 Pa. St. 470, characterizing as dicta expressions to the contrary in Patterson v. Swallow, 44 Pa. St. (8 Wright) 487, 490, and in Yard v. Murray, 86 Pa. (5 Norris) 113.

41 The Pennsylvania ruling referred to above was handed down on the 28th of January, 1879; on the 4th of June of the same year it was enacted that unless a contrary intention should appear in the will, any devise which should fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of being contrary to law or otherwise incapable of taking effect, should be included in the residuary devise, if any. This, however, has been held not to apply to lapsed shares of the residuary devise.-Everman v. Everman, 15 Weekly Not. of Cas. (Pa.) 417.

42 Twitty v. Martin, 90 N. C. 643. 43 Murray v. Yard, 12 Phila. (Pa.) 441.

descend to the heirs at law, as in cases of intestacy." This is the common-law rule, and has been enacted into the statutes of some of the states.45

8779. To Whom the Benefit of Void Legacies and Devises Ac

With respect to the question whether the heir or the residuary devisee is entitled to the benefit of a devise which fails, a distinction has been drawn between lapsed devises and void devises;46 and the distinction not being well founded in reason, the decisions are naturally conflicting. While on one hand it has been said that the heir should inherit in the case of a lapsed devise, and the residuary devisee should take a void devise; 47 on the

other hand there are cases in which, although the devise was void from the beginning, the heir was preferred to the residuary devisee on the ground that the testator never intended that the specific devise which was void should fall into the residuum.48

For example, it has been said that accumulations raised by a null and void part of a will are necessarily undisposed of by that part, and must come within the operation of the residuary clause." Although, of course, void accumulations directed to be made by the residuary clause itself will pass to the heir if growing out of realty, and to the next of kin if out of personalty,50 so, again, a residuary devise of "all the balance of my property after paying the above special bequests, and the five thousand dollars mentioned in the second clause of my will," has been held to embrace any part of the five thousand dollars which may have been given to create a perpetuity against public policy.51

of Stoughton, 5 Pick. (22 Mass.) 528, 537; Brigham v. Shattuck, 10 Pick. (27 Mass.) 306.

48 Greene v. Dennis, 6 Conn. 293, 16 Am. Dec. 58; Brewster v. McCall's Devisees, 15 Conn. 274, 297, 298; Lingan v Carroll, 3 Har. & McH. (Md.) 333; Van Cortlandt v. Kip, 1 Hill (N. Y.) 590; James v. James, 4 Paige Ch. (N. Y.) 115; Van Kleeck v. Ministers etc. of Reformed Dutch Church, 6 Paige Ch. (N. Y.) 600.

49 Ex parte Sergeant, 11 Phila. (Pa.) 8, 10. See, also, Crawley v. Crawley, 7 Sim. 427; O'Neill v. Lucas, 2 Keen 313.

Where the residuary devise of a will covered all lands "not therein

§780. The Same Subject.

On the other hand, it has been said that legacies having failed because of being invalid, constitute a fund not embraced nor intended to be embraced in the residuary clause of the testator's will, and therefore must pass to the next of kin, "by the rule well established by the adjudications."'52 Thus, in Virginia it was held that when a specific devise of real estate is made which is void or ineffectual on account of the incapacity of the devisee to take, the estate is not included in the residuary devise, but passes to the heirs as in case of intestacy, the reason assigned being that the testator conceives himself to have disposed of the property, and that he, therefore, does not intend the residuary devisee to take it. "The specific devise," it was said, "although inoperative for legal causes, as plainly indicates an intention to exclude the residuary devisee as though the same estate had been given to some other person, who was at the time capable of taking, but by subsequent events was rendered incapable." The heir in such case takes the estate, not on the ground of any supposed intention of the testator in his behalf, but because he is entitled to any part of it which is not effectually and legally given to some other person.58 Accordingly, we find rulings to the effect that lands and accumulations of income devised in perpetuity

406; Shanley v. Baker, 4 Ves. Jun.
732; Cambridge v. Rous, 8 Ves.
Jun. 12; King v. Woodhull, 3 Edw.
Ch. (N. Y.) 79; Reeves v. Reeves,
5 Lea (73 Tenn.) 653, 655.

52 Stephenson v. Ontario Or-
phan Asylum, 27 Hun (N. Y.) 380,
citing Iseman v. Myres, 26 Hun
(N. Y.) 651; Betts v. Betts, 4 Abb.
N. C. (N. Y.) 317; Lefevre v. Le-

fevre, 59 N. Y. 434, 443; Kerr v. Dougherty, 79 N. Y. 328.

In Maryland it has been held that a void devise goes to the heir of the testator, a void legacy to the residuary legatee.-Orrick v. Boehm, 49 Md. 72, 81. See, also, Elder v. Lantz, 49 Md. 186.

53 Stonestreet v. Doyle, 75 Va. 356, 40 Am. Rep. 731, citing Van

go to the heir at law;54 that land directed to be sold by the executor for the purpose of paying a void bequest will descend to the heir as land;55 and that where the income of personalty is bequeathed to a legatee for life, with remainder over to a charity which fails as contrary to a statute, the corpus of the estate will remain to the testator's next of kin.56 Such distinctions between lapsed and void legacies, recognized by the common law, have in most jurisdictions been eliminated by statute and are no longer followed unless the testator show a contrary intention by the provisions of his will.57

§ 781. General Rule as to Lapsed or Void Legacies or Devises.

By the Victorian Statute of Wills all distinction between void devises and lapsed devises was eliminated, and under that statute any devise which fails, no matter from what cause, passes under the residuary devise if there be one, unless a contrary intention shall appear from the will.58 Similar statutes have been passed in many of these United States. It is almost universally

Kleeck v. Ministers etc. of Reformed Dutch Church, 6 Paige Ch. (N. Y.) 600; Kennon v. McRoberts, 1 Wash. (Va.) 96, 1 Am. Dec. 428.

54 Wilson v. Odell, 58 Mich. 533, 25 N. W. 506.

55 Patton v. Patton, 39 Ohio St. 590.

As to legacies charged upon real estate, see, ante, §§ 760, 761.

As to a legacy of the proceeds of real estate, see, ante, § 762.

56 Seiber's Appeal, (Pa.) 9 Atl. 863.

In South Carolina, it was held

that whether the residuary legatees or the distributees under the statute are entitled to the benefit of a trust, which failed as being contrary to statute, must be determined by the provisions of the will. Craig v. Beatty, 11 S. C. 375.

57 See § 781 as to general rule as to lapsed or void legacies or devises.

As to common law distinction between lapsed legacies and lapsed devises being no longer recognized, see §§ 777, 778.

58 Statute of 1 Victoria, ch. 26,

§ 25.