presentative of Maybank filed a bill for the legacy, insisting that the words "his executors, administrators, or assigns," made it transmissible; and were of the same import as if the testator had said, "and if Maybank shall be dead, I give the same to such person or persons as shall be executor, administrator, or assign;" and that the testator intended the legacy to go to Maybank's family in payment to him of the debt from the testator's father. To establish this case, the plaintiff proposed to read parol evidence of the testator's knowledge that Maybank was dead, and of his intention that the legacy should go to his representative. But Lord Thurlow rejected it, remarking that all the cases of the admission of parol evidence were short of the present; and he noticed its inefficacy, if received, in saying, "the only fact to which evidence was offered appeared to be that the death of Maybank was within the knowledge of the testator; and in order to show his intention that the legacy should be transmissible, which could not be from a legatee who had been dead several years." Hence it appears, that whether the evidence were admitted or not, it was equally useless to the plaintiff. The legacy was declared to be lapsed as falling within the rule before stated. 3. The rule, however, like all others, admits of exceptions, but which must be founded upon the manifest intention of testators, that the legacies should not lapse by the deaths of the legatees before them, and the appointment of other persons to take the legacies upon the happening of those events; for Lord Hardwicke was of opinion, that without such a nomination, intention alone would be insufficient to prevent the application of the rule. In Sibley v. Cook,(i) his Lordship thus expressed himself: "If a man devise real estate to J. S. and his heirs, and signify or indicate his intention, that if J. S. die before him the devise should not lapse, yet, unless he nominated another devisee, the testator's heir is not excluded, notwithstanding that declaration: so in the gift of a personal legacy to A., although the testator showed an intention that the legacy should not lapse if A. die before him, yet that is not sufficient to exclude the next of kin." To a similar effect were the expressions of the Lord Chief Baron of the Court of Exchequer, in the case of Toplis v. Baker.(k) His Lordship, in allusion to the last case, and that of Elliot v. Davenport, requiring the will to be specially penned to prevent a lapse, said, "If this mean, that some other person must be substituted by the will in the room of the legatee dying, then I think that is a clear proposition; but I doubt whether any thing else will do. Put the case of a testator saying, 'I give to A., and if A. shall die before me, yet I do not mean the legacy shall lapse,' I do not know how to prevent this legacy from lapsing; but if the testator had said, 'if A. shall die, I mean his executors shall take it,' then I understand the effect very clearly; the executors being specially mentioned, and substituted for the legatee." Upon such reasoning as the above, Lord Hardwicke determined the case of Sibley v. Cook, (l) in which A. bequeathed in the following words: "I give the several legacies and sums following, which I will shall be paid to the several persons hereinafter named, and if any of those persons die before the same become due and payable, I (i) 3 Atk. 573. (k) 2 Cox, 121. (1) 3 Atk. 572. will that they or any of them shall not be deemed lapsed legacies." The testatrix then particularised the several legatees, and proceeded thus to Ann the wife of R. Wensley, and to her executors or administrators, I give the sum of 50l." Ann died before the testatrix, and her husband administered to her. The question was, whether And Lord the legacy lapsed in consequence of that accident? Hardwicke determined in the negative, and said, " that the testatrix expressly provided against a lapse if Ann died before her; for she says, if any of the legatees die before their legacies become due and payable, I will that they or any of them shall not be deemed lapsed legacies. And subsequently to this the testatrix bequeaths to Ann, and to her executors and administrators, 50l.; so that in case of her death before the testatrix, other persons are named to take." The last authority may seem at the first impression to militate in principle against the before stated case of Elliot v. Davenport, but upon more mature consideration, their seeming inconsistency may be reconciled. It will appear from an attentive perusal of Sibley v. Cook, that the testatrix did not insert the terms "executors or administrators" as usual words of annexation, but descriptive of a class of persons distinct from Ann Wensley, who were to take the legacy upon her death in the lifetime of the testatrix. For the testatrix having expressly declared that none of the legacies should lapse, proceeded eodem flatu to give the legacy to Ann, her "executors or administrators;" with the intention of substituting them in Ann's place upon the happening of the event which she first described. But in the other case, as also that of Maybank v. Brooks, before stated(m) no such inference of intention could be raised from any expressions used prior or subsequently to the bequests to the legatees their "executors or administrators;" which latter words seem to have been introduced without any particular meaning, and purely as customary expressions. Consistent with the decision in Sibley v. Cook is that of Bridge v. Abbott,(n) wherein the words "legal representatives," were used instead of "executors or administrators." In that case the testatrix bequeathed the residue of her personal estate to several persons in equal shares, "but in case of the death of any of them before her, she directed that the shares of those dying should go to, be had, and received by his or her legal representatives.". One of the legatees died before the testatrix, and Lord Alvanley, M. R. after observing that nothing was more clear than that a testator might prevent a legacy from lapsing, and the necessity, according to Sibley v. Cook, not only that he should declare the legacy should not lapse, but also who should take in the place of the legatee, decreed that the present bequest did not lapse, but belonged to such persons as were the next of kin to the residuary legatee at the death of the testatrix. If a legacy be so given as to be payable at the testator's death, the period of a receipt not being expressly postponed by him, and if the form of bequest be to the legatee or his personal representatives, it is presumed that the legacy will not lapse by his death before the testator, and for these reasons: there is no period at which the representatives can take, as intended by the will, except in consequence of the legatee dying in the lifetime of the testator. The testator's (m) Ante, p. 322. (n) 3 Bro, C. C. 224. intention, therefore, in naming the representatives must have been to guard against a lapse by the death of the legatee before him. The intent is as manifest as if actually expressed; and since persons are designated to take the legacy upon the happening of that contingency, there is an union of the two circumstances, which (as we have seen) are required and are sufficient to prevent the lapsing of a legacy. In Corbyn v. French,(o) although Lord Alvanley avoided a decision upon the question, as not being necessary, it may probably be inferred from his expressions, that his opinion was in favour of the rights of the representative. The same observation applies to the language of Wright, J. in Stone v. Evans,(p) but in Tidwell v. Ariel, (q) the Court was more explicit in declaring its opinion in favour of the representative. Another exception to the general rule applicable to lapses, is where the legacy is given to a trustee for another person; for if the bequest were made to B. in trust for C., and B. died before the testator, leaving C. who survived the testator, the trustees' death would not be permitted to prejudice C., but C. would be entitled to the legacy. And the equity is the same, although the trust be not distinctly expressed, but is created by construction of law. Thus, in Eales v. England,(r) the testatrix gave to B. 300l. with a declaration of her will, that "B. should give the 300l. to his daughter C. at his death or sooner, if there were occasion for her better preferment." B. died before the testatrix, when C. survived; and the question was, whether the legacy lapsed? The Court declared, that by the effect of the above form of bequest, B. was a trustee for C. whose interest could not be affected by the death of the former during the life of the testatrix. And the bequest was compared to one made in the following terms, viz. to B. for life, then to C. in which case C.'s title could not be disputed. So also it will be if lands or personal estate be devised to B. charged with a legacy to C., for although B. died before the testator, an event by which the bequest is lapsed, so far as B. is concerned, yet the charge in favour of C. will be supported in a court of equity. An instance of this kind occurred in the case of Wigg v. Wigg,(s) in which the testator Wigg devised real estate to his second son Thomas, upon condition that he or his heirs paid to the testator's six grandchildren 901. in equal shares, to whom were given powers of entry and distress in case of non-payment. Thomas died before the testator, and consequently the devise of the land lapsed. But the question was, whether the charge of 901. nevertheless subsisted? And Lord Hardwicke decided in the affirmative, and directed the estate to be sold to raise the money for the legatees. SECT. II. Of Lapse, (where the person named in the will is debtor to the testator,) depending upon the circumstance, whether the benefit be given as a legacy, or intended in the nature of a release. 4 Ves. 435. (p) 2 Atk. 87. (9) 3 Mad. 409. Pre. Ch. 200. and see Moggridge v. Thackwell, 1 Ves. jun. 465. 475. With respect to the doctrine of lapsed bequests, a distinction prevails when the bequest is intended to operate in the nature of a release, or in extinguishment of a debt, and when as a mere legacy. In the latter case we have seen, from the authorities before produced, that in general the legatee's death, during the life of the testator, will defeat the bequest, but in the former a court of equity will carry into effect the testator's intention against all persons except creditors.(t) It follows from this distinction between a legacy and a testamentary act in the nature of a release, that in order to decide whether the will be a discharge to a debtor-legatee's estate, although he die in the testator's lifetime, it is necessary to ascertain whether the benefit was meant as a legacy, or a mere direction to the executor to deliver up the security or to cancel the obligation, or whether it amounts to a declaration by the testator of his intention that the debts should not be claimed from his debtor personally, or from his estate. For if the benefit appear to be intended as a legacy, personal to the debtor, and the direction as to the delivery of the security is merely ancillary to that legacy, the death of the debtor before the testator will occasion a lapse, and the debt will be recoverable by the testator's executors. But if, on the contrary, the testator merely treat the debt as subsisting, and do not purport to bequeath or give it to the debtor, but uses words of forgiveness or remission, it will be presumed that the testator meant in all events to cancel the obligation; an intention which will be effectuated by a court of equity, and which the death of the testator will not be permitted to disappoint.. Of the FIRST distinction, the case of Elliot v. Davenport, before stated(u) is an instance, for there the debt of 400l. was expressly bequeathed to the debtor, charged with a legacy of 150l. and the testator did not intend the security to be delivered up under the general direction, until the 150l. were paid. Such delivery therefore, and remission of the debt was not distinct from, but ancillary to, the bequest of it before made.. The case of Toplis v. Baker(x) next followed, in which the testator gave to one Draper 400l. that the latter owed him upon a mortgage. He then ordered his executor "to give up to Draper all bonds owing from him to the testator, and which should be found in the testator's possession at his death, with all interest due thereon." It appeared that Draper had executed a bond as a collateral security, and was also indebted to the testator by another bond, though it seems that the Court's attention was solely drawn to the bond and mortgage, which formed one security. Draper died before the testator, and the question was, whether this was a lapsed bequest? The Court of exchequer determined in the affirmative, upon the ground, that the benefit intended for Draper operated as a legacy by the word "give," and that such was the intention appeared from the direction to the executor as to delivering up the bonds, which was to be to Draper personally. So that Draper's interest being purely testamentary and personal, and the order for delivery of the bonds being consequential and ancillary to the bequest, the (t) See chap. XIV. sect. 1. and chap. XVII. sect. 4. (u) Ante, p. 320. (x) 2 Cox, 119, 121. Court considered the case the same in substance with Elliot v. Davenport,(y) and therefore made a similar decree. Of the SECOND distinction, the case of Sibthorp v. Maxom(z) is an example. The testatrix bequeathed in the following terms: "I forgive my son-in-law Chillingworth a debt of 500l. due to me upon bond, and all interest that shall be due from the same at my decease, and desire my executor to deliver up the bond to be cancelled." The legatee died before the testatrix, and the question was, whether, under the above form of bequest, the debt was subsisting, although Chillingworth died before the devisor? Lord Hardwicke decided that the debt was discharged according to the distinctions before stated. The remarks which occur upon perusal of the last case are these; that the whole testamentary clause is one of remission and not of gift. It is neither more nor less than an intended release or extinguishment of the debt, at all events. In the same sentence that the debt is forgiven, the security is directed to be delivered up; and not to the debtor personally, but the surrender was to be made generally, so that his representative was within the terms of the order. It was in fact, a plain declaration, that neither the debtor nor his estate should ever be called upon to pay, nor the estate of the testator receive the money due from the former to the latter. Lord Hardwicke, in his judgment, marks the differences between this and the case of Elliot v. Davenport, in the following terms: "In Elliot v. Davenport, the words are not penned as forgiveness or remission. There was no intention to release the recognizance, until B. paid 150l. out of the money secured by it; but here is a clear intention to release the debt. There it was to be delivered up to B. here in general, to be cancelled. There, the right of action subsisted, which was the reason of that opinion; here, it would be too nice to make such a distinction, which would too much circumscribe the bounty that was intended by the testatrix for her family." His Lordship also observed, that, " had it been said in Elliot v. Davenport, I forgive my son such a debt,' and the bond had been ordered to be delivered up by the executor to be cancelled; it would have been held a discharge; and that there was nothing personal in the present case, in the direction that the bond should be delivered up to be cancelled."(a) SECT. III. Effect of the death of legatees before the testator, upon the interests of persons in remainder, when the legacies are limited over upon the happening of particular events. In treating upon the effect of a legatee's death before the testator, on the interest of persons in remainder, it is proposed to consider the subject 1. Of lapse, when a legacy is given for a particular purpose, with a bequest over, if the legatee die before the object is completed, but he lives to accomplish the purpose, and then dies during the life of the testator. It it settled, that conditional limitations are never to be extended (y) Ante, p. 320. (a) See 2 Cox's Rep. 121. (z) 3 Atk. 580. |