standing this act of confirmation, the daughter's proportion of the residue would be lapsed for the reasons before mentioned. So it was determined by Lord Northington in Cheslyn v. Cresswell, and by the House of Lords on appeal from his decree.(a) It appears from the report of the arguments of counsel, that this was the point upon which the decision in the House of Lords was founded, although it be observable from the same report that the daughter died before the testator.

1. A distinction however must be noticed between cases where a legacy is given to a class of persons in general terms as tenants in common, as to the children of B, and those instances in which it appears upon the face of the will that particular objects at the date of it were intended to take the property. In the latter we have seen that the death of one of the legatees before the testator, or a revocation of the bequest to him, will occasion a lapse, but it is not so in the other, since it is presumed that those persons of the described class, who should survive the testator, were the only objects of his bounty; so that if an individual answering the description of the bequest, and who, if living at the death of the testator, would have been entitled to participate in the gift, happen to die before him, that event will not, upon the foundation of the above presumption, occasion a lapse of any part of the fund; but those persons, answering the description at the period of the testator's death, will be entitled to the whole of it. This will be illustrated by the following

case:

In Viner v. Francis, (b) the testator gave "to the children of his late sister Mary Crowson 2000l. to be equally divided among them." His residuary estate he bequeathed in thirds, one third to his brother, another third to his sister Martha, and the remaining third he gave "to the children of his late sister Mary Crowson, equally to be divided between the children of his brother S. Wiggington, his sister Martha, and the children of his late sister Mary Crowson." When the will was made Mary Crowson had three children, John, Elizabeth, and William, but William died before the testator, and it was contended that one-third of a third of the 2000l. and of the residue bequeathed to the children of Mary Crowson, lapsed into the residue by the death of William in the life of the testator. But the Court declared the contrary, and that those children of Mary living at the testator's death were entitled to the 2000l. and the third of the residue.

A case indeed of Martin v. Wilson, (c) is a decision contrary to that of Viner v. Francis, which was not mentioned or referred to. But upon principle it is conceived that the latter would be followed in preference to the former. The one prevents a lapse without doing violence to the testator's intention or the expressions in his will; whilst the other produces a lapse, by entertaining a construction neither required by the description in the will, nor the clear intention of the testator.

2. Another exception to the rule of lapsing, in consequence of one the legatees dying before the testator, occurs when there is a (a) 3 Bro. Parl. Ca. 246. 8vo. ed. 2 Eden. 123. S. C.

(b) 2 Cox, 190. 2 Bro. C. C. 658. S. C. (c) 3 Bro. C. C. 325. Ed. by Belt.

limitation over of the legacy to the survivors generally, or upon the death of any of them under the age of twenty-one. In such instances, it is settled that the limitation to survivors shall have effect during the continuance of the testator's life; so that, in the first case, if a legatee tenant in common die before the devisor, or if in the second, the legatee die in the testator's lifetime before attaining twenty-one, or the happening of the event upon which the limitation over is made to depend, the legacy will not lapse, but go to the survivors under the express provision in the will.

Of the FIRST proposition the resolution or assent of the Court in the case of Northey v. Burbage, (d) is an example. A. bequeathed 500l. a piece to his grandchildren B. and C. and if either of them died his share was to go to the survivor. B. died before the testator, yet it was held that his share did not lapse but went to the other grandchild.

So in Smith v. Pybus, (e) Lady Fletcher bequeathed a personal annuity after the death of her father, to be equally divided between her brother and sisters Charles and Catharine Pybus, and Martha Briggs, "to them and their heirs or the survivors of them, in the order they are now mentioned." Martha died before the testatrix, and Sir William Grant, M. R. determined the bequest to be of a perpetual annuity, over which the surviving legatees had an absolute power of disposition; and that Martha's intended share went over to her brother and sister under the limitation to the survivor. And his Honour rejected the words, "in the order they are now mentioned," as unintelligible and inconsistent with the previous clear expressions in the will.

Of the SECOND proposition, the following authorities are instances: In Miller v. Warren, (f) the testator gave to the four children of H. Miller 1500l. a piece (naming them,) to be paid to sons at twentyone and to daughters at eighteen or marriage; and if one or more of them died before their legacies became due the same were to go to, and be divided among, the surviving legatees. Mary, one of the four children died during the life of the testator, and it is presumed before attaining her age of eighteen or being married. The question was, whether the 1500l. intended for her lapsed, or went to the surviving children? And it was decreed that the survivors were entitled to it, the Court declaring, that should a legacy be given to A. at twenty-one, and if he died before that period then to B., although A. died during the life of the testator, yet the legacy should go to B.

Also in Ledsome v. Hickman,(g) the defendant's testator gave 300l. a piece to A., B. and C. at twenty-one or marriage, and if any died before, then to the survivor. B. died in the testator's lifetime. The question was, whether the 300l. lapsed, or went over to A. and C.? And it was decreed in their favour. Again

In Perkins v. Micklethwaite, (h) one Micklethwaite having two sons, Thomas and Joseph, and also two daughters, bequeathed 1500l. to his younger son Joseph, and 1000l. to each of his two daughters; and directed that if any of his three younger children

(d) Pre. Ch. 470. and see Barker v. Giles, 2 P. Will. 280. 3 Bro. Parl. Ca. 104. 8vo. ed. (e) 9 Ves. 566,

(f) 2 Vern. 207.

(g) 2 Vern. 611.

(h) 1 P. Will. 274.

died before twenty-one or marriage, his or her portion should go to the survivors, and he gave his real estate to the eldest son charged with those portions. One of the daughters died under age and before marriage, and then Joseph died under twenty-one and unmarried, in the lifetime of his father, the testator, who lived to have another son whom he named Joseph, upon which occasion he made a codicil and confirmed his will, noticing that since the making of his will another son was born to him, and he therefore gave 500l. a piece to his son Joseph and his surviving daughter, over and above what he had given them by his will. It being objected that by the death of the first Joseph the portion of 1500l. intended for him lapsed. Lord Cowper, Ch. said, it was improper to call it a lapsed legacy, because it was a portion given over, and should take effect; that the codicil was a republication of the will, and amounted to a substitution of the second Joseph in the place of the first, as if the testator had made his will anew, and had written it over again, by which new will the second Joseph must take; and that the fixed intention of the testator appeared to be that Joseph should have more than his daughter, whereas if the legacy of 1500l. should be taken to be lapsed the daughter would have twice as much as Joseph.

The last case was followed by Willing v. Baine,(i) in which A. bequeathed 2001. a piece to his children, payable at twenty-one, and if any of them died before that age, then his legacy was to go to the surviving children. One of the children died in A.'s lifetime, and upon a question whether such child's legacy lapsed or belonged to the survivors, it was resolved by Lord King, Ch., that although the legacy lapsed quoad, the deceased legatee, it was nevertheless well given over to the surviving children.

The principle of the last authorities was adopted by Lord Thurlow in Rheeder v. Ower.(k) In that case; the testator, Mitchell, directed his trustees to invest his residuary estate in the funds, and to pay the dividends to his five sisters (naming them) in equal shares, during their lives, for their sole use and benefit; and if any of them died leaving issue, then the trustees were "to pay and transfer the share of the residue (to which his sister so dying, was entitled at or before her decease, to receive the dividends thereon) unto and among all such children, or to such child of his deceased sister, equally at their ages of twenty-one." One of the testator's sisters, named Ann Holdgate, died before him leaving children, the plantiffs, Rheeder and Jennings, who attained twenty-one, and claimed one-fifth of the residue, notwithstanding the words of the bequest to children, seemed to exclude those of sisters dying during his life; and against the claim it was alleged, that in order to enable children to take under the will, they must be of such sisters as would be entitled to receive the dividends for their lives, which a sister dying before the testator was not. But Lord Thurlow thought that the plaintiffs were entitled to the share of their mother, as an executory devise; and that in a will so loosely drawn, it was more probable that such was the testator's intention than the contrary.

The cases which have been produced clearly establish, that when legacies are given to persons as tenants in common, with a limitation (i) 3 P. Will, 113. (k) 3 Bro. C. C. 240.

to the survivors, upon the death of any of them under twenty-one, if any of those persons happen to die under that age before the testator, his legacy will not lapse, but survive to his companions, from the effect of the will. The result, however, would be different, if the legatee's death had taken place after he attained twenty-one, for the reasons and upon the authorities mentioned in the last section.()

3. Instances indeed may occur, where legacies are given to persons as tenants in common, with an executory bequest to the survivors, that if two or more of the legatees shall die before the testator; so that it may be necessary to consider, whether the original shares only, or the accrued as well as the original shares passed to the surviving legatees. But it is settled, that where distinct legacies are given to individuals in common, with a limitation to the survivors, the original, and not the accrued legacies, will pass to the other legatees; consequently, the latter legacies will lapse by the death of the legatees, who would have been entitled to them, in the lifetime of the testator. Questions of this nature depend upon the sufficiency of the words made use of by the testators to embrace accrued legacies or shares of accrued legacies; and it has been decided, that the term " portion," or "share," will not include them.

Accordingly, in Perkins v. Micklethwaite,(m) distinct legacies were given by the father to his youngest son and two daughters; but if any of them died before twenty-one or marriage, his or her portion was to go to the survivors. A daughter died unmarried, and a minor; and then the son died under twenty-one, and without being married. It was one of the questions, whether, upon the son's death, the part of his sister's legacy, to which he would have been entitled, if he had outlived the testator, passed with his original legacy to the surviving daughter? And Lord Harcourt, Ch. determined in the negative, because there were not words sufficient to pass the accrued share.

In ex-parte West,(n) Lord Thurlow expressed an opinion, that the word "share," would not pass an accrued interest under a limitation to survivors; and that opinion was confirmed by the decree of Lord Kenyon, M. R. in the same matter, in a suit instituted for the purpose of obtaining the solemn decision of the Court upon the question.

An exception to this rule of the lapsing of accrued interests, has been determined to exist, where the legacies are not distinct; but an aggregate fund is bequeathed to persons in common, with a limitation to survivors, and the testator's intention appeared from his expressions, to preserve the property in an aggregate state throughout his dispositions of it. The general rule is disapproved of, as in most instances, defeating the intention of testators; but a court of equity considers itself bound to follow it to the extent of its establishment. In the present instance, Buller, J. considered the rule to be inapplicable, and decided according to that impression.

The case alluded to is Worlidge v. Churchill, (o) in which Edward Worlidge devised to trustees all his real and personal estates, in

(1) Ante, p. 327. et seq.

(m) 1 P. Will. 274. stated supra, p. 334. (n) 1 Bro. C. C. 575. Ed. by Belt. and see Forrest. 124. 3 Atk. 79. 2 Ves. jun. 534. 5 Ves. 465. (0) 3 Bro. C. C. 465.

trust, to sell the former, and invest the clear surplus, and his personal estate, in the funds for the benefit of his four children, Rosalba, the plaintiff, Edward, William, and John Worlidge, to be equally divided amongst them at twenty-one; but if any died before that age, his or their share or shares were to go to the survivors or survivor. The testator also directed his trustees to apply the interest of such trust money during the minorities of the legatees, for their support and education; and, if more than sufficient for that purpose, the surplus was to be invested for their mutual benefit. And if all of them died under twenty-one, before Mary Worlidge (to whom he had given an annuity) the interest of the trust money was to be paid to her. And after the decease of all, he gave the trust money to other persons. John first died a minor, as is presumed, before the testator; and William and Rosalba died under twenty-one, after surviving the testator, leaving their brother the plaintiff, Edward, who, as the survivor, claimed the whole fund, consisting as well of accrued as of original shares. And Buller, J. decided in favour of the claim; first, because the present bequests were not given as distinct legacies, but as an aggregate fund; and secondly, in consequence of the testator's intention to keep it in that state, which he manifested by applying the words "trust money" not to each child's share, but to the whole fund.

The next subject proposed for consideration is

SECT. V. Lapsed Legacies when the bequests are made under Powers.

The general rule of equity relating to lapses, is equally applicable, whether the legacy be given under a will made by virtue of donorship flowing originally from the testator, or whether it be given under a power created for the purpose; for, in the latter case, although the legatee will take under the authority of the power, yet he will not be considered as taking from the time of its creation, so as to prevent a lapse occasioned by the death of the legatee before the appointor, when the power is executed by will, and for the following reasons. The legatee does not take under the power solely and exclusively, but under it and the will jointly. The will so made, is to be construed and considered like all others. It is, therefore, ambulatory, revocable, and incomplete, till the death of the testator; consequently, no person can take under it, who does not survive him. If, then, an appointee, by will made under a general power, die before the testator, his legacy will lapse in all such instances, as it would do, if the legacy had been given out of the testator's own property, over which he had absolute dominion.

Accordingly in Oke v. Heath, (p) Mrs. Smith was empowered, by articles of settlement, entered into upon her marriage with William Smith, to appoint by deed or will 4000l. to such persons as were or should be her next of kin, in the events of her dying before her husband, and without leaving issue, both of which events happened; Mrs. Smith executed her power by will, appointing the 4000l. to her nephew, W. Gill, he paying out of it an annuity to his mother for life. W. Gill died before the testatrix. Lord Hardwicke de

(n) 1 Ves. sen. 135. 141.