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beyond what is absolutely necessary from the context of the will. It is a consequence of this doctrine, that if a legacy be given to A. to defray the expense of building a house, which A. intends to erect at B., and in the event of A.'s death, before the house be built, the legacy is given to C., if A. complete the building, and die during the life of the testator, C. cannot claim the bequest, because the legacy was only given to him if A. died before the building of the house, a contingency which did not happen. The legacy therefore lapses by the death of A. in the lifetime of the testator.

The case of Humberstone v. Stanton, (b) was decided upon this principle. The testator bequeathed to trustees 750l. three per cent bank annuities, for his wife for life, with a direction to sell the fractional 50l. to place out his son Joseph an apprentice. He then gave 4501. of the annuities, or 400l. (if the 50l. had been applied as above) after his wife's death to Joseph, upon completing his apprenticeship. The intermediate dividends to be applied for his support and clothing, until his service expired. But if Joseph died before the completion of his apprenticeship, he gave the annuities to his other children nominatim, or to such of them as should be living when the contingency happened. After the date of this will, the testator placed Joseph an apprentice; who, having completed the necessary term of service, died before the testator. The question was, whether the legacy lapsed, or belonged to the other children under the executory limitation? And Sir William Grant, M. R. determined that as the legacy was disposed of in the event only of Joseph's death, before finishing his apprenticeship, the substituted limitation was disappointed, and a lapse necessarily ensued by the death of Joseph before the testator.

2. The principle of the last determination applies to all those cases in which distinct legacies, (c) are given over upon events which happen during the testator's life, and the persons to whom the bequests are first made, die before the testator. For since the executory limitations are made expressly to depend upon the not happening of the events described: if they occur while the legatees live, and they die either before or after the testator, it is clear from the terms of the will, that the executory limitations cannot take place; the contingencies upon which they were to arise never having had existence. The testator's intention may sometimes be defeated by the construction, but it is his own fault as quod voluit non dixit; and it is more eligible that a private inconvenience should be tolerated, than a certain known rule of construction be infringed, and a court of justice assume the power, on mere conjecture, to make a codicil to the will. In these cases, therefore, the legacies lapse. In illustration of these remarks, we shall produce two instances where the happening, in the testator's lifetime, of the events in which the legacies were given, occasioned those legacies to lapse by the deaths of the legatees before the testators, notwithstanding the executory bequests of the legacies to other persons.

In Calthorpe v. Gough, (d) 10,000l. were bequeathed in trust for the separate use of Lady Gough, and if she died before her husband,

(b) 1 Ves. & Bea. 385.
(d) 3 Bro. C. C. 395. note.

(c) See sect. 4. "Joint tenancy," p. 330, in exception. 1 Ves. & Bea. 389.

then according to her appointment; and if she made none, the money was to go among her children, but if she survived her husband the whole was to belong to her. The event in which the children were to take did not happen; that in which she was to take absolutely occurred, but she died during the life of the testator. And it was decided that the legacy lapsed.

So also in Doo v. Brebant,(e) a legacy was given in trust for Sarah Counsell until she attained the age of twenty-one, with a direction for the transfer of it to her at that time; but, in case she died under twenty-one, leaving children, then in trust for them, and if she died under that age without leaving a child or children, or, there being any, if all of them died under twenty-one, the legacy was given to other persons. Sarah attained the age of twenty-one, married, and had children; but she died before the testatrix, leaving two infant children. It appears from Mr. Brown's report of the case, that Lord Thurlow disapproved of the last, and inclined to the opinion, that upon the principle of Jones v. Westcomb, (f) and other cases of that class, the children should be permitted to take; but he sent a case to the Court of King's Bench, which held with great clearness, that the children could not take any thing. On which occasion Lord Kenyon said, "if this event had occurred to the testatrix, most probably she would have provided for it, and given the money to the grand-children; but as she has not done so, we cannot make a will for her." The legacy therefore lapsed, and in consequence of the opinion of the court of law the Lords Commissioners of the Great Seal afterwards dismissed the bill of the children claiming the legacy.(g)

In the cases just discussed, the lapse was occasioned by the deaths of the legatees in the lifetime of testators, where the events upon which the legacies were given happened during the joint lives of the legatees and of the testators; and which would have entitled the former to the bequests absolutely, had they survived the latter. It remains to consider,

3. Whether, if the events upon which the legacies were limited over had not happened during the lives of the legatees, those legacies would lapse to the prejudice of the persons in remainder, by the deaths of the legatees before the testators? But since the cases determined upon the subject have been generally on questions between tenants in common, founded on limitations to the survivors in the event of any of them dying under the age of twenty-one, the reader is referred to the next section. Suffice it to remark in this place, that it seems formerly to have been a question whether a bequest over in case of the death of the legatee before the arrival of a certain time, could take effect when he died during the testator's life, although before the period specified. It is, however, now settled, that in such a case the bequest over is effectual, and no lapse occasioned by such a death. So that if a legacy were given to A. payable at twenty-one, and if he died under that age, then to B.;

3 Bro. C. C. 393. 4 Term. Rep. 706. 1 Ves. & Bea. 389. (f) Pre. Ch. 316.

(g) See the next section under "Joint tenancy," and Chap. XIII. sect. 1. also Doe v. Shipphard, Dougl. 75. Williams v. Jones, 1 Russ. 517.

should A. die before twenty-one in the lifetime of the testator, the legacy would not lapse, but B. would be entitled to it.(h) The principle is obvious. The event upon which the executory limitation was to take place has happened, i. e. the death of A. under twenty-one. That death was not required to be after the demise of the testator, so that a death at any period before twenty is within the terms of the will, and doubtless according to the intention of the testator.

Having in the preceding sections treated of the lapses of legacies given to persons singly and individually, the subjects proposed to be next considered are,

SECT. IV. Of Lapses, when Legacies are given in Joint tenancy, or in Tenancy in common.. And

1. Of bequests in joint tenancy.

If a legacy be given to two persons jointly, although one of them happen to die before the testator, or notwithstanding the testator revoke the interest originally intended to be given to either of them; such interest will not be considered lapsed or undisposed of, but will survive to the other legatee. This exception to the general rule relating to lapsed legacies, originates in the nature of the interest which joint legatees have in the fund; for they do not take it per mis only, like tenants in common, (i) but per mis et per tout. With this agrees the observation of Bridgman, Ch. J. in Davis v. Kemp,(k) "that each is a taker of the whole, but not solely; for the whole is devised to both, and not a moiety to each." If then upon any event one of the two legatees be deprived of taking the benefit intended for him, the interest of his companion, which extended per tout, and was undivided, becomes absolute in the whole fund.

In Buffar v. Bradford(1) the testator gave four of eight parts of his residuary personal estate "to his niece Buffar, and the children born of her body." The niece had no child when the will was made, but one (the plaintiff) was afterwards born, and during the life of the testator, and the niece died before the testator. Lord Hardwicke determined that the niece and child would have taken in joint tenancy had the former lived, but as she died in the testator's lifetime her child should take the whole.

So in the case of Humphrey v. Tayleur,(m) A. bequeathed the residue of her real and personal estate to Tayleur and Wauchope, whom she appointed executors. A. afterwards, by a codicil, revoked the nomination of the latter as executor, and what was given to him by the will. Lord Hardwicke decided the effect of revocation to be, to give the whole residue to Tayleur; upon the principle that he and Wauchope would have taken the fund as joint tenants by the words of the will, if the bequest to Wauchope had not been repealed Again—

In Lowset v. Sweet, (n) the testator gave 100l. part of a mortgage debt, to the son and daughter of William Wicker. Wicker had four

(h) 2 Vern. 207. 611. 1P. Will. 274. 2 P. Will. 529. 3 P. Will. 113. Walker v. Main, 1 Jac. & Walk. 1.

(i) 3 Ves. & Bea. 54. (m) Ambl. 136.

(k) Carth. 3.

(1) 2 Atk. 220.

(n) Ambl. 175.

sons and one daughter. None of the sons being able to take, from the uncertainty of the one intended, Lord Hardwicke decreed the whole legacy to the daughter, observing, that it was a joint devise, and in such a case, by whatever cause it happened that one of the joint tenants could not take, the other should have the whole.

And in Morly v. Bird,(o) the testator bequeathed to the four daughters of his brother Collins 400l. out of seven, then lying in the three per cent consols. Three of the daughters died before the testator, and Lord Alvanley, M. R. declared the 4001. belonged to the surviving child.

Since then legacies given to two or more in joint tenancy will, on the death of any of them in the testator's lifetime, survive to the other legatees, where the terms of the bequest proceed no farther than to give the joint interests; it may be asked, whether, if a testator add to the gift a declaration, that if any of the joint legatees die under twenty-one, their legacies shall go to the survivors, and one of them after attaining that age die before the testator, his interest will lapse and not go over? In the instance of an individual legatee with a limitation over to another person, if he die before twenty-one, it has been shown that his death before the testator after attaining that age, occasions a lapse of the legacy.(p) But in the present case, as the legatees are intended to be joint tenants, a character which would entitl ethe survivors to the whole fund, if no limitation over had been inserted, it is presumed, that as such limitation cannot take effect upon the event described, the rights of the legatees are restored to the same state as they would have been in had no such executory bequest been introduced into the will; and, therefore, since the survivors would have taken the whole legacy, although any of them died before the testator, whatever might be the age of the legatee, so in this case they will be equally entitled, although the legatee died after attaining twenty-one.

In instances where executors take the residue in the character of executors, or by a joint bequest, they do so in joint tenancy.(q) Consequently, if one or more of them die before the testator, the survivors will be entitled to the whole property, for the reasons before detailed.

Thus in Frewen v. Relfe,(r) the persons whom the testatrix, after various changes, ultimately appointed her executors, were M. Berry, M. Barham, L. Relfe, P. Frewen, and H. Benge, and no disposition was made of the residue. The two first named executors died before the testatrix, and Lord Thurlow determined that the survivors were entitled to the whole of the fund.

2. With respect to legacies given to persons as tenants in common. 1. It is a rule when distinct legacies are given to individuals, or an aggregate fund is directed to be divided among them, nominatim in equal shares, their interests are several; and if any of them die before the testator, what was intended for those legatees will lapse into the residue; because the others have no interest in the benefits intended for the deceased legatees, each legatee being solely enti

(0) 3 Ves. 628. 631.
(h) Ante, p. 328.
(q) 2 P. Will. 247. 529. 2 Bró. C. C. 25. 9 Ves. 204. 598.
2 Bro. C. C. 220. See chap. XXIV. sect. 2. sub-sect. 9.

tled to his own legacy or proportional share. In this consists the distinction between tenants in common and joint-tenants, and hence arise the different results in regard to lapse. In the one case (as we have seen) the death of one joint tenant before the testator will not occasion à lapse; but in the other, that accident will defeat the legacy, or the share, of the deceased in the aggregate fund.

Accordingly in Man v. Man,(s) the testator, after giving his personal estate to his wife for life or during widowhood, bequeathed it to A., B., C. and D. his brothers and sisters, in equal shares. B. and C. died before the testator, and it was determined by Sir Joseph Jekyll that those two shares lapsed.

So in Bagwell v. Dry(t) the residuary personal estate of a testator was given to four persons, share and share alike. One of them died during the testator's life, and Lord Macclesfield held, that the proportion of the deceased legatee was undisposed of. Again

In Page v. Page, (u) the bequest of the residue was made to six persons, "to each of them a sixth part." One of whom having died before the testator, Lord King decided that his share was lapsed.

Also in Owen v. Owen,(x) a testatrix gave the surplus of her estate to her nieces Mary and Elizabeth, daughters of Mr. and Mrs. Owen, in equal shares. One of the nieces died before the testatrix, and Lord Hardwicke determined that her share was undisposed of.

The last case was followed by Peat v. Chapman,(y) in which a similar decision was made by the Master of the Rolls.

And in Ackroyd v. Smithson,(z) the testator, after giving distinct legacies to a number of persons, also gave them his residuary estate (consisting of personal property, and the produce from the sale of his real estate) "in proportion to their several and respective legacies therein to them bequeathed." Two of those legatees died before the testator, and their legacies and shares of residue were determined by Lord Thurlow to have lapsed for the benefit of the heir and next of kin of the testator.

The rule relating to interests lapsed by the deaths of legatees during the life of the testator, equally applies to cases where a testator revokes by codicil the benefit intended for one tenant in common, and makes no other disposition of it. And although he confirms the will, still the other tenants in common cannot make a title to the revoked share; because by the will they took no interest in such share, but only in their own several proportions; therefore, since the confirmation of the will had no other effect, than to make it speak from the date of the codicil, no new estate or interest having been given to other tenants in common, it necessarily follows, that, as they, neither under the will or codicil, can take the revoked interest, it is undisposed of, and falls into the residue. In order to exemplify this proposition

Suppose a testator having children to give his residuary estate among two of his sons and one daughter, as tenants in common, and afterwards to add a codicil revoking the residuary bequests to his daughter, but confirming his will in all other respects. Notwith(8) 2 Stra. 905. (t) 1 P. Will. 700. (u) 2 P. Will, 489.

(x) 1 Atk. 494. (y) 1 Ves, sen, 542. infra, Chap. XXIV. sect. 2 sub-sect. 9. (z) 1 Bró. C. C. 503.

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