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 .
As a consequence of the "ambulatory" nature of a will, which prevents its operation until the death of the testator, the death of a devisee or legatee during the testator's lifetime will, in the absence of a statute to the contrary, render the gift absolutely void.26 And so a devise or legacy to a corporation may lapse or become void by the dissolution of the corporation before testator's death.27 The testator may, however, make a substitutionary gift of that particular property in case the other gift fails, owing to the death of the beneficiary or for other reasons, and this will be carried out by the courts.28 The fact that the gift is in terms to one "and his heirs" does not, of itself, show any intention to make a substitutionary gift to the heirs, since this is a word merely of limitation, and not of purchase.29 In some cases, however, the use of the words "and heirs" has been construed as constituting a substitutional gift to the heirs,30 and this is the effect usually given to a provision for one "or his heirs."31
22. Griffith v. Diffenderffer, 50 Md. 466; Sullivan v. Foley, 112 Mich. 1, 70 N. W. 322; Shailer v. Bumstead, 99 Mass. 112; Wad-dington v. Buzby, 45 N. J. Eq. 173, 14 Am. St. Rep. 706, 16 Atl. 690; Turner v. Butler, 253 Mo. 202, 161 S. W. 765.
23. Parfiitt v. Lawless, L. R. 2 Prob. & Div. 462; Bancroft v. Otis, 91 Ala. 279, 24 Am. St. Rep. 904, 8 So. 286; Lockridge v. Brown, 184 Ala. 106, 63 So. 524; Carter v. Dixon, 69 Ga. 82; Pil-strand v. Swedish Methodist Church, 275 111. 46, 113 N. E. 958; Denning v. Butcher, 91 Iowa, 425, 59 N. W. 69; In re Smith's Will, 95 N. Y. 516; Bigelow, Wills, 89.
24. Connor v. Stanley, 72 Cal. 556, 1 Am. St. Rep. 84; Kirby's Appeal, 91 Conn. 40, 98 Atl. 349; Meek v. Perry, 36 Miss. 190, Wendling v. Bowden, 252 Mo.
647, 161 S. W. 774; Carroll v. Hause, 48 N. J. . Eq. 269, 27 Am. St. Rep. 469; Miller v. Miller, 187 Pa. 572, 41 Atl. 277; Hartman v. Strickler, 82 Va. 225; 1 Woerner, Administration, Sec. 32.
25. Barry v. Butlin, 1 Curt. Ecc. 637; Coghill v. Kennedy, 119 Ala. 641, 24 So. 459; Richmond's Appeal, 59 Conn. 226, 21 Am. St. Rep. 85; Bush v. Delano, 113 Mich. 321, 71 N. W. 628; Yardley v. Cuthbertson, 108 Pa. St. 395, 56 Am. Rep. 218; In re Barney's Will, 70 Vt. 352, 40 Atl. 1027; Montague v. Allan's Ex'r, 78 Va. 592, 49 Am. Rep. 384; Bigelow, Wills 87, 89,
26. 1 Jarman, Wills, 307; 2 Woerner, Administration, Sec. 434.
27. Page, Wills, Sec. 740; Merrill v. Hayden, 86 Me. 133, 29 Atl. 949; Crum v. Hliss, 47 Conn.. 592.
In most of the states there is at the present day a statutory provision naming a class of persons who may take in case of the death of the beneficiary during the lifetime of the testator. In many states it is provided that a devise or bequest to a child or other descendant of the testator shall, in case of the death of the devisee or legatee before the testator, pass to the issue or occasionally the heirs of such devisee or lega28. 1 Jarman, Wills, 308; Page, Wills, Sec. 741; Wilde v. Bell, 86 Conn. 610, 87 Atl. 8; Gilmor's Estate, 154 Pa. St. 523, 35 Am. St. Rep. 855, 26 Atl. 614; Rivers v. Rivers, 36 S. C. 302, 15 S. E. 137. See ante, Sec. 26.
29. Gibbons v. Ward, 115 Ark. 184, 171 S. W. 90; Maxwell v. Featherston, 83 Ind. 339; In re Wells, 113 N. Y. 396, 10 Am. St. Rep. 137; Kimball v. Story, 108
Mass. 382; Hand v. Marcy, 28 N. J. Eq. 59.
30. Gilmor's Estate, 154 Pa. St. 523, 35 Am. St. Rep. 855, 26 Atl. 614; Gittings v. Mcdermott, 2 Mylne & K. 69, 73; 2 Woerner, Administration, Sec. 434.
31. 2 Woerner, Administration, Sec.Sec. 417, 434; Hand v. Marcy, 28 N. J. Eq. 59; O'rourke v. Beard, 151 Mass. 9, 23 N. E. 576. See Keniston v. Adams, 80 Me. 290, 14 Atl. 203.
Tee.32 In some, the same provision is made in favor of the issue of any devisee or legatee who is a relation of the testator, while, in others, the issue of any devisee or legatee dying before the testator takes the gift, unless a contrary intention appears.33
In the case of a devise of land to two or more individuals, to take as tenants in common and not as joint tenants,34 if one of them dies before testator, the devise will, at common law, lapse as to his share, in the absence of controlling language to the contrary, while the other donee or donees will take the same interest as if such death had not occurred.35 On the other hand, in the case of a devise to members of a class, such as children or nephews, if one who would otherwise be a member of the class dies before the testator, his share does not lapse, even at common law, but the property is divided between the members of the class, as ascertained at the time of testator's death, or at such later date as may be indicated in the will.36 And even though the class is to be ascertained as of a date prior to testator's death, if a member of the class, ascertained as of that date, subsequently dies before the testator, his share, it seems, does not lapse, but the survivors take the whole.37 In the case of such a gift to a class, the survivors take the whole, by reason of a construction of the language used in the will as indicating an intention that the beneficiaries of the devise shall be those members of the class who survive the testator, and it is accordingly somewhat difficult to see the applicability to such a case of a statute intended to prevent lapse. It has accordingly been decided, in several states, that the statutory provisions above referred to, enabling the issue of a deceased devisee or legatee to take in the latter's place, do not apply to a devise or legacy to a class,38 but in a greater number these statutes have been held to apply to such a case, in the absence of a showing of a different intention, with the result that the share which would have gone to the deceased member of the class passes to his issue.39 These decisions appear ordinarily to be based on a presumption that the testator, in drafting the will, had in mind the statute in question and intended by the naming of a class, to include issue of a deceased member thereof. It is also to be observed that in the states in which this view has been adopted, the statute ordi37. See 1 Jarman, Wills 312.