Appoint ment "as share." Thus, an appointment in favour of an object "as and and for her for her share" does not exclude that object from sharing in the unappointed part, though the sum left unappointed is such as would give all the objects equal shares. Wilson v. Piggott, 2 Ves. jun. 351; Wombwell v. Hanrott, 14 B. 143; Walmsley v. Vaughan, 1 De G. & J. 114. Share in lieu of claims. And it seems a direction that the appointed share is in lieu of all claims and demands of the donee to or for her original share in the trust fund will not exclude him from the unappointed part. Foster v. Cautley, 6 D. M. & G. 55. On the other hand, an appointment to one object, coupled with a declaration that the donee of the power wishes the fund equally divided, may amount to an appointment of the rest of the fund to the other objects. Fortescue v. Gregor, 5 Ves. 553. And a direction for accruer which can only have a meaning on the supposition that the fund has been appointed in favour of other objects, may also amount to an appointment. Foster v. Cautley, 6 D. M. & G. 55. In the case of a deed, if the appointee is a party and a share is appointed to him in lieu of his share in the fund, the appointee cannot share in the unappointed part. Clune v. Apjohn, 17 Ir. Ch. 25; Armstrong v. Lynn, I. R. 9 Eq. 186. Under a gift to several persons as A. shall appoint with a gift in default of appointment to them equally, a direction to bring advances into hotchpot applies only to the unappointed portion of the fund. Brocklehurst v. Flint, 16 B. 100. CHAPTER XLVIII. INTERESTS UNDISPOSED OF. 601 LAPSE. PORTIONS of a testator's property may be undisposed, either because the disposition attempted by him has failed, or because no disposition has been attempted. of lapse. A devise or legacy, whether it be of a debt due to the Doctrine testator or not, lapses by the death of the devisee or legatee before the testator, or even before the date of the will. Elliott v. Davenport, 1 P. Wms. 83; 2 Vern. 581; Maybank v. Brooks, 1 B. C. C. 84. tion by Confirmation by codicil of a will containing a legacy to Confirmaa legatee, her executors and administrators, where the codicil. legatee has died since the date of the will, does not prevent a lapse or give the legacy to the executors of the legatee. Hutcheson v. Hammond, 3 B. C. C. 127; Maybank v. Brooks, 1 B. C. C. 83. tenants in common Where the gift is to several named persons as tenants Gift to in common, the shares of any who die before the testator lapse. Page v. Page, 2 P. Wms. 489; Peat v. Chapman, by name. 1 Ves. sen. 542. dead at Possibly, if one of the named persons is shown on the Person face of the will to be dead at the date of the will, the date of fund would be divisible among the others. Clemmans, 36 L. J. Ch. 171. Clarke v. So a devise by A. to the uses of B.'s will can only take will. Appointment in excess of fund. Gift to debtor. Legacies effect in favour of those who survive A. Culsha v. Cheese, 7 Ha. 245. The doctrine of lapse applies to a power of appointment exercised by will, and the appointee must survive the donee of the power in order to take. Duke of Marlborough v. Lord Godolphin, 2 Ves. sen. 61; Freeland v. Pearson, L. R. 3 Eq. 658; In re Susanni's Trusts, 47 L. J. Ch. 65. An appointment by will in accordance with a covenant is subject to the ordinary rule as to lapse. Re Brookman's Trust, 5 Ch. 182; see Jervis v. Wolferstan, 18 Eq. 18. If a testator appoints under a power sums exceeding the amount of the fund and one of the appointees predeceases him the other appointees are entitled to the benefit of the lapse. Eales v. Drake, 1 Ch. D. 217. A gift to a debtor of his debt, though the debt be given to him, his executors and administrators, with a direction to hand over the securities to him, is in effect a legacy, and lapses by the death of the debtor in the testator's lifetime. It is immaterial whether the debt is given or forgiven. Toplis v. Baker, 2 Cox, 118; Elliott v. Davenport, 1 P. Wms. 83; 2 Vern. 521; Maitland v. Adair, 3 Ves. 231; Izon v. Butler, 2 Pr. 34. Possibly, a general direction to hand over the security to be cancelled might release the debt, whether the debtor survives the testator or not. Sibthorp v. Moxom, 3 Atk. 580; 1 Ves. sen. 49; see South v. Williams, 12 Sim. 566. With regard to legacies to creditors of the testator in discharge of debts which have been released by the operadebts are tion of the bankruptcy laws or by lapse of time: barred. 1. A gift to the official assignee in bankruptcy in trust to pay debts will not fail as regards creditors who die in the testator's lifetime, though the debts are barred by the Statute of Limitations as well as discharged by a certifi cate in bankruptcy. In re Sowerby's Trusts, 2 K. & J 630; 7 D. M. & G. 429; Turner v. Martin, 5 W. R. 277; 3 Jur. N. S. 397. 2. Nor will the gift of a sum to be divided among creditors, though the debts may be barred by the Statute of Limitations, if they have not been released by the creditors. Williamson v. Naylor, 3 Y. & C. Ex. 208; Phillips v. Phillips, 3 Ha. 281. 3. On the other hand, if the gift is not through the medium of the assignee and the debts have been released or extinguished, the gift is mere bounty, and will fail as regards the creditors dying in the testator's lifetime: Coppin v. Coppin, 2 P. Wms. 295; but the authority of this case is very doubtful. And see Golds v. Greenfield, 2 Sm. & G. 476. declara A declaration that a legacy shall not lapse is not suffi- Effect of a cient to prevent lapse, unless it is clear that it is to go to tion the estate of the legatee in the event of his death. Picker- against lapse. ing v. Stamford, 3 Ves. 493; Johnson v. Johnson, 4 B. 318; Underwood v. Wing, 4 D. M. & G. 633; see Wilder's Trusts, 27 B. 418. But a gift to A. and his executors or administrators with a direction that the legacy is not to lapse has been held sufficient. Sibley v. Cook, 2 Atk. 572. On the other hand, in the case of a gift in similar terms, a direction that the legacy was to vest from the date of the will was held insufficient to prevent lapse. Browne v. Hope, 14 Eq. 343. of persons default of The interest of persons taking in default of appointment Interests does not fail by the death of the donee of the power to take in before the testator. Hardwick v. Thruston, 4 Russ. 380; appointEdwards v. Saloway, 2 Ph. 625; Nicholls v. Haviland, ment. 1 K. & J. 504; Kellett v. Kellett, I. R. 5 Eq. 298. of persons in remain Nor do the interests of those taking in remainder, Interests though they may be the next of kin of the tenant for life, unless the subsequent limitations are only a settle- der not affected by lapse of the life interest. or his executors will lapse. ment of the shares to which the legatees actually become entitled. Cases supra, and Meyer v. Townshend, 3 B. 443; In re Speakman; Unsworth v. Speakman, 4 Ch. D. 620 ; Stewart v. Jones, 3 De G. & J. 532; perhaps Baker v. Hanbury, 3 Russ. 340. Whether a It is clear that a gift to A. or his executors for the gift to A. benefit of his estate after a life interest, or where the payment is postponed, will fail by the death of A. before the testator: Bone v. Cook, M'Clel. 168; 13 Pr. 332; Corbyn v. French, 4 Ves. 418; Tidwell v. Ariel, 3 Mad. 403, where heirs was read as executors and administrators, Leach v. Leach, 35 B. 185. Charges will not This rule, however, does not apply where the gift is to A. or his heirs after a life interest, where heirs means next of kin, who take beneficially and not as mere representatives. In re Porter's Trusts, 4 K. & J. 188. But it would seem a direct gift to A. or his executors, if executors is construed in its literal sense, would not lapse by A.'s death before the testator. See Maxwell v. Maxwell, I. R. 2 Eq. 478; see, however, Aspinall v. Duckworth, 35 B. 307; and ante, pp. 286, 287. If there is a gift to A. charged with a sum payable to B., the legacy to B. does not lapse by the death of A. before the testator. Wigg v. Wigg, 1 Atk. 382; Hills subject to V. Wirley, 2 Atk. 605; Oke v. Heath, 1 Ves. sen. 134. fail by the death of the devisee the charge. Effect of sections 32 But the legacy would fail if the gift to A. is adeemed or revoked. Cowper v. Mantell, 22 B. 223. Now, by section 32 of the Wills Act, a devise of an and 33 of estate tail will not lapse if there are at the death of the testator any issue inheritable under the entail. the Wills Act on the doctrine of lapse. And, by section 33, a gift of real or personal property to a child, or other issue of the testator, will not lapse if any issue of the devisee or legatee survive the testator. The section applies to a gift to a child dead at the date of the will. Wisden v. Wisden, 2 Sm. & G. 396. |