Gray's Estate
23 A. 205
Pa.
1892
Check Treatment

Opinion by

Mb. Justice Mitchell,

That a legacy which fails, either by lapse or because void ah initio goes into the residue, is conceded; but in England there is a firmly settled exception, which is thus expressed by Sir William Gbant in Leake v. Robinson, 2 Mer. 392: “ Everything which is ill given by the will does fall into the residue ; and it must be a very peculiar ease indeed in which there can be at once a residuary clause and a partial intestacy, unless some part of the residue itself he ill given.” And accordingly, it was held in Skrymsher v. Northcote, 1 Swanst. 566, that a lapsed portion of a residuary bequest went to the next of kin, and not to tbe other residuary legatees, on the ground that the latter were given specific portions of the residuum, and could not take more by the intent of the will, and receiving the bequest in common and not jointly, there could be no increase by survivorship. The rule thus established does not commend itself to sound reasoning, and is a sacrifice of the settled presumption that a testator does not mean to die intestate as to any portion of his estate, and also of his plain actual intent, shown in the appointment of general residuary legatees, that his next of kin shall not participate in the distribution at all. The rule is in fact a concession to the set policy of English law, nowhere more severely asserted than in chan*75eery, to keep the devolution of property in the regular channels, to the heir and the next of kin, whenever it can be done.

If the question were new in this state, speaking for myself I should not hesitate to reject the English rule as wrong in principle and subversive of the great canon of construction, the carrying out of the intent of the testator. But the question is not new. It arose in Craighead v. Given, 10 S. & R. 351, and this court applied the English rule without question. Again, in Woolmer’s Est., 3 Wh. 477, it was taken as settled, and expressly sanctioned by Kennedy, J., in the opinion of the court, though the strict point decided was only that a void legacy to a corporation that did not exist, went to the residuary legatee. In Reed’s Ap., 82 Pa. 428, it was distinctly applied, there being residuary devisees among whom were the testator’s widow and daughter, and, the daughter’s share having lapsed, this court held that the widow was entitled to one third of such share, as a case of partial intestacy. And in Massey’s Ap., 88 Pa. 470, the common-law rules as to the devolution of property described in lapsed devises and bequests, were authoritatively asserted to be in force ; and Neff’s Ap., 52 Pa. 326, was explained and approved, because it “ came within the exception stated in Leake v. Robinson, of some part of the residue itself ill given.” The same view was taken by the orphans’ court of Allegheny in Henderson’s Estate, referred to by the learned judge below, and by the court of common pleas No. 4 of Philadelphia, in Everman v. Everman, 15 W. N. 417. After this general consensus of judicial opinion for nearly three quarters of a century, we must regard the rule as settled.

It is true that all the foregoing cases were of lapsed and not-of void legacies, except Woolmer’s Estate, where this particular point only arose obiter, and perhaps Neff’s Appeal, where the will was republished after the death of one of the residuary legatees, and where the devise to him was therefore not merely-lapsed, but void at the date of republication. It is also true that in Patterson v. Swallow, 44 Pa. 487, it was distinctly held that, since the wills Act of 1833, a lapsed or void devise does not go to the heir, but to the residuary devisee. But the foundation of that case, so far as it rests upon any supposed effect of the Act of 1833, has been definitely taken away by the *76opinion in Massey’s Appeal, already cited. The English rule makes no distinction between the disposition of a lapsed and a void residuary bequest, and there is none in principle. If, through dislike of the rule, we should make such a distinction, it would be one without a real difference. It is better to let the rule stand as it was left by our predecessors, than to pare it away by super-subtle distinctions, while professing to accept it as settled.

The only remaining question in the case is whether the Act of twenty-sixth April, 1855, introduced a new rule; and notwithstanding the very earnest and ingenious argument for appellant, the view of the learned judge below is unanswerable, that the statute is remedial as to the execution of wills containing charitable devises or bequests, but as to distribution, where such devises are void, it is simply declaratory. Section 11 of the Act, after prescribing the requisites of a valid deed or will for such purposes, proceeds: “ And all dispositions of property contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law.” This is merely the devolution over, to emphasize the invalidity of the disposition which fails to comply with the requirements of the statute. It cannot be held to be anything more. To treat it as a new order of distribution, prescribing who shall take in such cases and in what order, is not only to give the statute an operation manifestly beyond and foreign to its intent, but involves us at once in inextricable confusion of legal ideas. If, as is argued, “ the words ‘ according to law ’ are to determine who ‘ according to law ’ is the residuary legatee or devisee, or next of kin, or heir,” and the statute makes a new law of distribution among such persons, then we must hold that the party standing in the first of the relations named must take to the exclusion of the others; so that if there be a residuary legatee he must take though the “ disposition of property contrary ” to the statute, be a devise of land or even a conveyance by indenture; and if it was an indenture and the grantor died intestate within the month the next of kin being prior in the list of distributees, would take the land to the exclusion of the heir. The statute will not stand the strain of such a construction. It is a statute of wills and conveyances, not of distribution of decedents’ estates, testate or intestate; *77and the expression “go to the residuary legatee or devisee, next of kin, or heirs, according to law,” means to one or the other, as the case may be under the existing law of distribution. No other construction is entertainable.

Decree affirmed. C.