This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
32. 1 Stimson's Am. St. Law, Sec. 2823(A).
33. 1 Stimson's Am. St. Law, Sec. 2823(B), (C). See Page, Wills, Sec.Sec. 742, 743; 2 Woerner, Administration, Sec. 435.
34. If the gift is to them as joint tenants, those of them who survive the testator will take all. See ante, Sec. 191.
35. Bill v. Payne, 62 Conn. 140, 25 Atl. 354; Magnuson v. Magnuson, 197 111. 496; Morse v. Hayden, 82 Me. 227, 19 Atl. 443; Best v. Berry, 189 Mass. 510, 109 Am. St. Rep. 651; Moffett v. Elmendorff, 152 N. Y. 475. 57 Am. St. Rep. 529, 46 N. E. 845; Twitty v. Martin, 90 N. C. 643; Strong v. Ready, 9 Humphr. (Tenn.) 168; In re Sharpless' Estate, 214 Pa. 335, 63 Atl. 884.
36. In re Warner's Appeal, 39 Conn. 253; Lancaster v. Lancaster, 187 111. 540, 79 Am. St. Rep. 234, 58 N. E. 462; In re Nicholson's Will, 115 Iowa. 493, 91 Am. St. Rep. 175, 88 N. W. 1064; Stetson v. Eastman, 84 Me. 366, 24 Atl. 868; Shots v. Poe, 47 Md. 513, 28 Am. Rep. 485; Dove v. Johnson 141 Mass. 287, 5 N. E. 520; In re Woodward's Estate, 84 Minn. 161, 86 N. W. 1004; Carter v. Long, 181 Mo. 701, 81 S. W. 162; Campbell v. Clark, 64 N. H. 328, 10 Atl. 702; Campbell v. Rawdon, 18 N. Y. 412; Hmel v. Betjemann, 183 N. Y. 194, 2 L. R. A. (N. S.) 580, 5 A. & E. Ann. Cas. 289; Robinson v. Mcdlarmld, 87 N. C. 643.
38. Davie v. Wynn, 80 Ga. 673, 6 S. E. 183; Craycroft v. Craycroft, 6 Harr. & J. (Md.) 54; Trenton Trust & Safe Deposit Co. v. Sibbitts, 62 N. J. Eq. 131, 49 Atl. 530; Olney v. Bates, 3 Drew, 319.
39. Rudolph v. Rudolph, 207 111. 266, 99 Am. St. Rep. 211; In re Nicholson, 115 Iowa, 493, 91 Am. St. Rep. 175; Moses v. Allen, 81 Me. 268, 17 Atl. 66; Moore v. Weaver, 16 Gray (Mass.) 305; Howland v. Slade, 155 Mass.
415, 29 N. E. 631; Strong v. Smith, 84 Mich. 567, 48 N. W. 183; Jamison's Executors v. Hay, 46 Mo. 546; Wooley v. Paxson, 46 Ohio St. 307; In re Bradley's Estate, 166 Pa. 300, 31 Atl. 96; Moore v. Dimond, 5 R. I. 121; Missionary Society v. Pell, 14 R. I. 456; Jones v. Hunt, 96 Tenn. 369.
40. Billingsley v. Tongue, 9 Md. 575; Twitty v. Martin, 90 N. C. 643; Moss v. Helsley, 60 Tex. 426.
Narily does not provide that no lapse shall result by reason of the death of a devise or legatee, nor refer to the matter of lapse, but merely declares that in case of such death, the issue of the deceased devisee or legatee shall take in his place.
A devise or legacy to one who is dead at the time of the execution of the will is absolutely void,40 except in so far as the rule in this regard may have been changed by statute. Such a devise or legacy is sometimes referred to as lapsing,41 but the expression "lapse" would seem to be more properly confined to the case of a devise or legacy which fails by reason of some occurrence subsequent to the execution of the will. Statutes which provide who shall take in case the devisee or legatee dies before the testator have more usually been applied regardless of whether such death occurred before or after the execution of the will,42 though occasionally a different construction has been adopted.43 In the case of a devise to a class of persons, the question is, not of the construction of the statute, but rather of the construction of the language of the testator as showing his intention, and the adoption of a statute obviating the failure of a devise by reason of the death of the devisee is no reason for assuming that the testator meant to include within the class named the issue or heirs of a person who, had he been living would have been a member of the class, but who died before the execution of the will. This view
41. Baybank v. Brooks, 1 Bro. Ch. 84; Dildine v. Dildine, 32 N. J. Eq. 78.
42. Cheney v. Selman, 71 Ga. 384; Chenault v. Chenault, 10 Ky. L. Rep. 840, 9 S. W. 775, 88 Ky. 83; Nutter v. Vickery, 64 Me. 490; Bray v. Pullen, 84 Me. 185, 24 Atl. 811; Guitar v. Gordon, 17 Mo. 408; Jamison v. Hay, 46 Mo. 546; Pimel v. Betjemann, 183
N. Y. 194, 2 L. R. A. (N. S.) 580, 5 Ann. Cas. 239; Mintner's Appeal, 40 Pa. St. 11; Wildberger v. Cheek's Ex'rs, 94 Va. 517, 27 S. E. 441.
43. Billingsley v. Tongue, 9 Md. 575; Lindsay v. Pleasants, 39 N. C. 320; Almy v. Jones, 17 R. I. 265, 12 L. R. A. 414; Suber v. Nash. 84 S. C. 12, 65 S. E. 947; has been adopted in the majority of the jurisdictions in which the question has arisen, including some in which the applicability of the statute to the case of an individual donee who is dead at the time of the execution of the will is fully recognized.44
- Effect of residuary clause. One result of the theory that a devise of land was a present conveyance of the land, and of the rule that a will did not pass after-acquired land,44a was that a residuary devise of land, however general in its terms, was in its nature specific, as operating only on such land as the testator owned at the time of executing the will and did not devise to another person, and was equivalent to a devise of such land by name or specific description. Consequently, although a devisee of specific land in the will died before testator, causing a "lapse" of the devise, the land could not pass under the residuary devise, but descended to the heir.45 A different view has, in one or two cases, been taken as to a devise which was originally void, as distinguished from one which lapsed, it being held that the property included therein would pass under a residuary clause, on the theory that the devise being a nullity from the beginning, the property must be regarded as part of the residuum.46
44. Davie v. Wynn, 80 Ga. 673, 6 S. E. 183; In re Nicholson, 115 Iowa, 493, 91 Am. St. Rep. 175, 88 N. W. 1064; Howiand v. Slade, 155 Mass. 415, 29 N. E. 631; Pimel v. Betjemann, 183 N. Y. 194, 2 L. R. A. (N. S.) 580, 5 Ann. Cas. 239; In re Harrison, 202 Pa. St. 331, 51 Atl. 976. Contra, Nutter v. Vickery, 64 Me. 490; Moses v. Allen, 81 Me. 268, 17 Atl. 66; Guitar v. Gordon, 17 Mo. 408; Jameson v. Hays, 46 Mo. 546.
44a. Ante, Sec. 466, note 6.
45. Williams, Real Prop, 251,
1 Jarman, Wills 609; Johnson v. Holifield, 82 Ala. 123, 2 So. 753; Deford v. Deford, 36 Md. 168; Prescott v. Prescott, 7 Mete. (Mass.) 141; Kip v. Van Cortland, 7 Hill (N. Y.) 340; Holton v. Jones, 133 N. C. 399; Williams v. Neff, 52 Pa. St. 326: Stonestreet v. Doyle, 75 Va. 356, 40 Am. Rep. 731.
46. Doe, Lessee of Stewart, v. Sheffield, 13 East, 526, 534; Doe d. Ferguson v. Roe, 1 Har. (Del.) 524, 528. That no such distinction between void and lapsed devises exists, see 1 Jarman, Wills,
The rule that a residuary devise will not operate upon land included in a devise which has lapsed or has otherwise failed has been changed in England by the provision of the Wills Act that, unless a contrary intention appears from the will, real estate comprised in any void or lapsed devise shall be included in the residuary devise.47 There is a substantially similar provision in a number of states in this country.48 The operation of such a statute is, however, much restricted by the statutes previously referred to, naming persons to take in case of the death of the devisee named.
Even in the absence of a statute expressly making the residuary devise operative upon land included in a lapsed devise, the courts of a number of states have held that, since the passage of the statutes making a will pass after-acquired realty, the reason for treating the residuary devise as a specific provision no longer exists, and that consequently it covers all land included in a devise which has lapsed or become void.49 In some states, however, a different view has been taken, it being held that such a statute as to after-acquired property does not cause land included in a lapsed devise to pass under the residuary clause.50