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independent of any contract or obligation impelling the testator to make the disposition.42

Where a will empowers a sole executor to divide the residue of the estate among educational, benevolent or charitable institutions, and constitutes such executor the sole judge as to what institutions shall be benefited and as to the amounts they shall receive, should he die before the testator, such legacy will lapse.43

different, the female is presumed to have died first.-Cal. Civ. Code, 1963, sub. 40.

Where a testator gave his wife a legacy of $15,000, and the residue of his estate was left to trustees for the benefit of his wife during her life, thereafter to designated beneficiaries, and the husband and wife died at the same time on account of the wreck of a vessel, it was held that the legacy of $15,000 to the wife passed under the residuary clause. It was held immaterial where the testator so expected it to pass, the will not disclosing a distinct intention that it should not so pass.-In re Batchelder, Petitioner, 147 Mass. 465, 18 N. E. 225.

Where the will provided a residuary bequest, as follows: "The remainder of my estate shall be an inheritance for those who shall have paid for me and my daughters' maintenance," and as a matter of fact no one was competent to take and no such beneficiary existed because no one had paid for such maintenance, the bequest

failed. Lehnhoff v. Theine, 184 Mo. 346, 83 S. W. 469.

Where real estate is devised to the eldest male issue of a named couple surviving at the death of the testator, and at such time there is no such issue, the devise will lapse. Smith v. Smith, 141 N. Y. 29, 35 N. E. 1075.

Simultaneous deaths. Three sisters left wills by which each devised all her real and personal estate to her two sisters or to the survivor, and to their heirs and assigns. The three all perished in the same calamity-the burning of their home. Under the facts the question of survivorship was held to be regarded as unascertainable, and the rights of succession to their estates were determined as if death had occurred to all at the same moment.-In re Willbor, Petitioner, 20 R. I. 126, 78 Am. St. Rep. 842, 51 L. R. A. 863, 37 Atl. 634.

42 Ballard v. Camplin, 161 Ind. 16, 67 N. E. 505.

43 Hall v. Harvey, 77 N. H. 82, 88 Atl. 97.

§ 757. Conditional or Contingent Legacies or Devises May

Lapse.

Where a legacy or devise is to become effective only upon the happening of some contingency or the performance of some condition, the failure of the contingency or the non-performance of the condition will cause the same to lapse. Thus a testamentary gift to a person on condition that he be in the employment of the testator at the time of his death, will lapse by the beneficiary named voluntarily leaving the service of the testator.44 So where a certain sum is to be paid to a legatee upon his reaching the age of twenty-one years provided the testator be not living, the legacy can never become payable if the testator be still alive when the legatee reached the age mentioned.45

A legacy to a church on condition that the church shall remove from one location to another or rebuild on the site then occupied, will lapse if the conditions be not performed.46 If the testator makes no provision for a further disposition of a conditional legacy or devise which lapses, the property goes into his estate and is distributed under the rules of succession.47

Where a legacy or devise is made contingent upon an event which does not nor never can happen, such legacy or devise will lapse.48 For example, a legacy will lapse

44 Johnson v. Folsom, 145 Ga. 479, 89 S. E. 521.

45 Pope v. Pope, 209 Mass. 432, 95 N. E. 864.

46 Chadwick V. Chadwick, 37 N. J. Eq. 71, 73.

47 Conant v. Stone, 176 Mich. 654, 143 N. W. 39.

48 Parsons v. Lanoe, 1 Ves. Sen. 189; Sinclair v. Hone, 6 Ves. Jun.

607; McGreevy v. McGrath, 152 Mass. 24, 25 N. E. 29; Allen v. Parham, 5 Munf. (Va.) 457.

Where the only disposition of property is contained in a clause wherein the testatrix devised all of her property to her husband for life, and further provided: "If my husband survive me, I desire at his death that all that I may

which is contingent upon the wife of the testator exercising her power to dispose of the same by will, and she fails to do so. Where by the provisions of the will a bequest is made of certain personal property according to a memorandum bearing even date, to which the will refers, and the memorandum is never made, the legacy will fail; and if there is a residuary clause to the will, the property so bequeathed will pass with the residue.50

§758. Legacy Given to Pay a Debt Owing to Legatee.

A legacy given by the will of a debtor to his creditor to pay the debt, will not lapse should the legatee die before the testator;51 and this rule has been held to apply even where the debt was barred by the Statute of Limitations at the time the testator made his will.52 A legacy declared to be "for value received," will be presumed to have been given to discharge an obligation and, in the absence of evidence to the contrary, will preclude a lapse even though the legatee die before the testator.53

own or be possessed of shall go to my well-beloved stepdaughter, H. E. G.," and the husband died before the testatrix, the property was distributed as if the testatrix had died intestate.-Gibson v. Seymour, 102 Ind. 485, 52 Am. Rep. 688, 2 N. E. 305.

49 Giddings v. Gillingham, 108 Me. 512, 81 Atl. 951.

50 Cramer v. Cramer, 35 Misc. Rep. (N. Y.) 17, 71 N. Y. Supp. 60. 51 Turner v. Martin, 7 De Gex, M. & G. 429; In re Sowerby's Trust, 2 Kay & J. 630; Phillips v. Phillips, 3 Hare 281; Williamson v. Naylor, 3 You. & C. 208; Ballard

V.

Camplin, 161 Ind. 16, 67 N. E. 505; Ward v. Bush, 59 N. J. Eq. II Com. on Wills-16

144, 45 Atl. 534; Cole v. Niles, 3 Hun 326; affirmed in 62 N. Y. 636; McNeal v. Pierce, 73 Ohio St. 7, 112 Am. St. Rep. 695, 4 Ann. Cas. 71, 1 L. R. A. (N. S.) 1117, 75 N. E. 938.

As to legacy by debtor to creditor in satisfaction of the debt, see $$ 728, 729.

As to legacy to debtor by creditor, see §§ 726, 727.

52 Phillips v. Phillips, 3 Hare 281; Turner v. Martin, 7 De G., M. & G. 429; Ballard v. Camplin, 161 Ind. 16, 67 N. E. 505; Ward v. Bush, 59 N. J. Eq. 144, 45 Atl. 534.

53 Ward v. Bush, 59 N. J. Eq. 144, 45 Atl. 534.

All legacies, however, by debtors in favor of their creditors, are not given for the purpose of liquidating debts.54 Nor will the rule first above stated apply where the will directs that the testator's debts be paid.55 Accordingly, the mere recital that the testatrix had lived with the legatee for a number of years does not show that the legacy was intended in satisfaction of a claim, nor save it from lapse where there is a direction to the executors to pay all debts.56 Where by the terms of the will it appears that the intention of the testator was to confer a bounty, it is not competent to show a different intention and to prevent a lapse by extrinsic evidence tending to show that the legacy was given in payment of a debt.5

§ 759. Legacy of a Debt Owing Testator.

Where the legacy is of a debt, it is equally liable to lapse with gifts in any other form.58 Thus, where the words of the will were, "I remit and forgive," accompanied by direction that the bond be delivered up, the debtor failed to derive any benefit therefrom by reason of dying before the testator.59 On the other hand, Lord Hardwicke has said that the forgiving of a debt, coupled with a general direction to the executor to deliver up the security, without saying to whom it must be delivered would operate as a release, although the legatee died in the testator's lifetime; yet it was admitted that in regard

54 See §§ 728, 729.

55 Russell v. Minton, 42 N. J. Eq. 123, 126, 7 Atl. 342; Bolles v. Bacon, 3 Demarest (N. Y.) 43, 47; Fort v. Gooding, 9 Barb. (N. Y.) 371.

56 Bolles v. Bacon, 3 Demarest (N. Y.) 43, 47; Fort v. Gooding, 9 Barb. (N. Y.) 371.

57 Bolles v. Bacon, 3 Demarest (N. Y.) 43.

58 Elliott v. Davenport, 1 P. Wms. 83; s. c., 2 Vern. 521; Toplis v. Baker, 2 Cox 118; Maitland V. Adair, 3 Ves. Jun. 231. See, also, Wyckoff v. Perrine's Exrs., 37 N. J. Eq. 118.

59 Izon v. Butler, 2 Price 34.

to the administration of assets, such a gift must be treated as other legacies.60

§760. Legacy Charged Upon Real Estate.

The early rule was that a legacy charged upon real estate, but not to be paid until some date subsequent to the death of the testator, such as the arrival of the legatee at a certain age, did not vest upon the death of the testator and lapsed if the legatee died before the arrival of the time of payment.61 The rule as to legacies to be paid out of personal property is directly to the contrary. This early rule regarding legacies charged upon real estate was for the benefit of the heir, who was particularly favored by the English courts,2 but it has subsequently been very much narrowed.63

60 Sibthorp v. Moxton, 1 Ves. Sen. 49; S. C., 3 Atk. 580.

Other cases which hold that a legacy of a debt does not lapse by the death of the debtor before the testator: South v. Williams, 12 Sim. 566; Davis v. Elmes, 1 Beav. 131; Williamson V. Naylor, 3 Younge & C. 208; In re Sowerby's Trust, 3 Kay & J. 630; Turner v. Martin, 7 De Gex, M. & G. 429. Compare: Coppin v. Coppin, 2 P. Wms. 291, 295; Golds v. Greenfield, 2 Smale & G. 476.

As to legacy by debtor to creditor in satisfaction of the debt, see §§ 728, 729.

As to legacy to debtor by cred、 itor, see §§ 726, 727.

61 Arnold v. Chapman, 1 Ves. Sen. 108; Gravenor v. Hallum, Ambl. 643; Bland v. Wilkins, cited 1 Bro. C. C. 61; Henchman v.

Attorney-General, 2 Sim. & St. 498; Kennell v. Abbott, 4 Ves. Jun. 802, 811.

Contra: Jackson V. Hurlock, Ambl. 487.

As to real property directed by will to be sold and proceeds given, being considered as a bequest of personalty, see § 288, n. 65.

62 Prowse v. Abingdon, 1 Atk. 482.

63 "I am not aware that it has ever been extended to a case where the estate was given to a stranger, upon express condition that he pay the legacy charged thereon. The rule has long since been much narrowed down, even as between the legatees and the heirs at law."- - Chancellor Walworth in Birdsall v. Hewlett, 1 Paige Ch. (N. Y.) 32.

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