Lapse. Tenants in common. all personal property acquired by the testator between the time of making his will and his decease will pass under it. If any legacy should lapse by the death of the legatee in the testator's lifetime, or should fail from being contrary to law, it will fall into the residue, and belong to the residuary legatee. And a legacy will lapse by the death of the legatee in the testator's lifetime, although given to the legatee, his executors, administrators and assigns (z), for these words are merely inserted in analogy to the limitation of real estate to a man and his Joint tenants. heirs. If a bequest be made to two or more as joint tenants, and one of them die in the lifetime of the testator, his share will not lapse, but will survive to the others (a). But if the bequest be to two or more in common, and one of them die in the testator's lifetime, his share will lapse (b); unless the bequest be made to a class, as to the children of A. in equal shares, in which case all who answer that description at the testator's decease (c), and also (if the period of distribution be postponed by the will) all who come into being before such period (d), will be entitled to divide the bequest amongst them. It is, however, provided by the recent act for the amendment of the laws with respect to wills, that where any person, being a child or other issue of the testator, to whom any personal estate shall be bequeathed for any interest not determinable at or before the death of such person, shall die in the testator's lifetime leaving issue, and any such issue shall be living at the death of the testator, such bequest shall not lapse, Bequest to a class. Legacies to children. (z) Elliott v. Davenport, 1 P. Wms. 83. (a) Morley v. Bird, 3 Ves. 628, 631. (b) Bagwell v. Dry, 1 P. Wms. 700; Page v. Page, 2 P. Wms. 489; Barber v. Barber, 3 My. & Craig, 688; Bain v. Lescher, 11 Sim. 397. (c) Viner v. Francis, 2 Cox, 190; 2 Jarm. Wills, 74; 126, 2nd ed.; 142, 3rd ed.; Lee v. Pain, 4 Hare, 250. (d) Ayton v. Ayton, 1 Cox, 327; 2 Jarm. Wills, 75; 127, 2nd ed.; 143, 3rd ed. but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will (e). The effect of this provision is curious. If the legatee had died immediately after the testator, leaving a will, it is evident that the estate bequeathed to him would have passed under his will. It has been decided therefore, that the will of the legatee shall, after his death, operate on the estate bequeathed to him in the same manner as if he had been living (f). This provision has been held to apply to a testamentary appointment under a general power of appointment (g), but to be inapplicable to a testamentary appointment under a power to appoint amongst the testator's children (h); and it does not extend to gifts to children or issue as a class, and not individually (i). of executor to the residue. If there were no residuary legatee, the residue of the Former right testator's personal estate, after payment of debts and legacies, formerly belonged to the executor for his own benefit, unless a contrary intention appeared from his being left executor in trust (k), or from his having a legacy left him for his trouble (1), or from other circumstances (m). But by a modern statute (n), it is en- Modern acted, that when any person shall die, having by will or codicil appointed any executor, such executor shall be deemed by courts of equity to be a trustee for the person or persons (if any) who would be entitled to the (e) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 33. (f) Johnson v. Johnson, 3 Hare, 157. (g) Eccles v. Cheyne, 2 Kay & J. 676. (h) Griffiths v. Gale, 12 Sim. 354. (i) Browne v. Hammond, John son, 210. (k) Pring v. Pring, 2 Vern. 99; Bagwell v. Dry, 1 P. Wms. 700. (1) Rachfield v. Careless, 2 P. Wms. 158. (m) Mullen v. Bowman, 1 Coll. 197. (n) Stat. 11 Geo. IV. & 1 Will. IV. c. 40. statute. estate under the Statute of Distributions, in respect of any residue not expressly disposed of, unless it shall appear by the will or any codicil thereto (o), that the person so appointed executor was intended to take such residue beneficially. The Statute of Distributions is that under which the personal estate of any one dying intestate is distributed between his widow and next of kin. An account of this statute will be found in the next chapter. (0) Love v. Gaze, 8 Beav. 472. CHAPTER IV. OF INTESTACY. ecclesiastical courts over tate persons. THE ecclesiastical courts until recently had jurisdiction Jurisdiction of not only over the wills of testators, but also over the goods of persons dying intestate. This jurisdiction, goods of intesthough of long standing, appears to have been at first gradually acquired. In early times the clergy, being possessed of almost all the learning, appear to have been the principal framers of wills. The power they thus acquired was exercised for their own benefit, every man being expected, on making his will, after bequeathing to his lord his heriot, in the next place to remember the church (a). If, however, a man should have died intestate, without opportunity of making this provision, the distribution of his goods devolved on the church, together with his friends, the lord first having taken his heriot (b). The wife and the children were entitled to their shares; and that part of the goods which the intestate had power to dispose of by his will (called the portion of the deceased) was applied by the church in pios usus. This application to pious uses Pious uses. appears to have been as follows: in the first place, the bequest, which it was to be presumed the intestate would have made to the church, was retained, and the residue was then disposed of in paying the debts of the deceased, and distributed amongst his wife and children, his parents and their relatives. That this was the case appears from the complaints which were made by the clergy of those days, of the interference of the tem (a) Glanville, lib. 7, c. 5; Bract. 60 a; Fleta, lib. 2, c. 57. (b) Bract. 60 b; Fleta, ubi supra. Administrator. poral lords in cases of intestacy, whereby the distribution of the effects in the manner pointed out was prevented (c). The clergy themselves, however, do not appear to have been always free from blame; for they are accused of having frequently taken the whole of the intestate's portion to themselves, making no distribution, or at least an undue one, amongst the creditors and relatives of the deceased (d); and in order to remedy this evil, it was enacted in the reign of Edward I., by one of the very few statutes then passed relating to personal estate (e), that the ordinary should be bound to answer the debts of an intestate, so far as his goods would extend, in the same manner as the executors would have been bounden if he had made a testament. The right of the creditor was thus clothed with a remedy; for, under this statute, an action at law might be brought by the creditor against the ordinary for the payment of his debt (f); but the right of the relatives to the surplus still remained undefined. The duty of administering intestates' effects was not, as may be supposed, usually performed by the bishops in person. For this purpose they usually appointed an administrator; but, as personal property rose in importance, it became desirable that this administrator should not be considered as the mere agent of the bishop, but should himself have a locus standi in the king's courts, It was accordingly enacted by a statute of the reign of Edward III. (g) that where a man died intestate the (c) Matthew Paris, 951, Additamenta, 201, 204, 209 (Wats's ed. London, 1640); Constitutions of Boniface, Constitutiones Provinciales, 20, at the end of Lyndewood's Provinciale (Oxon. 1679), recited also in a Constitution of Archbishop Stratford (Lynd. Prov. lib. 3, tit. 13). See Gent. Mag. New Series, vol. ii. 355, 474. See (d) Fleta, lib. 2, c. 57. (f) 1 Ro. Abr. 906; Bac. Abr. tit. Executors and Administrators (E). (g) 31 Edw. III. c. 11. |