SECTION 5.-RESIDUARY DEVISES AND BEQUESTS”

TINDALL'S EX'RS v. TINDALL.

(Court of Errors and Appeals of New Jersey, 1873. 24 N. J. Eq. 512.) Bill in chancery by William Tindall against John Manning and Edward Paxton, executors, etc., of Aaron Tindall, deceased, for one eighth part of the sum of $5,000, a lapsed legacy to testator's wife. Testator, after the above bequest to his wife, and several other legacies, bequeathed as follows: "I give and bequeath whatever of my property shall remain after payment of the above, and due settlement of all my business, to my two friends, John H. Manning and Edward Paxton." He appointed Manning and Paxton executors. Testator left no issue, but had eight brothers and sisters. Two of these (of whom the complainant is one) survived him. The other six died before him. All left children living at the death of the testator. The defendant Paxton is one of these children. The case was argued before the chancellor upon bill and answer, who found for plaintiff, and defendants appealed.

DALRIMPLE, J. The question in this case is whether a certain lapsed legacy of $5,000, given in and by the will of Aaron Tindall, deceased, falls into the residuum of the estate and goes to the residuary legatees, or remains undisposed of, and is to be distributed among the next of kin of the testator. The will, after directing the payment of debts and funeral expenses, and the sale and disposition of all testator's property, real and personal, which he might own at the time of his decease, and the collection of the moneys due him, gives to his wife, Ann, in lieu of her right of dower at common law, the said legacy of $5,000. After certain general legacies and bequests, the residuum of the estate is disposed of as follows: "I give and bequeath whatever of my property shall remain after payment of the above, and due settlement of all my business, to my two friends, John H. Manning, to him, his heirs and assigns, and to Edward Paxton, to him, his heirs and assigns." The residuary legatees are appointed executors. The testator having survived his wife, the legacy of $5,000 to her lapsed. This suit is brought by one of the next of kin of the testator, to recover a share of the legacy which has thus lapsed, and his right to recover is put upon the ground that, as to the $5,000 in question, the testator died intestate.

The rule applicable to the question to be solved, as stated in the textbooks, as well as in many adjudged cases, is that the residuary legatee

89 On the abatement of residuary devises and bequests, see note 12 to Arm strong's Appeal, ante, p. 659.

is entitled as well to a residue caused by a lapsed legacy, or an invalid or illegal disposition, as to what remains after payment of debts and legacies. The only exception to the rule is that, where the words used show. an intention on the part of the testator to exclude from the operation of the residuary clause certain portions of the estate, such intention, as gathered from the whole will, must not be defeated. Or the rule embracing the exception, as stated in some of the books, is that the residuary legatee must be a legatee of the residue generally, and not partially so only. The rule is so firmly established that citation of authority in its support is hardly necessary. I will, however, refer to the following text-books and adjudged cases: 2 Rop. Leg. 1672; 2 Williams, Ex'rs, 1313; Easum v. Appleford, 5 Mylne & C. 56; King v. Woodhull, 3 Edw. Ch. (N. Y.) 86; James v. James, 4 Paige (N. Y.) 117; Banks v. Phelan, 4 Barb. (N. Y.) 90; Cambridge v. Rous, 8 Ves. 25; 2 Redf. Wills, 442.

The learned chancellor, in the court below, held that the case now before us came within the exception to the general rule, because the estate given was that which should remain after payment of the legacies before given. But I cannot see that this form of expression in any wise limits or restricts the extent of the gift. The clause would have had precisely the same meaning and effect if it had been, in terms, of the residue of the estate. All that the testator could give to his residuary legatees was what remained of his estate after payment of his particular debts and legacies. The legal effect is precisely the same, whether the one form or the other is adopted.

The chancellor bases his opinion upon what he conceives to be the rule as laid down in 2 Williams, Ex'rs, p. 1315, and in 2 Rop. Leg. pp. 1679, 1682. He also cites the case of Attorney General v. Johnstone, Amb. 577. Exactly what Mr. Williams states the true rule to be is as follows: "The testator may, by the terms of the bequest, narrow the title of the residuary legatee, so as to exclude him from lapsed legacies; as when it appears to be the intention of the testator that the residuary legatee should have only what remained after the payment of the legacies." Mr. Roper states the exception to the general rule in the following language: "When the legatee is not generally, but only partially, residuary legatee, he will not, in that character, be entitled to any benefit from lapses, though very special words are required to take a bequest of the residue out of the general rule; as, first, when it appears the testator intended the residuary legatee should have only what remained after the payment of legacies."

If these authors intend to say (which, to my mind, is by no means clear) that when the clause of the will giving the residuum of the estate contains, or has annexed to it, the words, "after payment of debts and legacies," the settled rule of construction is that lapsed legacies are not embraced, but that as to them the testator is to be held as having died intestate, I cannot yield my assent to the proposition. The

cases cited by the authors referred to do not support such a doctrine, while there are several well-considered cases to the contrary.

Vice Chancellor Wood, in the case of Bernard v. Minshull, Johns. Eng. Ch. 276, 299, says: "All you have to consider is whether the property is excepted, in order to take it away, under all circumstances and for all purposes, from the person to whom the rest of the property is given, or whether it is excepted merely for the purpose of giving it to some one else. If the latter, and the gift to some one else fails, the donees of all except this property are entitled to take the whole." In Roberts v. Cooke, 16 Ves. 451, it was held that a general disposition of personal estate, not thereinbefore specifically disposed of, comprehended specific legacies lapsed; the word "specifically" being held to mean "particularly." In the case of King v. Woodhull, 3 Edw. Ch. (N. Y.) 79, 84, the form of the bequest was: "The residue and remainder of my estate, if any there shall be, after the payment of the said $1,000 to the missionary society, I give and bequeath to the children of my niece." And it was held broad enough to embrace as well the legacy to the missionary society, which it was claimed was void, as a bequest to a mission school, which was held to be ineffectual. Vice Chancellor McCoun in his opinion in that case says: "The words, 'after payment of debts and legacies,' or after payment of legacies specified or recapitulated in the residuary clause itself, are not restrictive of the bequest to any particular or partial residue; but the bequest, after all, is general of the remainder, and may be so understood without doing violence to the expressions of the will. Where the residuary clause is thus worded, the legatee is as much a general legatee of the residuum of the estate as if such words were not used." In Shanley v. Baker, 4 Ves. 732, the words were, all the rest and residue of my estate and effects "not by me hereinbefore particularly disposed of;" and they were held to embrace a leasehold property given as a legacy, which, by the statutes of mortmain, was void. To the same effect is the case of Brown v. Higgs, 4 Ves. 709. The case of Attorney General v. Johnstone, Amb. 577, was not decided upon the ground that the residuary bequest contained words of import similar to those now under consideration, for it did not; but the conclusion reached in that case was that, from the whole context of the will, it was evident that the testator did not intend that the void legacy should, in any event, become a part of the residuum of his estate. The syllabus of the case, which very well shows the point decided, is: "Residue, under particular circumstances, will not take in lapsed legacies;" the residue being given as a small remainder of about £100, and the lapsed legacies amounting to £20,000.

I have not been able to see anything in the residuary clause, when taken by itself, or in the context of this will now before us, which will authorize the result sought by the complainant. It seems to me quite evident that the testator did not intend to die intestate as to any part of his property. He gave the legacy of $5,000 to his wife, to be accepted

at her option, in lieu of her right of dower in his estate. If she should decline to accept it on these terms, or if, by reason of her death in the lifetime of her husband, it lapsed, the will of the testator, as ascertained from the well-settled meaning of the words he has used, was that the lapsed or rejected legacy should go into and form part of the residue of his estate.

For the reasons above stated, the decree below must be reversed, and the complainant's bill dismissed, but without costs in this court or the court below.10

DOE ex dem. FERGUSON et al. v. HEDGES et al.

MCKNIGHT'S LESSEE et al. v. SAME.

(Superior Court of Delaware, 1835. 1 Har. 524.)

36

CLAYTON, C. J. Mary James being seised in fee of the premises in question by her will duly executed, dated 30th July, 1831, gave and devised to "Saint Andrew's Church in Wilmington, all a certain lot of land therein described, to have and to hold the use of the said house and lot to the said church forever; but not to be sold on any account whatever." And after bequeathing sundry legacies, there is this clause in her will: "Item, I give, bequeath and devise to William Ball and Mary Ball, children of James Ball, deceased; and to John McKnight all the residue of my estate real and personal of whatever kind it may be." The lessors of the plaintiff are the residuary devisees.

It is not contended in this case that the devise to Saint Andrew's Church, passes any estate in the premises in question to the church; but it is admitted that the devise is void by the laws of this state. That question was decided at the last May Term in Kent, in State, Use of Wiltbank et al., v. Bates. The question here is, who take? the heirs at law of Mrs. James, or her residuary devisees?

Since the case of Doe, on the Demise of Morris, v. Underdown, Willes, 293, that question seems to be completely settled in England. In that case the distinction, as far as we can ascertain, was first established between a lapsed devise, and a void devise. The principles laid down by the Chief Justice in that case were these: that the intent of the testator ought always to be taken as things stood at the making of his will, and is not to be collected from subsequent accidents which the testator could not then foresee; and that when a testator in his will has given away all his estate and interest in certain lands, so that if he were to die immediately nothing remains undisposed of, he cannot intend to give anything in these lands to the residuary devisee. This latter rule would govern all cases of lapsed devises; for if the

40 On residuary clauses, see 4 Prob. Rep. Ann. 491, note.

41 The statement of facts is omitted.

testator were to die immediately upon the making of the will there would be nothing undisposed of, and the devisee would take; but if the devisee were to die between the making of the will, and the death of the testator, the devise would lapse and the heir at law would necessarily take in preference to the residuary devisee, for it was not undisposed of at the making of the will, but the devise was rendered inoperative by a subsequent accident-the death of the devisee. This is not so in the case of a void devise; for there at the making of the will nothing passes, nothing is disposed of, and the residuary devisee under the clause "all the residue of my estate" takes, and not the heir at law. In Doe, Lessee of Stewart, v. Sheffield, 13 East, 526, this is considered as the settled law; and in Doe, on the Demise of Wells and Others, v. Scott and Another, 3 Maule & Sel. 300, Lord Ellenborough in delivering the judgment of the court recognizes the authority of the two preceding cases as "admitted law" on the subject.

We are not unaware of the American decisions on this subject in 6 Conn. 293, 16 Am. Dec. 58,42 and in Lingan v. Carroll, 3 Har. & McH. (Md.) 333; but we prefer following the authorities which we have cited. The heirs at law do not appear to have been objects of the testator's bounty; they are nowhere mentioned in her will. This circumstance is not relied on in forming our judgment, but merely to show that the testatrix did not desire that her heirs at law should derive any benefit from her estate. Our decision is founded upon the authorities which we have cited, and upon the principles established by them. Our opinion is therefore for the residuary devisees, and judgment is accordingly given for the plaintiffs in the case of the Lessee of McKnight and Others v. Hedges; and in the other case, lessee of J. Ferguson and others, the heirs at law of Mary James, against the same defendant, that judgment be given for the defendant.43

BLIGHT v. HARTNOLL.

(Supreme Court of Judicature, Court of Appeal, 1883. L. R. 23 Ch. Div. 218.) JESSEL, M. R.** It is well to see what the law is upon this subject before we attempt to construe this will. I take it that the law as to residuary personalty is now substantially the same as the law relating to real estate, with respect to which the statute 1 Vict. c. 26, § 25,

42 Greene v. Dennis. But see Giddings v. Giddings, 65 Conn. 149, 32 Atl 334, 48 Am. St. Rep. 192 (1894).

43 Under modern statutes the heirs do not take void devises, any more than lapsed, if the residuary clause is broad enough to embrace them. Patterson v. Swallow, 44 Pa. 487 (1863); Gallavan v. Gallavan, 57 App. Div. 320, 68 N. Y. Supp. 30 (1901). See section XXV of the Wills Act in the Appendix, post, p. 765.

44 The statement of facts, the concurring opinion of Lindley, L. T., and the opinion of Fry, J., in the court below are omitted. Fry, J., decided that the wharf fell into the residue.