demand against the executor, he was entitled to have it paid by the residuary legatees. The Master of the Rolls having decided, that the certificate was a bar to the claim against the executor, said, the residuary legatees could not be liable, and (as reported) that if they had filed a bill for the residue, the Court would have ordered it to be paid, without any appropriation of the legacy of 50l.; and that the residuary legatees had received no more than what they were entitled to.

The remarks to be made upon the last case are these: that since the residuary legatees received no more than what they were entitled to, the executor's payment was perfectly fair, and no devastavit; which circumstance, together with the original sufficiency of the assets to satisfy all demands upon them, took away all equity from the particular legatee to call upon the residuary legatees to answer for the executor's misapplication of the 501. And with respect to the observation attributed to the Matesr of the Rolls, by Mr. Brown, viz. that in a suit by the residuary legatees, the Court would have ordered payment of the surplus without an appropriation of the particular legacy its accuracy may be doubted; as it is presumed, that the Court would have taken care of the infant's legacy by securing it in the usual manner.

4. The remaining subject for consideration in this section is, whether in instances where the legatees are under the necessity of refunding, they will be required to return principal only, or principal with interest?

The rule applicable to this subject was stated by Lord Eldon in Gittins v. Steele.(m) "If (said his Lordship) a legacy have been erroneously paid to a legatee, who has no farther property in the estate; in recalling that payment, I apprehend that the rule of the Court is, not to charge interest; but if the legatee is entitled to another fund making interest in the hands of the Court, justice must be done out of his share."

In the case referred to,(n) a legacy of 7000l. was improperly paid out of the personal, instead of the real estate, the latter being made primarily liable to that bequest by the will. The legatee was also one of the three residuary legatees, and the personal estate was in the hands of the Court of Chancery, producing interest. A question arose between the other two residuary legatees and the particular legatee, whether the latter (he being also a residuary legatee) should be charged with interest upon the 7000l. erroneously taken out of the personal assets? And Lord Eldon decided in the affirmative, upon the distinction before stated.

(m) 1 Swanst. 200.

(n) Ibid. 24. 199

CHAPTER VIII.

Of Lapsed Legacies.

SECT. I. Of the lapse of an individual Legacy by the death of the Legatee during the life of the Testator.

1. When the bequest lapses, although made to the legatee, his executors, administrators, or personal representatives.

2.-Of the admissibility of parol evidence of the testator's intention that the executors, administrators, or personal representatives were meant to take if the legatee died before him.

3.-Exceptions to the rule of lapse, when the legacy is given to the executors, administrators, or personal representatives of the legatee.

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. 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.

1.-Of lapse, when a legacy is given for a particular purpose, with a bequest over. if the legatee die before the object be accomplished; but he lives to complete the purpose, and dies during the life of the testator. 2.-Of lapse, when the event upon which a legacy is given over happens in the testator's life-time, and the legatee dies before him.

3. Of lapse, when the legatee dies before the testator, and prior to the event happening upon which the lega cy is limited to another person.

SECT. IV. Of lapse of Legacies given to persons in JOINTTENANCY, or as TENANTS IN COMMON.

1.-In joint-tenancy.

2.-As tenants in common-and

1.-When given to children.

2.-When with a limitation over to survivors,—And

3. Of lapse of accrued shares.

SECT. V. Of lapsed Legacies, when the bequests are made under Powers.

SECT. VI. Of the persons entitled to lapsed Interests.

1.-When the subjects are general legacies or personal residues.

2.-When they are legacies payable out of lands, or the proceeds of lands directed to be sold.

SECT. I. Of the Lapse of an individual Legacy by the death of the Legatee during the life of the Testator,-And1. WHEN the bequest lapses, although made to the executor or administrators, or the personal representatives of the legatee.

No rule is more clearly established than that a testamentary disposition must lapse by the death of a legatee during the life of the testator. And it will not vary the rule, although the bequest be made to the legatee, his executors or administrators; for such words are of no importance, inasmuch as those persons would have taken the legacy in succession and by representation, if it had vested in the legatee, whether expressly named by the testator or not; but since the legatee's death before the testator, prevented his ever taking any interest in the bequest, it follows that his executors or administrators can, by no possibility, make a title to that which never vested in the testator. This is the principle of the rule, which equally applies to devises of real, as to bequests of personal estate; so that if lands were devised to A. and his heirs, and he died before the devisor, leaving an heir living at the death of the testator, the heir could not make a title to the estate; because he was intended to take it in succession as representative of the devisee, but which was impossible from the accident of the latter dying before the devisor; an event that prevented the devisee taking any interest in the property transmissible to his heir. (a) These must be admitted to be hard cases, and are probably contrary to the intention of testators; but as the rule is clear, a court of equity requires an equally manifest intention of testators, that their legal representatives were not meant to take by representation, but as purchasers in their own rights.

A leading case upon this subject is Elliot v. Davenport,(b) in which B. being indebted to A. in 400l. by recognizance, A. bequeathed to him, his executors, administrators, and assigns, the 400l. which he owed her (the testatrix,) with all interest due for the same; provided he paid out of that sum several legacies to his children, amounting to about 150l.; and the remainder of the money the testatrix gave to B. his executors, administrators, and assigns. The testatrix desired her executors not to claim or meddle with the 400. but freely to deliver up the security for the same into the hands of B., his executors, administrators, and assigns, and to seal and execute to him and them such reasonable releases and discharges, and acknowledge satisfaction for the 400l. for the safety of B. &c., as B. &c. should think proper. B. died before the testatrix, and the plaintiff, the heir of B., filed the bill against the executor of the testatrix to be discharged from the recognizance; upon which a question arose concerning so much of the 4001. as was given to B., viz. whether it was not a lapsed bequest. And Lord Cowper determined in the affirmative, in conformity with the rule before stated; and he considered the direction to the executors to deliver up the security, &c. to the legatee, as ancillary to the bequest, and merely legatory, and therefore insufficient to convert the case into an exception to the general rule.

The reporter observes, in a note to the last case, that the opinion of the Master of the Rolls was different from Lord Cowper's deci(a) Brett v. Rigden, Plowd. 340. (6) 1 P. Will, 83.

Yet

sion, and that Lord Cowper even said it was a doubtful case. it would seem, for the reasons before detailed, that the decree is founded upon solid principle; and its authority has been admitted by subsequent cases.(c)

Since then a legacy to A., his executors or administrators, will, as we have seen, lapse by his death before the testator, so will a legacy given to A. and his personal representatives; for in each case the additional words are unnecessary, (d) and merely express what the law would have directed if the testator had been silent on the subject; viz. that if A. survive the testator (an event which the gift implies, since no testator could be supposed to mean to give to any but those persons who shall survive him,) and afterwards die before the legacy becomes payable, his personal representative shall receive it. Hence it appears that the mere naming of the executors, administrators, or personal representatives of A. is not inconsistent with the rule before mentioned respecting the lapse of legacies, and does not unequivocally show the testator's intention to substitute those persons in the place of A. in the event of A.'s death before him.

The rule in regard to lapse will equally apply, although the legacy be not immediate, but expectant upon a life interest, and the form of bequest be to the legatee, or his executors or administrators, or to his personal representatives; because the testator may have merely intended to provide against the death of the legatee between his own decease and that of the tenant for life. Since, therefore, there is a period to which the gift to the executors or administrators or personal representatives of the legatee may refer, without interfering with a lapse in the event of his death before the testator, the intention on the part of the latter to provide against that contingency, is not sufficiently certain to counteract the general rule; so that if the legatee die during the life of the testator, his legacy will be lost.

This point was determined by Lord Alvanley in the case of Corbyn v. French,(e) in which the testator gave his residuary estate to trustees, to place at interest, and directed them to pay that interest to his wife for life, and at her death 2000l. (part of the capital) to his niece B. "or to her proper representative," if she should not be living at his wife's decease. The testator also gave to each of his sisters' children (naming them) "or their representatives or representative," 2000l. (other part of the capital.) John, one of the children, died before the testator; and the question was, whether his legacy lapsed or belonged to his representatives? And Lord Alvanley determined it was lost for the reasons before stated; his Honour observing, "that the question could be hardly raised upon the will; for (said he) look at the preceding legacy to B. Would it not have lapsed if she had died before the testator? Beyond all question it would have done so. It is nothing more than saying the legacy shall go to her representatives if she die before the wife. And as to the other legatees, it is nothing more than a gift to them at the wife's death, which was only intended as a beneficial interest to them, and as such must vest in them before it could be transmissible. It is

(c) See Toplis v. Baker, 2 Cox, 122. Pickering v. Lord Stamford, 3 Ves. 493. Corbyn v. French, 4 Ves. 435. Maybank v. Brooks, 1 Bro. C. C. 84. Hutcheson v. Hammond, 3 Bro. C. C. 129. 143. (d) 4 Ves. 435.

(e) Ibid. 418, 435, and see Hutcheson v. Hammond, 3 Bro. C. C. 129. 143. S. P.

perfectly clear that where the fund is given to one for life, and after the death of that person to several others, and in case of their death to their representatives, there is no reason to presume an intention that it shall not lapse by the death of the legatee in the life of the testator." Thus in Bone v. Cook, (f) the testatrix devised and bequeathed the general residue of her real and personal estate to trustees, in trust to sell and invest the produce in the public funds, &c. and pay the interest to Sarah Jelly for life, and after her death (as to one moiety) to pay the same unto and between the two children of Elizabeth Bone, deceased, equally; and in case of the death of any of the said legatees before their legacies should become payable, then that the legacy of each of them so dying should go to and be paid amongst his, her, or their children, share and share alike; and in case of such decease of any of the said legatees without having a child or children, the legacy of him or her so dying should go to his or her executors or administrators as part of his or her personal estate. One of the children of Elizabeth Bone died in the testatrix's lifetime, unmarried. It was held, that the legacy of such child lapsed; the intervening provision (substituting the children of the legatee) affording no reason for presuming an intention that the legacy should not lapse.

The principle of the last cases equally applies where the payment of the legacy is postponed to the expiration of a year, or of a longer period, after the testator's death; for, in such instances, the substitution of executors, administrators, or personal representatives in the places of the legatees may be intended to provide against the death of any of them after the decease of the testators, and before they become entitled to receive the legacies: a construction quite consistent with the rule of lapse in the event of any of the legatees dying during the life of the testators.

It follows, therefore, that if legacies be given to B., C. and D., and directed to be paid to them or to their several executors, or administrators, or personal representatives, or "heirs," a term synonimous with personal representatives, at the end of a year after the testator's death, and B. die before the testator, the legacy intended for him will be lapsed.

This point was so adjudged in the case of Tidwell v. Ariel,(g) in which the Court acknowledged the principal before stated, in observing, that "payment to the representative at the end of a year after the testator's death, if the legatee be not then living, is not inconsistent with a personal gift to the legatee."

2. It has indeed been attempted to introduce parol evidence of the testator's intention to substitute the executors or administrators of the legatee in his place, in order to prevent the lapse occasioned by his death before the testator. But the Court of Chancery rejected such testimony.

Accordingly, in Maybank v. Brooks, (h) the testator (whose father was indebted to Maybank) left a legacy of 8501. of equal amount with the debt, to Maybank, his executors, administrators, or assigns. At the time of the gift of this legacy, Maybank was dead, but no notice of the circumstance was taken in the will. The personal re(f) M'Clel. Exch. Rep. 168. 13 Price, 332. and see Chap. II. s. 8. (g) 3 Mad. 404. 409. (h) 1 Bro. C. C. 84.