Lapsed Devise

A devise which has lapsed, or does not take effect because of the death of devisee before testator.

A devise which has lapsed, or does not take effect because of the death of the devisee before that of the testator. The subject-matter of the lapsed devise will. If no contrary Intention appear, be Included in the re.slduary clause Uf any) contained in the will. In Ehigland, by stat. 1 Viet. c. 26, if the devise be to children or other issue of the devisor, and the issue of the devisee be alive, the devise will not lapse, if no such Intention appear in the will. A devise always lapses at common law if the devisee dies before the testator, and such was the general rule in this country; Prowitt V. Hodman, 37 N. Y. 54; Robinson V. Martin, 2 Yeates (Pa.) 525; but in many if not all the states, if made to a son or grandson of the testator, it takes effect, by force of statute, in favor of his heirs, if he die before the testator. In North Carolina, a devise to a child dying before the testator does not lapse, but goes to the issue of such child; Cor v. Ward, 107 N. C. 507, 12 S. E. 379; so in Massachusetts, in the case of a devise to a child or other relative,' 3 Washb. R. P, ’"523; Esty v. Clark, 101 Mass. 38, 3 Am. Rep. 320. In Maryland, the provision against lapse goes much further, and it is provided that no devise or bequest shall fail by reason of the death of the devisee or legatee before the testator, and it takes effect in like manner as if they had survived him; Craycroft V. Craycroft, 6 Har, & J. (Md.) 64. See 1 Jarm. Wills, 6th Am. ed. ’"307, n.; 4 Kent 641. In regard to a lapsed devise, where the devisee dies during the life of the testator, the heir of the devisee will not take; Gore V. Stevens, 1 Dana (Ky.) 201, 25 Am. Dec. 141; but the estate will go to the testator’s heir, notwithstanding a residuary devisee. But if the devise be void, as where the devisee is dead at the date of the will, or is made upon a condition precedent which never happens, the estate will go to the residuary devisee, if the words are sufficiently comprehensive; 15 Ves. 689; In re Woolmer’s Estate, 3 Whart. (Pa.) 477; Ferguson V. Hedges', 1 Harring. (Del.) 624; 4 Kent 641. But some of the courts hold in that case even, that the estate goes to the heir; Lessee v. Nutwell, 13 Md. 416, where it was said that there was no solid distinction between a lapsed and a void devise, and that in both cases the heir at law should take, and not the residuary devisee. When the devise is to the person deceased, with such words as “and his heirs’’ added, they are generally held to be words of limitation, and not of description. So a devise of the proceeds of land to three persons, one-third to each, and to ‘‘their heirs respectively for ever,’’ lapsed on the death of one as to his share, the word heirs designating the estate, not the takers; Estate of Worsley, 36 W. N. C. (Pa.) 247; so where a residuary devise was to two persons, “thelf heirs and assigns’’; Horton v. Earle, 162 Mass. 448, 38 N. E. 1135. The rule that devises lapse by the death of the devisee Is not changed by adding to the devise the words “to Rave and to hold the same to them, their heirs and assigns for ever’’; In re Wells, 113 N. Y. 396, 21 N. E. 137, 10 Am. St. Rep. 457. And where land was devised to a daughter for life and then to be “equally divided among the lawful heirs of’’ another daughter, it was held that the word heirs must be taken in a technical sense, and as the last mentioned daughter was alive at the death of the first, the devise to the heirs lapsed; Clark V, Mosely, 1 Rich. Eq. (S. C.) 396, 44 Am. Dec. 229. In case of gifts to a class, the rule Is that there is no lapse, but they go to the other members of the class; Theobald, Wills 643. It is, however, held that the gift is not to a class if the members of the class are named; 11.Sim. 397; 2 J. & H. 650; nor if to “five daughters of A’’ or “my nine children”; 9 Ch. D. 117; 15 Ch. D. 84; and where the residue was given to sons named, there being nothing to show that testator intended otherwise, they took as individuals and not as a class, and the share of the son who died before his father’s death lapsed, and passed as intestate real estate; Church v. Church, 15 R. I. 138, 23 Atl. 302. See Lapsed Legacy. In case of a devise to two as Joint tenants, if one die before the testator, where survivorship in a joint tenancy has been abolished, his share has been held to fall in the residue; Wins. Eq. 89. Where land was devised to a son who was also appointed executor, and he died and the testator by codicil appointed another executor, referring to the death of his son, it was held that the devise did not lapse, and should be construed as a devise to the son’s heirs; Davis’ Heirs V. Taul, 6 Dana (Ky.) 51. A devise to one for life with a remainder does not lapse by the death of the first taker before that of the remainderman; West v. Williams, 15 Ark. 682. The refusal or init to lapse, but it parses to the next; Brown V. Brown, 43 N. H. 17. If one Is appointed by will to take in case of the death of the first devisee and on that event, the appointee can take as contemplated by the will, there will be no lapse, although the devisee dies before the testator, but the ulterior gift will take effect Immediately on testator’s decease as a direct unconditional gift; Armstrong v. Armstrong, 14 B. Mon. (Ky.) 333. A devise in trust for a son, and “in the event of the son dying childless” then over, lapsed by the death of the son in the lifetime of the testatrix, and the devise over did not take effect; Mc Greevy v. Mc Grath, 162 Mass. 24, 25 N. E. 29. A devise made to a wife for life, with remainder to the daughter, and with power to the wife to sell and Invest the proceeds for the benefit of the daughter, does not lapse during the lifetime of the wife, being for the benefit of the latter as well as the former; Cotton v. Burkelman, 142 N. Y. ICO, 36 N. E. 890, 40 Am. St. Rep. 584. With a single important exception, the same principles apply to devises and legacies with respect to lapse, and as to that difference, and also for other cases on the subject, see Lapsed Legacy., LAPSED LEGACY. A legacy which, on account of the death of the legatee before the period arrives for the payment of the legacy, lapses or deviates from the course prescribed by the testator, and falls into the residuum. 1 Wms. Ex., 7th Am. ed. *1071; Craighead v. Given, 10 S. & R. (Pa.) 351. A legacy which has never vested or taken effect; one which, originally valid, afterwards fails, because the capacity or willingness of the donee to take has ceased to exist before he obtained a vested Interest in the gift. Booth v. Baptist Church of Christ, 126 N. Y. 215, 28 N. E. 238. A distinction exists between a lapsed devise and a lapsed legacy. A devise which lapses does not fall into the residue unless so provided by the will, but descends to the heir at law; on the contrary, personal property passes by the residuary clause, where it is not otherwise disposed of; 15 Ves. 709; 3 Whart. 477. See Lapsed Dto-

A devise which fails, or takes no effect, in consequence of the death of the devisee before the testator; the subject-matter of it being considered as not disposed of by the will. 1 Steph. Comm. 559, 4 Kent, Comm. 541.