11. The same rule of construction is applied, where the payment of a legacy is

postponed.

12. Gift to one or heirs, &c., held generally to prevent a lapse.

13. A legacy by way of trust will not lapse by the death of the trustee.

14. A legacy depending upon testamentary appointment may lapse, the same as any other.

15. Bequest depending upon contingency may lapse.

16. How legacies to the uses of the will of another may lapsc.

17. Survivorship saves lapse among joint tenants, but not among tenants in common.

18. Husband and wife take differently under wills, from any other two persons.

19. Devise or bequest to a class will not lapse so long as one of the class survives.

20. Bequest to executors will generally go to the survivors.

21. It will make no difference at what time the class is ascertained, as to the sur

vivors taking.

22. How far the devise of the legal estate vests the fee absolutely in the trustee.

23. An estate will not lapse because an intervening estate upon which it depends

lapses.

24. How land devised subject to a charge which fails is to be disposed of.

25. Whether the benefit of the estate failing shall go to the devisee of the residue or the heir.

n. 56. Cases where the failure has operated for the benefit of the heir.

26. Cases where the failure has operated for the benefit of the devisee of the residue.

27. By the present English statute such lapse operates for the benefit of the residnary devisee.

28. Legacies charged on land will lapse if the legatee die before time of payment, unless deferred to accommodate estate. Quære?

29. Held, in Pennsylvania, that legacies given the one, and in case of his death to another, if the first die in life of testator, the alternative gift takes effect.

30. Question of survivorship among joint legatees discussed by Mr. Justice Metcalf. 31. Several American cases stated.

32. The legatee in remainder takes a vested interest at the decease of the testator. 33. Contingent legacies lapse by death of legatec before the contingency.

34. Where there is no residuary bequest, lapsed legacies go to the next of kin.

§ 50. 1. THE general rule is well settled, that where the legatee dies before the testator, the legacy will lapse.1 And there

1 Swinb. pt. 7, § 23, pl. 1; 2 Wms. Exrs. 1084. Swinburne defines the rule, "If the legatary die before the day (of the death of the testator), the legacy is void neither can the executors or administrators of the legatary demand the same." This is obvious, from the fact that the will does not become Operative until the death of the testator.

are some cases where the legatee survives the testator, that the legacy will nevertheless fail to become operative, on the ground of some contingency upon which the vesting of the legacy is made to depend. Where the legacy never vests, it is properly regarded as having lapsed, whether the event occur before or after the death of the testator.

2. The most numerous class of lapsed legacies is undoubtedly that where the legatee predeceases the testator; but questions of more difficulty often arise, under the head of legacies lapsed before the period of vesting occurs, notwithstanding the legatee survive the testator. But if the legatee predecease the testator, the legacy will lapse, notwithstanding the will contain the words heirs, executors, administrators, &c., as these words are prima facie to be regarded only as words of limitation, calculated to describe the nature of the estate given to the legatee or devisee, and not as used with any express purpose of preventing a lapse in the bequest, where the legatee should happen to die before the testator.2

3. Where the testator and the legatee, in contemplation of law, die precisely at the same time, there is no vesting of the legacy. There was, by some of the early writers, and in some of the cases upon the point, considerable discussion in regard to presumptions of survivorship arising out of the facts and circumstances of the case, such as sex, age, and general health. But it seems to be now settled, that by the law of England the question of survivorship, in cases of this character, is matter of evidence, and depends upon the presumptions of fact, and that in the absence of all evidence upon the point, there is no conclusion of law upon the subject. A case of considerable importance occurred in the English courts, so lately as the year

* Ante, §§ 46, 47. In these sections we have incidentally illustrated the point whether the words "heir," "executor," "next of kin," &c., are used by way of limitation of the estate, or to create a new and distinct estate in the representative of the ancestor or legatee.

1854, where the subject was extensively discussed, both at the Rolls and in the Court of Chancery Appeal.3

Underwood v. Wing, 19 Beav. 439; s. c. 4 DeG., M. & G. 633; Ante, § 1, n. 1. In some of the Continental countries in Europe, as in France for instance, there are positive enactments, by which the question of survivorship in certain contingencies is determined as a presumption of law.

This case was heard before the Lord Chancellor, Lord Cranworth, and two common-law judges, whom his lordship had desired to sit with him, Mr. Justice Wightman and Mr. Baron Martin. In the opinion of the learned judges, it is said, "The question of survivorship is the subject of evidence to be produced before the tribunal which is to decide upon it, and which is to determine it, as any other fact. . . . . We think there is no evidence to show whether the husband or wife was the survivor. There may be surmise, and speculation, and guess, but we think there is no evidence." In this case it was proved that Mr. Underwood, the testator, was a robust, healthy man, and a good swimmer, and that his wife was in a weak state of health at the time of the catastrophe; and the medical witnesses, among whom was the eminent author of the Medical Jurisprudence, Dr. Taylor, concurred in the opinion that the comparative health and the sex of the two persons, as well as the fact that the testator was a good swimmer, rendered it almost certain that he would have survived his wife. But, on the other hand, two medical witnesses testified that no medical witness could form or give any opinion of any value in regard to which of the two persons, the testator or his wife, would survive. A man of seventy would be just as likely to survive a younger man, and a woman just as likely to survive a man, and a feeble or sickly man a strong or healthy man, as the contrary. Thus the scientific evidence, standing at contraries, as it always does, the court adopted the view of that class of the medical testimony which seemed most to conform to their own views of the probabilities in the case.

The case was argued very much at length by very eminent counsel, and the court concurred in the advice of the common-law judges. The Lord Chancellor said: "I entirely concur in what was said by the learned judges on that subject, that there is no evidence whatever which would justify any one in coming" to the conclusion that the wife did not survive," because in this case, as in all others where a person has to show that a particular state of things has arisen, the evidence must be positive; and it is not sufficient to show a variety of circumstances from which it may be very difficult to form an opinion one way or the other. I think it impossible to carry this evidence before us to anything like proof, as to whether Mr. or Mrs. Underwood was the survivior. I give the medical gentlemen entire credit for speaking scientifically, and as they believe

The testator bequeathed personal estate to his wife, and in the event of her dying during his life, to A B, upon certain trusts, which failed; and after that he bequeathed his whole property to J. W. The testator and his wife were shipwrecked, and drowned at sea, one wave sweeping both of them into the sea, after which they were neither of them seen. The question arose between the next of kin and J. W., who claimed under the limitations of the will. It was held, that the burden of proof that the husband survived was upon J. W., inasmuch as his title depended upon the survivorship; and that for this purpose it was requisite to produce positive evidence to enable the court to pronounce in favor of the survivorship; and that no such evidence having been adduced, the next of kin was entitled to the estate; and finally, that the next of kin, as to personalty, and the heir at law, as to realty, stand in the same position, and the person claiming against either must make out his title.

From all which the rule seems now clearly established, not that in such cases the two or more persons, in regard to which a question of survivorship arises, will be presumed to have deceased at precisely the same time, which, as was said by Lord Cranworth, "is hardly within the range of imagination," 4 but

quite accurately, (though I do not think that they themselves are very confident upon the subject,) but to take what they say, calculating and reasoning a priori; for that is all it comes to, as to which of two persons may have breathed a few seconds the longer at the bottom of the sea, as establishing the fact, seems to me to be quite misunderstanding human testimony. . . . . I am utterly unconvinced that they can tell us which of these two persons died first, even supposing them to have been taken and quietly submerged to the bottom of the sea.”

The Master of the Rolls, Sir John Romilly, said: "With the exception of Sillick v. Booth, 1 Y. & C., C. C. 117," in which the point does not appear to have been decided, "all the reported cases concur in this, that in such a state of things it is impossible for the court to come to any conclusion as to which died first." Mason v. Mason, 1 Mer. 308; Taylor v. Diplock, 2 Phillim. 261; Satterthwaite v. Powell, 1 Curt. 705. See ante, § 1, n. 1.

Underwood v. Wing, 4 DeG., M. & G. 633, 661. Many other cases may

that, it failing to be shown by any satisfactory evidence which died the first, the decision must be against the party upon whom rests the burden of proof.

4. We have had occasion to state the rule upon this general question, and to adduce the general range of the authorities in another place, from which it will appear that unless the testator provides that a legacy shall go to the heir, or next of kin, or personal representative, in some such form as to clearly indicate that those terms are used to designate the persons described by them, in order to have them take directly under the will, as purchasers, the legacy will lapse, the general presumption being that these terms of succession are used to mark the extent of the interest thus intended to be conveyed to the legatee or devisee, and are therefore words of limitation merely.

5. The same rule has generally been extended to cases where the testator has given a legacy by way of remitting a debt due from the legatee to the testator. But there are many cases where the intention to remit a debt is so fully and clearly expressed, as to operate to cancel it, even where the testator survives the debtor. And a provision for creditors in proportion to their debts, is of a mixed character; partly of bounty and partly of obligation, and the will must be read as to some

be consulted upon this point, to which we have not deemed it important to refer, regarding the decision of the English courts upon the very point as far more satisfactory than any analysis which we could give. Selwyn in re, 3 Hagg. 748; Wright v. Sarmuda, in note, 2 Phillim. 266; Wright v. Netherwood, 2 Salk. in n. 593; The King v. Dr. Hay, 1 Wm. Bl. 640; Broughton v. Randall, Cro. Eliz. 502; Colvin v. Procurator-General, 1 Hagg. 92; Hitchcock v. Beardsley, West's Cas. t. Hard. 445.

Ante, § 46.

Maitland v. Adair, 3 Vesey, 231; Elliot v. Davenport, 1 P. Wms. 83; Toplis v. Baker, 2 Cox, 118; Sibthorp v. Moxom, 3 Atk. 580; Izon v. Butler, 2 Price, 34; Attorney-General v. Holbrook, 3 Y. & J. 114; s. c. 12 Price, 407; South v. Williams, 12 Sim. 566.

South v. Williams, 12 Sim. 566.