death, like any other legacy, although the infant may not be then of an age fit to be placed out1. 1 Nevill v. Ne 2 Parry v. Warrington, 6 Madd. K. 500. Vickers v. Scott, 3 My. & Houghton v. Franklin, 1 S. & The principle on which the court has gone in these cases is vill, 2 Vern. 430. this, that courts of equity consider that twelve months is a period within which, with reasonable diligence, an executor may wind up the affairs of his testator. And carrying out this principle it has been held, that where a testator directs a purchase, with all convenient speed, and interest in the mean time to accumulate, and the trustees neglect to complete the purchase, twelve months is to be considered a reasonable time within which the purchase might have been made, and the tenant for life will be entitled to receive dividends on the fund from that period 2. So, conversely, where the testator directs a sale "with all convenient 155. speed after his decease," and directs the produce to be invested and the dividends to be paid to one for life, and the lands remain unsold, the court considers twelve months a reasonable time within which the estates ought to have been sold, and the produce invested, and will give to the tenant for life the rents of the unsold estate from that time3. Where an annuity is given by will with a direction that it shall be paid monthly, the first payment is to be made at the end of a month after the testator's death4. When a period of payment of a legacy is fixed, the subsequent failure or breach, even of an express condition annexed to it, will not affect the right to receive it5. Unascertained or general legacies must be paid in the currency of the country in which the will was made, at least when the property was also situated there; and to shew whether this was or was not the case, evidence dehors the will may be admitted. Whether legacies given in foreign currency will bear interest according to the rate of that country, so long as the money is there employed for the benefit of the testator's estate, appears to be doubtful7; though it seems to be settled, that where the testator has assets both in the colonies and in this country, if the legatees prefer coming against the assets in this country, they cannot claim more than the ordinary rate of interests. Where a testator gave some pecuniary legacies to infants, to be paid to them on their attaining twenty-one, and by a codicil he directed that, as far as it might be practicable, all his legacies should be paid within six months after his decease; it was held, that the direction in the codicil did not accelerate the time of payment to the infant legatees 9. 6 S. 390. Brydges v. Wotton, 1 Ves. & B. 138. Lansdowne v. Bligh, 92; Cockerel v. Barber, 16 Ves. Lansdowne, 2 465. Malcolm v. Martin, 3 Bro. C. C. 53; Raymond v. Broadbelt, 5 Ves. 199. Ricketts, 10 Ves. 334. s Bourke v. Frost v. Capel, 2 Beav. 184. 1 Tidwell v. Ariel, 3 Madd. 403. Brett v. Rig. den, Plow. 345; Fuller v. Ful ler. Cro. Eliz. 422; Wynn v. Wynn, 3 B.P.C. Toml. Ed. 95. * 1 Vict. c. 26, s. 32. 1. Doctrine of Lapse, 244. SECT. 7.-LAPSE. 3. Lapsed Legacies, 244. 4. Lapse of Gifts to a Class, 245. 1. Doctrine of Lapse.]-Where the object of a testator's bounty dies in his lifetime, the devise or bequest in his favour necessarily fails, since at the time when it is to take effect, namely, at the death of the testator, there is no person capable of receiving it. In such a case the devise or legacy is said to ' lapse.' 2. Lapsed Devises.]—If there be a devise to A. and his heirs, and A. dies in the lifetime of the testator, as the heirs can take nothing except through A., the devise absolutely lapses. As in this case, the testator designed to give A. the absolute interest, and cannot be supposed to have any special regard to the heirs of A., as objects of his bounty; no injustice probably is done in such a case by shutting out the heirs of A. The insertion of the word, "or," between the name of the devisee and the words of limitation, makes no difference in the construction; this being regarded merely as an inaccurate mode of annexing words of limitation to the gift, and not as designed to create a substitutional gift in the event of the failure of the first by lapse1. The same rule has been established where the devise is to A. and the heirs of his body 2; although in this case it may be considered that in general the testator's intention is defeated, the issue of A. being obviously, in this case, as much the objects of the testator's bounty as A. himself. This state of the law has, therefore, been very properly corrected by a provision in Lord Langdale's Act, by which it is enacted, "that where any person to whom any real "estate shall be devised for an estate tail or an estate in quasi " entail shall die in the lifetime of the testator leaving issue who "would be inheritable under such entail, and any such issue "shall be living at the time of the death of the testator, such "devise shall not lapse, but shall take effect as if the death of "such person had happened immediately after the death of the "testator, unless a contrary intention shall appear by the will3. 3. Lapsed Legacies.]-The same principles have been applied 1 Maybank v. Brooks, 1 B. C. C. 84. to bequests of personal estate, and a gift to A., his executors or administrators, is construed simply as a gift to A., although the words "executors or administrators" are not necessary for vesting the absolute interest of personal estate in A., as words of inheritance are in the case of real estate, which might have been thought a sufficient ground for a distinction between the two classes of cases. If the devisee or legatee were dead, at the time of making the will, such words of limitation would be equally inoperative to vest the gift in his personal representatives1. Even a declaration, that the gift should not lapse, will make no difference; since negative words do not constitute a gift, and the only means of excluding the title of those on whom the law casts the property, is by giving it to some one else. Such a declaration, however, accompanying a gift to A., and his executors or administrators, would be considered, however, as indicating an intention of substituting the personal representatives for the legatee, and might probably prevail2. The introduction of the word, "or," between Sibley v. the name of the legatee and the words, "his executors and ad- Cook, 3 Atk. ministrators" is construed in the same way as has already been explained in respect to devises. In a late case where a testator, resident in India, bequeathed a share of his personalty to A., "who resided at L. when I left London, or his heirs, executors, administrators, or assigns for ever;" the Vice-Chancellor held that A. having died in the testator's lifetime, the legacy failed; his Honor, being of opinion that the words were too uncertain to create a substitutional gift3. 2 572. 3 Waite v.Templer, 2 Sim.524. 4. Lapse of Gifts to a Class.]-Where a devise or gift is to a class of persons, to be ascertained at the death of the testator, and any of them die in the testator's lifetime, this will make no lapse, even though they were to take as tenants in common: as if the gift be to the children of A. equally to be divided between them; the entire gift will vest in any children or child, surviving the testator, without regard to previous deaths. The same rule Doe v. Shefof course prevails when the gift is to the children of a person then field, 13 East, deceased 5. If, however, the class is to be defined at some period & Viner v. Franduring the testator's life, and any of its members subsequently cis, 2 Cox, 190. die in the testator's lifetime, the share of the member so dying wili lapse. As if the gift be to the children of A. who shall be living at his decease as tenants in common, and A. dies in the testator's lifetime, leaving four children, one of whom afterwards dies before the testator, the share of such child will lapse in the 526. 1 Allen v. Callow, 3 Ves. 289. same manner as it would have done if the gift had been originally made to the four children by name 1. SECT. 8.-ADEMPTION. The doctrine of ademption is confined to specific legacies; and a legacy is adeemed if the specific thing do not exist at the testator's death2. What shall be considered an ademption of debt Pattison, 1 My specifically bequeathed, is a point of considerable difficulty; but • Pattison v. & K. 12. 3 Ashton v. Ashton, 3 P. W. 385; Innes v. Johnston, 4 Ves. 574. 4 Coleman v. Coleman, 2 Ves. jun. 639. it may now be considered as settled, that such a bequest is not adeemed either by a voluntary or compulsory payment, without some intention disclosed that the testator meant to deprive the legatee of the benefit he once intended him3. A bequest of specific bills of exchange, drawn and accepted by the East India Company, is not adeemed by payment in the usual mode*. So, calling in money due on mortgage, is not an ademption of the bequest of the money so due5. So, where there was a bequest of a debt, with a direction that, if any part of it should be paid, the legatee should receive so much money as was so paid, it was held that a subsequent release by the testatrix was no ademption 6. The receipt of dividends on a debt due by a bankrupt is no ademption of the bequest of that debt, this being an act of necessity 7; nor is a receipt of rent an ademption, where that M'Guire, 2 Bro. rent has been specifically bequeathed. 5 Le Grice v. Finch, 3 Mer. 50. 6 Thomond v. Suffolk, 1 P.W. 464. 7 Ashburner v. C. C. 108. Ford v. Flem ing, 2 P.W.470. Baker v. Ray ner, 5 Madd. 217. Whenever the thing, specifically given, does not exist at the testator's death, the legacy must fail, unless the fund pointed at was merely the primary fund to pay the legacy, as distinguished from a specific legacy 9. A specific bequest of stock is not adeemed either in toto or pro tanto by a sale of the whole or part of it by the testator10, nor by a change of the testator's interest from legal Askew, 1 Cox, to equitable 11, nor by a transfer of an equal or greater quantity of stock into the names of himself and the legatee 12. 10 Sibley v. Per ry, 7 Ves. 629. 11 Dingwell v. 427. 12 Wetherby v. Dixon, Coop. 281. 13 Lunn v. Bank of England, 15 Ves. 569. 14 Abney v. Mil ler, 2 Atk. 597. 15 Carte v. Carte, 3 Atk. 176. A specific bequest of stock, which the testator had at the date. of his will, cannot, if adeemed, be revived by a purchase of the same quantity of the like stock, without a codicil affirming it 13. Leaseholds specifically bequeathed are adeemed by renewal14; but an equitable interest in a term is not adeemed by the legal owner taking a renewal 15. An adeemed lease may, however, pass by a subsequent publication1. A surrender of leaseholds will be an ademption, but an agreement for a surrender will not2. A be quest of money, arising from the sale of an estate, is adeemed by the sale of the estate by the testator himself3. A specific bequest may also be adeemed by conversion, as a gold chain converted into a gold cup1; but the removal of goods, if necessary, is not an ademption of a bequest of goods in a particular place5. Crosbie v. M'Dowal, 4 Ves. 616; Monck v. B. 304. Monck, 1 B. & 16 Ves. 199. Arnold v. Arnold, Dick, 645. 4 Ashburner v. M'Guire, 2 Bro. C. C. 110. 3 Heseltine v. Heseltine, 3 6 273. Jackson v. Kelly, 2 Ves. sen. 285. 7 Brown v. Higgs, 4 Ves. 1. Residuary Bequest.]-Unless there be a clearly expressed intention to the contrary, a will operates upon all the personal estate of which the testator is possessed at the time of his decease. The consequence is, that wherever there is a general residuary bequest, there can be no intestacy as to any part of the personal estate; since it comprises whatever does not eventually pass under the specific and particular bequests of the will, as well those which are originally void, as those which lapse by the death of legatees in the lifetime of the testator7. But where the residue is given in moieties to several persons, then, if one of the residuary legatees die in the lifetime of the testator, as to his share there is an intestacy, it having been established, "that a part of the residue, of which the disposition fails, will not accrue in augmentation of the remaining parts as a residue of residue; but, instead of resuming the nature of residue, devolves as undisposed ofs."Skrymsher v. Northcote, A declaration, that a legacy shall, in the event of the legatee 1 Swanst. 570. dying in the lifetime of the testator, go to the residuary legatee, is not entirely inoperative; since, in the event of there being a deficiency of assets, it places the residuary legatee, quoad this legacy, in the situation of a particular legatee, and he would be liable to abate only pari passu with the other legatees of the same class 9. Where a testator limits his residuary personal property to one for life, with remainder over, it is primâ facie to be intended, that the testator means that the same property which is given to the tenant for life should go to those entitled in remainder; and if any part of the residue be of a wasting nature, as long annuities or 708. 9 Rose v. Rose, 17 Ves. 347. |