The Surrogate.
The testator died March 17, 1855: By his will, he bequeathed twenty thousand dollars in trust for his niece, Jane Ann Fowler; and by a codicil, “ in lieu and instead of $11,500, part of the $20,000” given in the will, he substituted the devise of a house and lot. It is contended that a mortgage of five thousand dollars upon the devised premises should be paid out of the personal estate. My opinion does not agree with this view. The provision of the Revised Statutes that mortgages are not a charge upon the general estate, but the devisee must take the land cum onere, is never disturbed unless by some clear and express direction in the will. The testamentary instrument, in the present instance, contains, on that subject, nothing more than a general provision that “ all the debts and sums of money” which the testator should owe at the time of his death, were to be paid by the executors. That is merely the usual direction as to the payment of debts, and shows no signs of an intention to modify the statutory rule. The devisee cannot, therefore, have either the principal, or the interest in arrear at the time of Mr. Reed’s decease, paid out of his estate. The land devised must bear its own burdens.
The residuary clause of the will, under consideration, is as follows: “As to all the rest, residue and remainder of my estate, of whatsoever nature, to be converted into cash, out and out, as hereinbefore directed, real and personal, I order and direct that the same, when so converted into cash, be divided by my executors into two equal parts or shares; and one of the said equal parts or shares of the said residue of my estate, I give and bequeath unto my said sister, Mrs. Ann Henderson, for her use and benefit, for and during the term of her natural life; and upon her decease, I give and bequeath the said one equal half part or share of the said residue of my estate unto the said John Henderson and Jane Ann Henderson, children of my said sister, Mrs. Ann Henderson, to be equally divided between them, share and share alike, and to their respective issue, such issue taking the share to which the parent, if living, would have been entitled; but in case *331either the said John Henderson or Jane Ann Henderson should die before their mother, without leaving lawful issue living, then the survivor to take the part or share of the one so dying.” Mrs. Henderson and her son John both died before the testator—the former in 1850, and the latter in 1853, without issue. The point arises whether the bequest or any portion of it has lapsed. The gift is of a life estate to the mother, with remainder to her two children. The children were to take, as tenants in common, “ share and share alike,” and not as joint tenants. The general rule, that by the death of a legatee before the testator, his interest under the will lapses, relates only to the interest of the party so dying, and where there are other interests grafted or limited upon that of the deceased legatee, they do not necessarily fail. Ordinarily, so long as the event upon which the testator has made his bounty contingent takes place, it would seem to be indifferent whether it occur in the testator’s lifetime or after his death, provided the party designed to be benefited be living. Where a life tenant dies before the testator, but the party entitled in remainder survives him, the death of the life tenant only extinguishes the life estate, and the remainder man is let in to the immediate right to the gift the moment the will takes effect. (Mowatt vs. Caxow, 7 Paige Ch., 328" court="None" date_filed="1838-12-18" href="https://app.midpage.ai/document/mowatt-v-carow-5548386?utm_source=webapp" opinion_id="5548386">7 Paige, 328.) The extinction of the first interest carved out of the estate only accelerates the right of the second taker. I am clear, therefore, that if both Mrs. Henderson’s children had been living at the death of Mr. Heed, they would have been entitled to their respective shares of half the residue. One of them, however, died before the testator, and his share lapsed, unless we can find some provision reaching this contingency, and giving over the share to some other person; in which case, the limitation over would be good, notwithstanding the event on which it depended occurred before the testator’s decease. The residuary clause gives this remainder to the two children, “ to be equally divided between them, share and share alike, and to their respective issue, such issue taking the share to which the parent, if living, would have been entitled.” But *332John died without issue, so the provision for issue does not apply. “ But,” the residuary,clause proceeds, “in case either the said John Henderson or Jane Ann Henderson should die before their mother, without leaving lawful issue living, then the survivor to take the part or share of the one so dying.” Here are two conditions: John died “ without leaving lawful issue living,” and that condition is fulfilled; but he did not die “ before his mother,” and that condition is not fulfilled. The sister now claims John’s share as “ survivor,” on an event or contingency different from the one named in the will— that is, the testator declared she should take John’s share if he died before his mother, and she claims John’s share when he died after his mother. This cannot be. The will is not so written. It is possible, indeed I think probable, that if the testator had contemplated the state of facts which has occurred, he would have provided for it, in the way this claim of survivorship supposes; but the court cannot adopt a rule of construction on conjecture, or against the plain import of terms. A will, clearly expressed, must receive the interpretation which the words compel, and cases or events not contemplated cannot be aided by judicial interposition—for that would be making a will, not construing one. Again, there is no rule better settled than that any conditional limitation over of a legacy, upon some specified event, condition, or circumstance, takes effect only upon the occurrence of the precise event specified. One or two cases will illustrate this view. In Humberstone vs. Stanton, (1 Vesey & Beames, R., 385), there was a gift to the testator’s son, Joseph, on the completion of his apprenticeship, but if he died before, the legacy was limited over to other beneficiaries. Joseph completed his apprenticeship and then died; and Sir William Grant decided that the substituted limitation was disappointed, the event of death after completing the apprenticeship not being a satisfaction of the condition of death before that time. In Doo vs. Brabant, 3 Bro. C. C., 393, a legacy was given in trust for Sarah Counsell, until she attained the age of twenty-one, and then to her absolutely; *333but in case she died under twenty one, leaving children, then in trust for them. Sarah arrived at majority, married, and died before the testatrix, leaving children, and it was held that the children did not take, the condition applying to to death under and not over twenty-one. Lord Kenyon said: “ If this event had occurred to the testatrix, most probably she would have provided for it, and given the money to the children; but, as she has not done so, we cannot make a will for her.” In Williams vs. Jones, (1 Russell C. R., 517), there was a bequest to Thomas Williams, if he should be living at the death of the testator’s wife, and if not, then to his son, Thomas Playfair Williams. Thomas Williams was living at the death of the testator’s wife, and Lord Gifford decided that the limitation to his son could not therefore take effect, and the father having died before the testator, the legacy lapsed.
The principle of these cases, that by the death of a legatee before the testator the bequest lapses, and that a gift over can only take effect upon the contingency designated in the will, is well recognized in the law as elementary doctrine. I have cited authorities mainly to show the application of the rule by other Judges. It is ordinarily supposed that a lapse defeats the testator’s intention. In one sense it certainly does, for the design of benefiting the legatee personally is utterly defeated by his death. The law proceeds on the assumption that all bequests are intended for the individual named, and for none other; and if he be dead when the testator dies, the gift falls, and no one can take in his stead, unless the contingency has been provided for. I am therefore of opinion, that the share of John Henderson in one half of the residue of this estate, lapsed by reason of his decease before the testator, and that his sister is not entitled to it by survivorship, because the event on which the will declares the survivor should take, never occurred. The testator lived several years after the death of Mrs. Henderson and her son. He knew of their decease, and I am bound to presume he knew the law on this subject, and was satisfied it should take *334its course. The gift of the other half of the residue of his estate to his niece, Mrs. Norman, also lapsed in his lifetime, by reason of her death; and the reasonable presumption is, that he was cognizant of the effect of these circumstances, and was content that the lapsed legacies should enure to the benefit of his next of kin, who stood as near to him as the claimant. In any event, that is the effect of the rule of law which it is my duty to apply; and there must be sentence of distribution of three fourths of the estate among the four nieces of the testator, his nearest of kin, per capita.