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his stead, unless it was so provided in the will or a codicil thereto. If a legatee be dead at the time the will is made, and no words substituting his issue be used, the legacy will lapse, whether the testator knew of the death or not.4

Where the common-law rule is in force, it must appear from the face of the will that the intention of the testator was that the legacy or devise should not lapse by reason of the death of the beneficiary before the demise of the testator, in order to avoid the effect of the rule. Such intention must de declared in unequivocal terms, by designating whom the testator wishes to take the gift in case of the death of the beneficiary."

§ 772. Substituted Legatees or Devisees.

A will may contain a direct provision that a certain legacy or devise shall not lapse, or by a distinct provision may substitute another in the place of a beneficiary should the latter die before the testator. Where it is explicitly provided by the will that in the event of the death of a legatee or devisee, his children, issue, or heirs, or any named object, shall take in his stead, the legacy or devise will not lapse because of the death of the first named beneficiary during the life of the testator.®

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Thus, a gift over after the death of the testator's widow to several children, and a substitution of the issue instead of "any of my said children dying before my said wife," will save the legacy from lapse, and entitle to a share in the remainder the children of a son who died in his father's lifetime. So, also, where a will by which all the testator's estate, real and personal, was given to his wife, declared that at her decease, it "shall go to and be equally divided among my children, the issue of a deceased child standing in the place of the parent," the children took vested interests which were not liable to lapse.

§773. The Same Subject: Words of Inheritance.

In the absence of express words to prevent a lapse, or some provision of the will which indicates a contrary intention, the common-law rule, unless changed by statute, will prevail, and the legacy or devise to a beneficiary who dies before the testator will lapse. A will is ambulatory and does not become effective until the death of the maker, and until such time no testamentary gift can vest in the beneficiary. A testator may provide in his will that any legacy or devise which may lapse shall go to the heirs or next of kin of the beneficiary, but the

7 Outcalt v. Outcalt, 42 N. J. Eq. 500, 8 Atl. 532. See, also, Fussey v. White, 113 Ill. 637; Harris v. Carpenter, 109 Ind. 540, 10 N. E.

rent and income during her life." It was thought that the insertion of the words "have or leave," with respect to the daughter's children, and that the addition of the latter 422; Cunningham v. Dungan, 83 portion of the clause quoted, when Ind. 572; Boykin v. Boykin, 21

taken in connection with the principal sentence, disclosed the testator's purpose to let in the issue of children dying before their mother, testator's child.

S. C. 513.

8 Gibbens v. Gibbens, 140 Mass. 102, 54 Am. Rep. 453, 3 N. E. 1.

9 In re Wells, 113 N. Y. 396, 10 Am. St. Rep. 457, 21 N. E. 137.

provision must be in such form as to clearly indicate that the heirs or next of kin take as purchasers directly under the will,10

Words of inheritance are now unnecessary to convey a title in fee, whether by deed or by will; they are mere surplusage. But the fact of the use of such unnecessary words is not a sufficient reason for deducing therefrom an intention on the part of the testator to substitute in his place the heirs of a legatee or devisee who may predecease the testator." Although such words may now be dispensed with, their insertion in a will does not give them a legal effect different from what it formerly was.12

§ 774. The Same Subject: Gift to Beneficiary "and His Heirs." It is well settled that the use of mere words of limitation will not prevent a legacy or devise from lapsing. Terms frequently used in testamentary gifts, such as adding after the name of the beneficiary the words "and his heirs" or "and his heirs or assigns," are words of limitation, merely descriptive of the nature of the estate

10 In re Barnett's Appeal, 104 Pa. St. 342; Cureton v. Massey, 13 Rich. Eq. (S. C.) 104, 94 Am. Dec. 151.

11 In re Wells, 113 N. Y. 396, 10 Am. St. Rep. 457, 21 N. E. 137; Sword's Lessee v. Adams, 3 Yeates (Pa.) 34; Sloan v. Hanse, 2 Rawle (Pa.) 28.

In Hand v. Marcy, 28 N. J. Eq. 59, Chancellor Runyon, in a wellconsidered opinion, held that the addition of the words "heirs and assigns" to a gift of the residue did not prevent a lapse, where a residuary legatee died in the life

time of the testator, and that, as to so much of the estate disposed of by the residuary clause, the testator had died intestate.

12 Van Beuren v. Dash, 30 N. Y. 393.

In Thurber v. Chambers, 66 N. Y. 42, 47, it was said of the presence of similar words in a will, that "although the use of them was unnecessary to vest a fee, it is quite common and the usual way in deeds and conveyances to insert them for greater certainty."

given, and do not create a substituted legacy or devise.13 Thus, a legacy or devise to a named beneficiary "and his heirs," will lapse upon the death of the devisee during the life of the testator; for the words "and his heirs" are words of limitation only, and serve only to show that the testator intended to bestow a fee-simple estate.1 The same is true of a gift to a person, "and his executors and administrators and assigns. "'15 This rule is equally applicable to realty and personalty.1

16

A declaration that a legacy shall not lapse, following a bequest to a person and his executors or administrators, will be considered to indicate an intention to substi

13 Jackson v. Alsop, 67 Conn. 249, 34 Atl. 1106; Devine v. Steffen, 189 Ill. App. 196; Maxwell v. Featherston, 83 Ind. 339; Farnsworth v. Whiting, 102 Me. 296, 66 Atl. 831; Horton v. Earle, 162 Mass. 448, 32 N. E. 1135; Loveren

V.

Donaldson, 69 N. H. 639, 45 Atl. 715; McKiernan v. Beardslee, 72 N. J. Eq. 283, 73 Atl. 815; In re Wells, 113 N. Y. 396, 10 Am. St. Rep. 457, 21 N. E. 137; Barnett's Appeal, 104 Pa. St. 342.

"The general rule prevailing in equity as at law, that if a legatee dies after the making of the will and before the death of the testator the legacy lapses, is not affected by the insertion after the name of the legatee, of the words 'his heirs, executors, administrators and assigns,' unless a declaration that the legacy shall not lapse is superadded: for those words, according to their uniform and well established interpretation only express the intention of

II Com. on Wills-17

the testator to pass the absolute property in the estate real or personal to the legatee."-Kimball v. Story, 108 Mass. 382, 384.

"Before the revised statutes the doctrine of lapse applied indiscriminately to gifts with or without words of limitation to heirs or heirs of the body, and it also applied equally to bequests of personalty, even where words of limitation to his executors or administrators had followed the bequest to a person deceased before the will took effect."-Matter of Vosseler, 89 Misc. Rep. (N. Y.) 674, 152 N. Y. Supp. 208.

14 Hand v. Marcy, 28 N. J. Eq. 59; Sword's Lessee v. Adams, 3 Yeates (Pa.) 34.

15 Stone v. Evans, 2 Atk. 86; Maybank v. Brooks, 1 Bro. C. C. 84. See, also, Brumfield v. Drook, 101 Ind. 190; Long v. Long, 62 Md. 33.

16 Colburn v. Hadley, 46 Vt. 71.

tute them in the event of the legatee himself dying before the testator.17 But where a gift to a legatee, his executors, administrators and assigns, is followed by a declaration that the legacy is to vest in him immediately upon the execution of the will, lapse will not be thereby avoided.18

§ 775. The Same Subject: Gift to Beneficiary "or His Heirs.”

In some cases where a legacy or devise is to a named beneficiary followed by such words as "or his heirs," the disjunctive "or" being used instead of the conjunctive "and," it has been held that a substitution of beneficiaries was implied so as to prevent a lapse upon the death of the beneficiary first named.19 It is a refined interpretation and has been resorted to only when necessary to meet the ends of justice.20 The weight of author

17 Sibley v. Cooke, 3 Atk. 572. 18 Browne v. Hope, L. R. 14 Eq. 343.

19 Girdlestone v. Doe, 2 Sim. 225; Speakman v. Speakman, 8 Hare 180; Crooke v. De Vandes, 9 Ves. Jun. 197; Newman v. Nightingale, 1 Cox C. C. 341; In re Porter's Trust, 4 Kay & J. 188; Salisbury v. Petty, 3 Hare 86; In re Newton's Trust, L. R. 4 Eq. 171; In re Porter's Trust, 4 Kay & J. 188; Fussey v. White, 113 Ill. 637; Janney v. Sprigg, 7 Gill (Md.) 197, 48 Am. Dec. 557; Kimball v. Story, 108 Mass. 382; Brokaw v. Hudson's Exrs., 27 N. J. Eq. 135; Hand v. Marcy, 28 N. J. Eq. 59; Miller v. Caragher, 35 Hun (N. Y.) 485; Wetmore v. Peck, 66 How. Pr. (N. Y.) 54; Wright v. Method

ist Church, Hoff. Ch. (N. Y.) 202.

But see, as to "or her representatives," University of Pennsylvania's Appeal, 97 Pa. St. 187.

In Gittings v. McDermott, 2 Mylne and K. 69, it is said: "The force of the disjunctive word 'or' is not easily to be got over. Had it been 'and' the words of limitation would, of course, as applied to a chattel interest, have been surplusage, but the disjunctive marks, as plainly as possible, that the testator by using it intended to provide for an alternative bequest; namely, to the legatees if they should survive, and if they should not, to their heirs."

20 Keniston v. Adams, 80 Me. 290, 14 Atl. 203.

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