By the rales of the common law, if a devisee dies before the testator, the devise lapses, and cannot be claimed by the devisee's heirs. It goes to the heir of the testator, and not to the residuary devisee.* This is, however, in some states now otherwise by statutory change, and the residuary devisee takes to the exclusion of the heir.† In many states also the statutes declare that, when a devise is to a child or a descendant of the testator, the devise shall not lapse if such descendant dies leaving issue who survive the testator, and in other states there is no lapse in any case.‡ Even at common law a devise of an estate to be held in joint tenancy does not lapse on the death of one of the joint tenants, even as to his share, because the rale of survivorship vests such share in the co-tenant.but if the estate was a tenancy in common, there would be a lapse of the share of any co-tenant on his death.** When a devise is to a class, as to "children" of the testator, there is no lapse.

570 Graham v. Burch, 47 Minn. 171, 49 N. W. 697; Rich v. Gilkey, 73 Me. 695; Hawes v. Wyatt, 3 Brown, Ch. 156.

571 Hocker v. Gentry, 3 Mete. (Ky.) 463; Wickliffe's Ex'rs v. Preston, 4 Mete. (Ky.) 178.

572 See Mcnaughton v. Mcnaughton, 34 N. Y. 201.

* Van Beuren v. Dash, 30 N. Y. 393; Moore v. Diinond, 5 R. I. 121. A devise to a charity will lapse if the institution ceases to exist before the testator's death. See Rymer v. Stanfleld [1895] 1 Ch. 19; Merrill v. Hayden, 86 Me. 133, 29 Atl. 949.

†1 Stim. Am. St. Law, § 2822. See St. Paul's Church v. Attorney General. 164 Mass. 188. 41 N. E. 231.

‡1 Stim. Am. St. Law, § 2823.

|| Dow v. Doyle, 103 Mass. 489; Jacksoc v. Roberts, 14 Gray (Mass.) 546: Putnam v. Putnam, 4 Bradf. Sur. (N. Y.) 308; Anderson v. Parsons, 4 Me. 486; Luke v. Marshall, 5 J. J. Marsh. (Ky.) 353.

** Horton v. Earle, 162 Mass. 448, 38 N. E. 1135; Morse v. Mason, 11 Allen (Mass.) 36; Van Beuren v. Dash, 30 N. Y. 393.

478 title. (Ch. 16 but the survivors take the share of the one deceased.573 The lapse of a particular estate does not destroy remainders which depend thereon, if they can take effect at once; that is, at the death of the testator.574