23 A. 302 | R.I. | 1885
The question now before us for decision arises under the will of Samuel W. Church, late of Bristol, deceased. The will, after several specific devises *139 and bequests for the benefit of the wife and daughters of the testator, concludes with the following residuary clause, to wit: "I give, devise, and bequeath all the rest, residue, and remainder of my estate, real, personal, and mixed, wherever and however situate, of which I am now possessed, or may die seized or possessed, unto my sons, Samuel W. Church, Jun., Thomas Church, Benjamin Church, Hezekiah W. Church, James C. Church, and Charles Henry Church, to have and to hold the same, with all the privileges and appurtenances to the same belonging, to them, the said Samuel W., Jun., Thomas, Benjamin, Hezekiah, James, and Charles, their heirs and assigns, forever." One of the sons died without issue before the testator. The question is, whether the share of real estate which he would have taken under the residuary clause, if he had survived the testator, descended as intestate estate to the heirs at law of the testator, or passed under the will to the residuary devisees.
We think there can be no doubt that under our statute, Pub. Stat. R.I. cap 172, § 1,1 the devise to the sons, so far as it applies to real estate, was a devise to them as tenants in common, there being no words manifestly showing an intent to have them take as joint tenants. The devise, therefore, if it is to be construed as a devise to the sons individually, was in effect a devise of one undivided sixth part of the residuary real estate to each son, and consequently, when one son died without issue before the testator, the part devised to him was as if it had never been devised to him; it lapsed, and, there being no words to carry it elsewhere under the will, it necessarily descended as intestate estate to the heirs at law. 1 Jarman on Wills, 5th Amer. ed. 622; 3 Ib. 17; Page v. Page, 2 P. Wms. 489; Sykes
v. Sykes, L.R. 4 Eq. 200; In re Wood's Will, 29 Beav. 236;Owen v. Owen, 1 Atk. 494; Norman v. Frazer, 3 Hare, 84;Lombard v. Boyden, 5 Allen, 249. The cases cited to show that, since the statute authorizing the devise of after-acquired real estate, the distinction between lapsed devises and lapsed legacies no longer holds, and that now a lapsed devise liked a lapsed legacy will fall into the residue, are not in point, for the devise here was residuary in its inception, and therefore could *140
not fall into the residue. This would be so if the estate were personal, for, though the general rule is that a general residuary bequest carries lapsed or void legacies, it does not include any part of the residue itself which fails. Bagwell v.Dry, 1 P. Wms. 700; Page v. Page, 2 P. Wms. 489;Garthwaite's Executor v. Lewis,
Our decision is, that the share of the real estate given to the deceased son descended at the death of the testator to his heirs at law as intestate estate.