48 Mass. 141 | Mass. | 1843
The first question is, whether the legacy given to the testator’s daughter Hannah lapsed by her death before the death of the testator, or vested, by the limitation over, in the testator’s grandchildren. And we think it very clear, that the legacy vested in the grandchildren, on the death of the testator, by the limitation over to them after the death of the first named legatee. The general rule is, that if a legatee die before the testator, the legacy is lapsed, and sinks into the residuum of the testator’s personal estate. But the rule does not extend to a legacy given over, after the death of the first legatee; for in such case the legatee in remainder is entitled to have it immediately. Such a limitation in remainder of a legacy, or of personal property, is clearly valid according to all the authorities. Toller on Executors, (4th ed.) 304. Bac. Ab. Legacies, E. 1. 1 Roper on Leg. (1st Amer. ed.) 333, 334, 394. 2 Pick. 472. The gift of the remainder to the grandchildren vested the whole legacy in them, as fully as if they had been expressly substituted in the room of e first legatee, in case of her death before the death of the tesiator. This must have been the intention of the testator, and there is no rule of law to prevent its taking effect accordingly.
But this exception to the general rule as to lapsed legacies is not applicable to the legacy of $100, given to the testator’s daughter Hannah, and to the other legacies now in controversy. There is no limitation over of these legacies ; and as Hannah and Martha Ann died before the testator, the legacies to them lapsed, and fell into the residue of the testator’s estate. And the same general rule will apply to the remainder to Martha Ann of the legacy of $400, given to John Prescott for life, if any part of the said legacy should remain at his death. So, also, the legacy to John S. Prescott, given upon condition, falls into the residue of the estate; the same having become forfeited and void by the non-performance of the condition.
The only remaining question is, who are entitled to the. residue of the estate, after payment of the specific legacies. The rule is, that lapsed legacies of personal estate pass to the residuary legatee, if any there be, and if not, to the next of kin. This rule, by the common law, does not apply to lapsed devises