in the same will to another, they shall take it as joint tenants. devised Gilb. 159. (1)

But by lord Coke, The last devise taketh place; the same being for so much a countermand of the former part of the will. And of this opinion was lord Hardwicke in the case of Ulrich and Lichfield above mentioned, though (he said) the later opinions have taken it otherwise. 1 Inst. 112. 2 Atk. 372.

But as to this, it seemeth that no certain rule can be laid down; but the determination will vary according to the particular circumstances in each will. 2 Atk. 374. (m)

34. A devise by one joint tenant of land devisable, which he holdeth in fee, at his death, jointly with a stranger, is not good; But if such devisor doth survive all his companions, then such devise is good. Perk. 219.

Also a man cannot bequeath by will any of those goods or chattels which he hath jointly with another, though by act in his lifetime he might dispose of his part; if he bequeath his portion thereof to a third person, the legacy is void, and the survivor shall have the whole, notwithstanding the will. But joint merchants are to be excepted out of this rule; for the wares, merchandizes, debts, or duties which they have as joint merchants or partners, shall not survive, but shall go to the executor of him that dies; and this by the law of merchants. Law of Test. 188. And by the custom of the city of London, he which holdeth

(1) Ante, p. 135.; and dictum in Fane v. Fane, H. 1681, 1 Vern. R. 30. acc. But a devise of lands to A is revoked by a devise of the same lands to B., a papist: for though the last is void as a will, it is good as a revocation. Roper v. Constable, 8 Vin. Ab. 141. n. to pl. 2. 2 Eq. Ab. 771. pl. 8. Roper v. Radcliffe, E. 1714, 10 Mod. 233. 1 Bro. P. C. 450. Where a man devised lands in fee, and then leased the same to a third person; this is a revocation only pro tanto. Perkins v. Walker, M. 1682, 1 Vern. R. 97. See Coke v. Bullock, Cro. Jac. 49. (m) If a testator give a pecuniary legacy to A. by his will, and in a codicil also give the same A. a pecuniary legacy, the legatee is entitled to both sums, except a contrary intention can be collected from the will; but if the same specific thing, as a horse or diamond, be twice given to the same person, it cannot from its nature be doubled. Ridges v. Morrison, 1 Bro.C.C. 389. Hooley v. Hatton, ib. 390., with the authorities there cited. [James v. Semmens, 2 H. Bla. 313. Ingram v. Strong and others, 2 Phill. R. 312. S. P.] If the same sum of money be twice given to the same person in one writing, the presumption is, that one legacy only was intended. And where, in different codicils to a will, legacies have been repeated in such a manner as to shew that the codicils were meant as substitutions for one another, the

legatee has been decreed to take under the last only. But this being a question of presumed intention, parol evidence has been admitted to prove the contrary. Duke of St. Alban's v. Miss Beauclerk. 2 Atk. 636. Campbell v. Radnor, 1 Bro. C. C. 271. Coote v. Boyd, 2 id. 521.

twice.

[182] Things which a

person hath another. jointly with

In what

gacy shall

be said to lapse.

tenements in London jointly with others, may devise that which belongeth to him, without any other severance. Privileg. Lond.

145.

35. Generally, if the legatory die before the legacy be due, the cases a le- legacy is extinguished. Insomuch that if the testator by his last will do bequeath his lands and tenements to a man and his heirs; yet if such person die before the testator, the devise is merely void, and his heirs cannot recover the land by force of the will; because the devisee was not in being when the will should take effect: and the word " heirs" in this case is not a designation of the person who shall take, but a limitation of the estate; for if it was a description of the person, then his widow would be endowed. Plowd. 345. Swin. 35. 560. Law of Test. 230.

And so it is, if the devisee of a copyhold die before the devisor; [183] notwithstanding the surrender by the devisor of the copyhold to the use of his will. Str. 445.

And so also it is, if the legatee lives as long as the testator, but doth not survive him; for they may both die at one instant, as in a storm at sea they may both be drowned together, or by the falling of a house may both be killed at once: but if the legatee overlive the testator, even though it be but for a moment, the legacy is due, and may be recovered by the executors or administrators of the legatee. Law of Test. 231. M. 6 An. Snell and Dee. The testator bequeathed by his will in these words; I give 100l. a-piece to the two children of J. S. at the end of ten years after my decease. The children died within the ten years. And by Cowper lord chancellor: This is a lapsed legacy, and shall not go to the executors of the children: For the diversity is, where the bequest is to take effect at a future time, and where the payment is to be made at a future time: Wherever the time is annexed to the legacy itself, and not to the payment of it; if the legatee dies before the time of payment, it is a lapsed legacy in that case. 2 Salk. 415.

T. 1721, Bagwell and Dry. The testator, amongst other things, bequeathed the surplus of his personal estate unto four persons equally to be divided among them, share and share alike; and made A. B. his executor in trust. One of the four residuary legatees died in the life of the testator. After which, the testator died. And the question being, to whom the fourth part devised to the residuary legatee who died in the life of the testator belonged; the lord chancellor, after time taken to consider of it, delivered his opinion, that the testator having devised his residuum in fourths, and one of the residuary legatees dying in his lifetime, the devise of that fourth part became void, and was as so much of the testator's estate undisposed of by the will: that it could not go to the surviving legatees, because each of them had but a fourth part devised to him in common, and the death of the fourth residuary legatee could not avail them, as it would have

done had they been all joint tenants, for then the share of the legatee dying in the lifetime of the testator would have gone to the survivors; but here the residuum being devised in common, it was the same as if the fourth part had been devised to each of the four, wnich could not be increased by the death of any of them. This share shall not go to the executor, he being but a bare executor in trust; and consequently it belongs to the testator's next of kin, according to the statute of distribution; and as to this, the executor is a trustee for such next of kin. 1 P. Will. 700.

M. 2 G. 2. Page and Page. A person deviseth to his six relations, all his lands and all his personal estate, in trust to perform his will, and after all these things discharged, directed that the remainder should be equally divided amongst them, share and share alike, and made his six said relations executors. One of the six legatees died, and then the testator died. The question was, whether the share of that legatee who died in the lifetime of the testator should go to the surviving legatees, as part of the residuum; or whether in this case it should go to the next of kin of the testator, as so much of his estate undisposed of. It was argued, that where there is a lapsed legacy, it falls into the residuum of the personal estate generally; but here a part of the residuum itself is a lapsed legacy, and consequently undisposed of, and ought to go to the next of kin of the testator. For the executors are to take nothing as executors, but as residuary legatees. And one of the legatees dying in the lifetime of the testator, his share must go according to the statute of distributions, as undisposed of. And so it was decreed. Str. 820.

M. 1705, Elliot and Davenport. The testator by his will reciting that B. owed him 400l. gave and bequeathed the same to him, provided that out of it he paid several particular sums in the will mentioned to his wife and children, and the residue he freely and absolutely gave him, and required his executor, immediately on his death, to deliver up the security, and not to meddle with the debt, but to give such release as B., his executors, or administrators, should require. B. died in the lifetime of the testator. It was held, that the money directed to be paid to the wife and children was well devised; but as to the residue devised to the debtor himself, it was a lapsed legacy, he dying in the lifetime of the testator; but it was admitted, that if the testator had said, I forgive such a debt, or that my executor shall not demand it, or shall release it, that would have been a good discharge of the debt, though the debtor had died in the lifetime of the testator. 2 Vern. 521. 1 P. Will. 83.

[184]

T. 1731, Willing and Baine. The testator devised by his will 2007. a piece to his children, payable at the irrespective ages [185] of twenty-one; and if any of them died before twenty-one, then

[Residuary clause.]

the legacy given to the person so dying to go to the surviving children. One of the children died in the testator's lifetime. And the question was, whether the legacy should go to the surviving children, or should be a lapsed legacy, and sink into the surplus. By the court: The rule is true, that where the legatee dies in the life of the testator, his legacy lapses, that is, it lapses as to the legatee so dying; but in this case the legacy is well devised over to the surviving children. 3 P. Will. 114. (n) Devise of a legacy to a person and his assigns; the legatee

(n) A general residuary clause passes all that is undisposed of, as in case of a lapse. Brown v. Higgs, 4 Ves.708. [And will carry estates not in testator's contemplation, unless the will contains special indications of a contrary intention. Morgan d. Surman v. Surman, 1 Taunt. R. 289.] Therefore a leasehold house, the bequest of which to a charity failed, was held to pass under a general disposition of the residue, and not to belong to the next of kin as undisposed of. Shanley v. Baker, 4 Ves. 732.

Campbell v. French. Testator by his will gave legacies to A. and B., describing them as grand-children of C. and resident in America. By a codicil he revoked these legacies, giving as a reason that the legatees were dead. That fact not being true, they were held intitled on proof of identity. 3 Ves. 821.

Hixon v. Oliver. Testator devised to his wife "the sum of 3001. to be disposed of as she thinks proper, to be paid after his death." It was held to be an absolute interest, and transmissible to her administrator, she having died intestate. 13 Ves. 108.

Bradley v. Westcott. Testator devised 500l. to his wife, according to her appointment by will, and in default thereof to fall into the residue, which was disposed of. It was held that the power of appointment was not executed by such general words in her will, as all my personal estate," &c. and all my estate and interest therein.' 13 Ves. 445.

Godfrey v. Davis. Testator bequeathed an annuity over, upon the death of the annuitant, to the eldest child of A.; and there being no child at his death, it was held that an after-born child was not entitled. 6 Ves. 43.

In general where a sum of money, or residue of personalty is bequeathed to A. for life, and then, or if he die without issue, or marry, in whole or in part to B.; B.'s legacy is considered as a vested remainder, and transmissible if he survive the testator, although he die in the lifetime of A. Pinbury v. Elkin, 1 Wms. 563. Atkinson v. Paice, 1 Bro. 91. Barnes v. Allen, ib. 181. Godwin v. Munday, ib. 191. Monkhouse v. Holme, ib. 298. Att. Gen. v. Crispin, ib. 386. Devisme v. Mello, ib. 537. Dansen v. Hawes, Amb. 276. E. of Salisbury v. Lambe, ib. 383. Benyon v. Maddison, 2 Bro. 75. And if such be the construction of the will, the court will secure the fund, and order the produce to be paid accordingly. Green v. Pigot, 1 Bro. 103. Billings v. Sandem, ib. 393. Nowlan v. Nelligan, ib. 489. Infra, Payment of legacies, 4.

died before it was paid: adjudged, that his administrator shall have it as assignee in law. 1 Roll's Abr. 915.

tional lega

Where the legacy is conditional, the legacy is not due, until the Condicondition be performed: And therefore if the legatee die before cy.] the condition is performed, the legacy is extinguished; except in some few cases. Law of Test. 231.

If a legacy be given to a child, payable at his age of twentyone years, and the child dies before he attain that age: though the administrator of the child is entitled to the legacy, yet he shall not have it till such time as the child, if he had lived, would have attained his age of twenty-one years. 2 Vern. 199. 1 P. Will. 478.

But if a legacy be devised to a child, payable at his age of twenty-one years, and if he dies before that age, then the legacy to go over to another; in this case if the child dies before he attains the age of twenty-one, the second legatee shall have the legacy immediately. 2 Vern. 283. 2 P. Will. 478. Viner, Devise, G. d. 35. (Laundy v. Williams.)

So if a legacy be given to an infant, to be paid at his age of [186] twenty-one years, and the executors to pay interest for it until it becomes payable: if the infant dies before twenty-one, it is due presently to the executor or administrator of the infant: but if no interest was to be paid for it, then it shall not be paid until such time as the infant would have come to twenty-one in case he had lived; because there it is a benefit the testator intended to the executor by keeping it in his hands; but in the other case it would be none, when interest was payable. 2 Freem. 64.

So where the testator bequeathed to an infant 1000l. payable at twenty-one; and in the meantime the infant to have the yearly sum of 201., not amounting to the interest of the legacy given him. The infant died before twenty-one. It was held by Raymond chief justice, Jekyl master of the rolls, and Eyre chief justice, that the executors of the infant should wait for their legacy, till such time as the infant, had he lived, would have been twenty-one; it being unreasonable that the executors of the infant, standing in his place, should be in a better case than the infant himself would have been, had he been living; and it was to be presumed, that the testator had made a computation of his estate, and considered when the same would bear and allow of the payment of this legacy; and that no reason could be given why an uncertain accident should accelerate the payment of this legacy before the time, which was at first intended for that purpose. 2 P. Will. 335. [Chester v. Painter. (o)]

(0) Joseph Smith gave all his personal estate to his wife upon the following considerations: inter al. that at the decease of his said wife, or if she should marry again, 500l. be paid to his sister Sarah Smith out of the aforesaid estate, within six months after her decease or