if living, if not living; in addition; 7 in case of the death; 68 income, net income; 6 in lieu of her dower and statutory right in all property belonging to me at my death; 70 issue; 71 lands; 72 leave; 73 legacy or distributive share; 74 my farm, consisting of about ninety-five acres, in Filmore county; 75 my real estate; 76 nearest male heir, nearest relative, and the like; 77 necessary; none of my children, or their heirs, shall have any right on my residue property until the death of my beloved so of all my estate; now; 82 81 one-half of all I own; our

84 out of my estate; personal effects; 85 proceeds of the property; pro rata; 88 provided; 89 real estate; revert; 1 securities; 2 share; 93 share and share alike; ** subject to the payment, etc.; the grounds or lot on which the same is situat

3

ed; 96 the real estate of which I shall die seized; 97 the real estate I now own; 98 then; 99 thereon; things; this disposition of my property is subject to and not intended to interfere with, the right of dower or other legal right of my wife in and to my said property or any of the same; to use and occupy the same for and during his natural life; * until the minority of the youngest child shall cease; until they shall have homes of their own; until the youngest child shall become of lawful age; use and occupy; whatever remains, remaining property, if there is anything left, whatever of said estate remains unexpended, if anything should remain, that may be left at the death, etc.;' youngest child.10

LEGACIES AND DEVISES

IN GENERAL

367. Definitions-A legacy or bequest is a gift of personalty by will. A devise is a gift of realty by will. The words "legacy," "bequest," "bequeath," "devise" are often used indiscriminately in wills and they should be construed as applying to either real or personal property, or both, according to the obvious intention of the testator.12

368. What may be devised or bequeathed-All forms of property which pass under the statutes of descent and distribution in case of intestacy or which are assignable may be devised or bequeathed.13 Equitable titles are subject to devise and if not specifically devised form part of the residuary estate. They are covered by a residuary clause in the words, "all the rest and residue of my estate, real, personal and mixed which I now possess or which may hereafter be acquired by me." 14 An equitable interest has been held to pass under the words "real estate." A crop yet to be grown may be bequeathed.16 A vest

99 15

96 In re Gotzian's Estate, 34 Minn. 159, 24 N. W. 920.

97 Case v. Young, 3 Minn. 209 (140).
98 Case v. Young, 3 Minn. 209 (140).
99 People v. Camp, 286 Ill. 511, 122 N.

E. 43; Ann. Cas. 1913B, 320.

1 Rong v. Haller, 109 Minn. 191, 199, 123 N. W. 471.

2 Ann. Cas. 1915A, 23; L. R. A. 1918A, 222.

3 Redford v. Redford, 45 Minn. 48, 47 N. W. 308.

4 Farmers' Nat. Bank v. Moran, 30 Minn. 165, 14 N. W. 805.

5 Simpson v. Cook, 24 Minn. 180, 186. 6 Lohlker v. Lohlker, 112 Minn. 273, 277, 127 N. W. 1122.

7 Simpson v. Cook, 24 Minn. 180, 185.

8 Farmers' Nat. Bank v. Moran, 30 Minn. 165, 14 N. W. 805.

9 In re Oertle's Estate, 34 Minn. 173, 24 N. W. 924; Sherman v. Lewis, 44 Minn. 107, 46 N. W. 318.

10 Simpson v. Cook, 24 Minn. 180, 186. 11 State v. Willrich, 72 Minn. 165, 75 N. W. 123; Baldwin v. Zien, 117 Minn. 178, 184, 134 N. W. 498.

12 Baldwin v. Zien, 117 Minn. 178, 184, 134 N. W. 498; 18 A. & E. Ency. of Law (2 ed.) 710; 40 Cyc. 994; 4 A. L. R. 246. 13 18 A. & E. Ency. of Law (2 ed.) 734; 30 Id. 614; 40 Cyc. 1043; 28 R. C. L. 287.

14 Mayer v. American S. & T. Co., 222 U. S. 295.

15 Morgan v. Joslyn, 91 Minn. 60, 97 N. W. 449.

16 Rock v. Zimmerman, 25 S. D. 237, 126 N. W. 265. ·

ed remainder may be devised.17 A contingent remainder may be devised, at least where the contingency is one of event and not of person.18 Where a contingent remainder is devised and the person who is to take is certain, if such person dies before the happening of the contingency, his representatives or heirs take his interest.19 An owner of a cemetery lot may devise it to any one of his relatives who may survive him, or to the cemetery association, in trust, for the use and benefit of any person or persons designated in the will. But no such lot shall be affected by any testamentary devise unless the same be specifically mentioned in the will.20

369. To deceased person-It is the general rule that a testamentary gift to a person who is dead when the will is made is void, regardless of whether the testator knew that he was dead. In other words such a gift lapses.21

370. To murderer of testator-A murderer cannot take under the will of his victim.22

371. To mistress or paramour-A will may be made in favor of a mistress or paramour.

23

372. To illegitimate children-A will may be made in favor of existing illegitimate children of the testator.24 A gift to future illegitimate children is generally held void on grounds of public policy, but there are some exceptions to the general rule.25

373. To aliens-Aliens may take under a will the same as citizens.26 374. To subscribing witnesses of will-A beneficial devise or legacy made in a will to a subscribing witness thereto shall be void, unless there be two other competent subscribing witnesses who are not bene

18 G. S. 1913, § 6685; Mohn v. Mohn, 148 Iowa 288, 126 N. W. 1127. See Tiffany, Real Property, § 129; 21 L. R. A. (N. S.) 121.

19 Rosenzwog v. Gould, 131 Md. 209, 101 Atl. 665.

20 G. S. 1913, § 6289, as amended by Laws 1915, c. 233, § 2.

21 In re Matthews' Estate, 176 Cal. 576, 169 Pac. 233; Manke v. Miller, 220 N. Y. 225, 115 N. E. 462; 18 A. & E. Ency. of Law (2 ed.) 758; 40 Cyc. 1052; 28 R. C. L. 336. See § 444.

22 Laws 1917, c. 353 ($ 97 supra); Wellner v. Eckstein, 105 Minn. 444, 455, 117 N. W. 830. See 30 Hary. L. Rev.

622; Ann. Cas. 1916A, 382 (manslaughter); 28 R. C. L. 75.

23 In re Mondorf's Will, 110 N. Y. 450, 18 N. E. 256; In re Powers, 162 N. Y. S. 828. See Dusbiber v. Melville, 178 Mich. 168, 116 N. W. 208; 18 A. & E. Ency, of Law (2 ed.) 736; 40 Cyc. 1059; Ann. Cas. 1913C, 143.

24 In re Sanders' Estate, 126 Wis. 660, 105 N. W. 1064; 3 A. & E. Ency. of Law (2 ed.) 893; 18 Id. 736; 40 Cyc. 1058; 28 R. C. L. 75.

25 In re Homer, 115 L. T. R. 703; 30 Harv. L. Rev. 652; 40 Cyc. 1058.

26 See G. S. 1913, § 6696; 2 A. & E. Ency. of Law (2 ed.) 72; 2 C. J. 1054, 1069; Woerner, Am. Law of Adm. (2 ed.) § 19; 31 L. R. A. 180; L. R. A. 1915E, 327; 11 A. L. R. 162 (right of alien enemy to take under will).

ficiaries thereunder. But if such witness would have been entitled to any share of the testator's estate in the absence of a will, then so much of the share that would have descended or have been distributed to him. as will not exceed the value of the devise or bequest shall be assigned to him by the probate court in its decree of distribution from the part of the testator's estate included in such void bequest.27 This statute does not render void a devise or bequest to a husband or wife of a subscribing witness.28 It does not render void a devise or bequest to a religious order of which a subscribing witness is a member.29 It does not render devisees or legatees incompetent as witnesses.30 It has no application to witnesses on the probate of a will who are not subscribing witnesses.31

375. To counties-The question whether a county has capacity to take a bequest of money to the credit of its general revenue fund has been raised but not determined.32

376. When legacies vest-Contingent and vested legacies-The law favors the immediate vesting of legacies. A legacy will not be construed as contingent unless it is clearly so. Unless a contrary intention is manifested by the will, if futurity is annexed to the substance of the gift, the vesting of title is suspended, but if the gift is absolute, and the time of payment only is postponed, the gift is not suspended, but vests at once. If payment is postponed merely for the benefit or convenience of the estate or to let in some other interest the legacy is vested.33 Courts are especially inclined to construe a legacy as vested when it is to a child or grandchild of the testator. The disposition of the courts to construe a gift as vested is especially strong in the case of a gift of the residue, where intestacy would otherwise result. A

27 G. S. 1913, § 7254. See 18 A. & E. Ency. of Law (2 ed.) 738; 40 Cyc. 1060. 28 In re Holt's Will, 56 Minn. 33, 57 N. W. 219.

29 Will v. Sisters, Order of St. Benedict, 67 Minn. 335, 69 N. W. 1090.

30 In re Wiese's Estate, 98 Neb. 463, 153 N. W. 556; White v. Bower, 56 Colo. 575, 136 Pac. 1053; In re Hoppe's Will, 102 Wis. 54, 78 N. W. 183; Williams v. Way, 135 Ga. 103, 68 S. E. 1023.

31 Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73; Strickland v. Smith, 131 Ark. 350, 198 S. W. 690.

32 Rice County v. Scott, 88 Minn. 386, 93 N. W. 109.

33 Fox v. Hicks, 81 Minn. 197, 83 N. W. 538; Davis v. Hancock, 95 Minn. 340, 104 N. W. 299; Savela v. Erickson, 138 Minn. 93, 163 N. W. 1029; In re Bell's Will, 147 Minn. C2, 179 N. W. 650;

35

In re Freeman's Estate (Minn.) 187 N. W. 411; Fulton Trust Co. v. Phillips, 218 N. Y. 573, 113 N. E. 558; In re Hitchcock's Will, 222 N. Y. 57, 118 N. E. 220; Bryant v. Plummer, 111 Me. 511, 90 Atl. 171; Weller v. Kolb, 128 Md. 221, 97 Atl. 542; Benner v. Mauer, 133 Wis. 325, 113 N. W. 663; In re Marshall's Estate (Pa.) 105 Atl. 63; 18 A. & E. Ency. of Law (2 ed.) 731; 30 Id. 762; 40 Cyc. 1648-1664; L. R. A. 1918E, 1097; 10 Am. St. Rep. 471.

34 Fox v. Hicks, 81 Minn. 197, 83 N. W. 538; In re Marshall's Estate (Pa.) 105 Atl. 63.

35 Fulton Trust Co. v. Phillips, 218 N. Y. 573, 113 N. E. 558; Blaine v. Dow, 111 Me. 480, 89 N. E. 1126; 30 A. & E. Ency. of Law (2 ed.) 793; 40 Cyc. 1660; L. R. A. 1918E, 1102.

legacy payable on the death of a third person is vested and not contingent.30 A legacy to a nephew of the testator, contingent upon the death of a daughter of the testator without issue after she received her distributive share of the estate, has been held vested upon the death of the testator.37 Where a gift is made entirely dependent upon the beneficiary attaining a certain age it is contingent, as where the gift is to one at, or from and after, a certain age, or if, when, or provided, or in case he reaches a certain age, or on or upon reaching a certain age. But if the gift is to one and its payment is postponed until he attains a certain age it is vested, as where it is payable at a certain age, or if or when the beneficiary reaches the specified age, or upon his reaching that age. Wills vary so much in their language that no hard and fast rules can be laid down in this connection. The intention of the testator controls. The gift will be construed as vested unless it is manifestly contingent.38 A legacy payable at a specified time in the future is not contingent and vests immediately, unless a contrary intention is clearly manifested by the will.39 Where a specific legacy is set apart for a minor legatee, to be given at a specified time in the future, it is vested; and the fund designated therein should be segregated from the estate, and, upon the death of the legatee before its receipt, descends to his heirs in case of intestacy. A will provided that the executor should set apart interest bearing securities to produce an annuity for the wife of the testator, the residue thereof upon her death to go to the residuary legatees. The title to the securities, with power of disposition, was in the executors. Held, that one of the residuary legatees had a vested interest in the fund from the death of the testator.41 Where a gift is to be severed instanter from the general estate for the benefit of the legatee, and in the meantime the interest thereof is to be paid to him, it indicates the testator's intention that he shall at all events have the principal, and is to wait only for the payment until the day fixed.12 A legacy payable on the happening of certain contingencies held to vest on the death of the testator and to pass to his trustee in bankruptcy. Where there

40

86 Bryant v. Plummer, 111 Me. 511, 90 Atl. 171; Higgins v. Beck, 116 Me. 127, 100 Atl. 553; 30 A. & E. Ency. of Law (2 ed.) 775; 40 Cyc. 1657; L. R. A. 1918E, 1097. See Watkins v. Bigelow,

93 Minn. 361, 101 N. W. 497.
37 Watkins v. Bigelow, 93 Minn. 361,
101 N. W. 497.

38 Fox v. Hicks, 81 Minn. 197, 83 N. W. 538; State v. Probate Court, 100 Minn. 192, 110 N. W. 865; Cammann v. Bailey, 210 N. Y. 19, 103 N. E. 824; In re Yates' Estate, 170 Cal. 254, 149 Pac. 555; 30 A. & E. Ency. of Law (2 ed.) 776; 40 Cyc. 1652; L. R. A. 1915C, 1012; 10 Am. St. Rep. 470.

43

39 Brookhouse v. Pray, 92 Minn. 448, 100 N. W. 235; Johrden v. Pond, 126 Minn. 247, 148 N. W. 112; In re Hitchcock's Will, 222 N. Y. 57, 118 N. E. 220; 30 A. & E. Ency. of Law (2 ed.) 770; 40 Cyc. 1657.

40 Fox v. Hicks, 81 Minn. 197, 83 N. W. 538.

41 Merriam v. Wagener, 74 Minn. 215, 77 N. W. 44.

42 Wessborg v. Merrill, 195 Mich. 556, 162 N. W. 102.

43 Watkins v. Bigelow, 93 Minn. 361, 101 N. W. 497.