expressio eorum quæ tacitè insunt: for the executors, &c. are by supposition of law named only to take in succession, and by way of representation, as an heir represents the ancestor in case of an inheritance. So where legacies were given to several persons to be paid by the trustees at the end of one whole year next after the testator's decease, or to their several and respective heirs: a legacy was held to have lapsed by the death of one of the legatees in the testator's lifetime; although it seems to have been thought, that if the direction had been that the Siking legacies should at the testator's death be paid to the the din of legatees, or their heirs, it might have been otherwise." Why melo So also where the directions of a will were, that in case of the death of any of the legatees before their legacies should become payable, the legacy of each of them dying should go to and be paid amongst his, her, or their children; and if no children, to his or her executors or administrators: the share of one who died without children in the lifetime of the testatrix was held to have lapsed." Nor is evidence admissible to show that the testator knew of the death of the legatee at the time of making his will.

2

The same rule in general takes place when the legacy operates by way of release of a debt. There has however been some contrariety of opinion upon this point. Where a woman gave and bequeathed to W. E. his executors, &c. the sum of 400/., which he owed her, and desired her executors not by any means to claim or meddle with the said 4007., but to

ก

Tidwell v. Ariel, 3 Mad. 403; and see Corbyn v. French, 4 Ves. 418.

b Bone v. Cooke, 13 Pri. 332. 1 M'Clel. 168.

с

Maybank v. Brooks, 1 Bro. 84. 2 Dick. 577.

deliver up the security into the hands of W. E. his executors, &c. and execute such releases and discharges as he should think fit; and W. E, died in the lifetime of the testatrix: Lord K. Cowper held it to be a lapsed legacy; while the Master of the Rolls was of a contrary opinion, and Lord Cowper himself admitted it to be a doubtful case. Again where a testatrix by will forgave her son-in-law R.C. a debt of 5007. due to her on bond, and desired her executor to deliver up the bond to be cancelled; and R. C. died in her lifetime, and his wife, (the daughter of the testatrix,) claimed the benefit of the legacy: Lord Hardwicke thought it hard to say, that because the son-in-law died in the testatrix's lifetime the daughter, who was so nearly related in blood, should lose all benefit; and decreed the bond to be delivered up to her. But his Lordship thought this also a doubtful case; and in a subsequent one in the Exchequer, where there was the following clause in a will, “I give to my kinsman N, D. the sum of 400%., which he owes me on mortgage of his estate in S., and I further order my executor to give him up all bonds owing from him to me, and which shall be found in my custody at the time of my decease, together with all interest due thereon;" and N. D. died in the lifetime of the testator: the Lord Chief Baron, in delivering the judgment of the Court, observed, that the main ground of the decision in Sibthorp v. Moxom was, that there was nothing in the will to confine the delivery of the bond to the person of the son-in-law, and therefore it was not ancillary

* Elliott v. Davenport, 1 P.W. 83. 2 Ver. 521.

b Sibthorp v. Moxom, 3 Atk. 580.

1 Wils. 178. 1 Ves. 49.

to the former bequest to him, but it amounted to a declaration that in all events the bond should be delivered up, and therefore of necessity operated for the benefit of the representative: that in the principal case the word was "give," not " forgive,”a and the direction for the delivery up of the bond was to N. D. personally, and there was no direction at all for the delivering up of the mortgage, so that the gift of the mortgage depended entirely on the first member of the devise; and he accordingly held it to be a lapsed legacy. So in a later case where a testator gave 2000l. to his brother, and added, Ι also return him his bond for 400l., with interest due thereon, which he owes me;" and the brother died in the testator's lifetime: Lord Loughborough thought it was distinctly a legacy to the brother, and there was no foundation for his executor, who was also a co-obligor, to have the bond delivered up.

66

A legacy, it is said, will lapse in spite of the declared intention of the testator. For if a man devises a real estate to J. S. and his heirs, and signifies his intention, that if J. S. die before him, it shall not lapse; yet unless he nominates another to take, the heir at law is not excluded: so in the devise of a personal legacy to A., the mere declaration of intention that it shall not lapse in case A. die before the

In Vesey's report of Sibthorp v. Moxom (ante 165) the words are "I give," not, "I forgive;" and Lord Hardwicke thought that had it been said in Elliott v.Davenport (ante165), I forgive my son such a debt, and the bond had been ordered to be delivered up by the executor to be cancelled, it had been held a dis

charge. Yet Lord C. B. Thomson said, he had always been at a loss to understand the distinction between giving and forgiving a debt. 2 Pri. 43.

b Toplis v. Baker, 2 Cox, 118. 1 Cox's P. W. 86. N. 2.. Izon v. Butler, 2 Pri. 34.

Maitland v. Adair, 3 Ves. 231.

testator is not sufficient to exclude the residuary legatee or next of kin."

But although neither the intention of the testator, nor the circumstance of the gift being made to the legatee, his executors, &c. is of itself sufficient to prevent a lapse, yet if both these concur it is different. Thus where a testatrix declared, that if any of her legatees died before their legacies were payable they should not be deemed lapsed legacies; and then, among others, gave to A. and to her executors or administrators 501.; and A. died in the lifetime of the testatrix: Lord Hardwicke decreed the legacy to her administrator.b

d

And the general rule that a legacy fails by the death of the legatee in the lifetime of the testator is subject to some limitations. If the legatee be merely a trustee for another, his death will not affect the interest of the cestui que trust. Hence it seems now settled, for it was at first held otherwise, that if an estate be devised or a legacy given to A. upon condition to pay an annuity or sum of money to B.; or if the words only amount to a constructive trust, as where a man bequeaths 100l. to A. and desires him. to give it, or any particular part of it, to B.; the bequest to B. does not lapse by the death of A.

a 3 Atk. 573. 3 Bro. 225. 2 Cox, 121. Mr.Belt in his edition of Brown, vol. i. 84. N., thinks it questionable whether the Court would now decide according to these dicta.

b Sibley v. Cook, 3 Atk. 572; and see 2 Cox, 121, Lampley v. Blower, ante 108. Bridge v. Abbot, 3 Bro. 224. Vaux v. Henderson, 1 Jac & W. 388.

Rose v. Rose, 17 Ves. 347. Van v. Clark, 1 Atk. 510. Lord Inchiquin v. French, 1 Cox, 1; and

see Att. Gen. v. Hickman, 2 Eq. Ab. 193. Moggridge v. Thackwell, antè 91. Brown v. Higgs, ante 7.

a See Birkhead v. Coward, 2 Ver. 115. 2 Freem. 107.

• Elliott v. Davenport, 2 Ver. 521. 1 P. W. 83. Wigg .Wigg, 1 Atk. 382. Oke v. Heath, 1 Ves. 135; and see Hills v. Wirley, 2 Atk. 605.

f Eales v. England, Pr. Ch. 200. 2 Ver. 466. Mason v. Limbury, cited Ambl. 4.

Again in a devise to A. for life, remainder to B., if A. dies in the testator's lifetime, B. takes immediately on the testator's death." So where there was a bequest of the residue in trust for the testator's sisters equally, &c. for their lives, and in case any of them should die leaving issue, the share to which she was entitled at or before the time of her decease to go to her children; and one of the sisters died in the lifetime of the testator: Lord Thurlow thought her children were entitled to this as an executory devise. But where an estate was devised to a wife for hamlife, and after her decease to be sold, and the money 353. Siler-5. 3.30. Bell divided among the testator's nephews and nieces, Bichurt the children of such as should be then dead standing

308.

Haugh

in the place of their father and mother deceased: it was held that the children of nephews and nieces who died before the testator were not entitled to any share. And in another case in which J. F. bequeathed 800l. to each and every of the child and Bit-children of his brother and sisters A. B. C. and D, -illight which should be living at the time of his decease J but if any child of his said brother and sisters, 34 and should happen to die in his (the testator's) lifetime Jun. Sug. Say and leave issue, then he gave the legacies intended Garmen

319.

ha. 260. -for the child so dying to the issue, such issue taking Ching only the legacy which the parent would have been 269. Be entitled to if living at the testator's death; and the Mes children of one of the sisters had died before the Brav. 360. Gug-hallholm making of the will, leaving issue: it was held that 3 ha.4 38. such issue could not claim; for nothing was given to

a

155 m. 26. 287.

2 P.W. 331. Chatteris v. Young, 6 Mad. 30. Vachel v. Vachel, I Ch. Ca. 129; and see Allen v. Callow, 3 Ves. 289.