the issue, except in the way of substitution; and of the parents, the original legatees, none could have taken besides those who were living at the date of the will. It seems also settled notwithstanding some former umsetizer doubts' that where a person gives a legacy at a future o 639. Prec time, and bequeaths it over to another on the death - 6 Bear. 180 of the legatee before the time of payment, as in the case of a gift to A. at twenty-one, and if he die before that age to B.; the legacy will not laspe by the death of A. under twenty-one in the lifetime of the testator, but will vest in B. as a new substantive and original devise to him." But if A. should attain twenty-one, and afterwards die in the testator's lifetime, the legacy will lapse.d 1 When the legatees are joint-tenants the share of any one dying before the testator will survive to the rest, and not lapse into the general estate for the benefit of the residuary legatee, as would be the case if they were tenants in common. And it may per Northey Com. Dig. Chan. 3 Y. 14, Prigg v. Clay, 2 Ch. Rep. 187. Ledsome v. Hickman, 2 Ver. 611. e. Strange, 1 P. W. 340. Pr. ¡Ch. 470. Gilb. Eq. R. 136. Willing v. Baine, 3 P. W. 113. Scolding v. Green, 1 Eq. Ab. 298. Pr. Ch. 37. Hornsby. Hornsby, Mos. 319. Walker v. Main, 1 Jac. & W. 1. So in Bone v.Cooke, ante 164, the Lord C. Baron thought, that if there had been children of the deceased legatee living at the time of the death of the testatrix, they would have taken. a haps be said that a lapse will take place, when the gift is made generally to a class of persons as tenants in common. For although in a bequest to the children of the testator's late sister, to be equally divided among them, it was held that the share of one of the children who died after the making of the will, in the lifetime of the testator, went among the rest; on the ground that the fund was divisible, according to the rule before noticed, among the children living at the time of its distribution. Yet in a subsequent case, in which however Viner v. Francis was not cited, where there was a bequest to the children of the testator's late cousins A. and B. equally, &c.; and A. and B. had at the date of the will one child each, and the child of A. died in the testator's lifetime it was held that a moiety of the fund lapsed, and went to the personal representative of the testator. So where the will consisted of a letter addressed by the testator to his mother and sisters, in which he said, "should any thing remain after paying my debts, I could wish it to be divided amongst you;" and his mother and one of his sisters died before him: Sir W. Grant considered that the testator meant by the word "you," all those to whom the letter was addressed, viz. the mother and then living sisters; adding, that it was therefore a tenancy in common, and the shares of those who died in his lifetime were lapsed." We may here add a case in which a man be a Ante 124. b Viner v. Francis, 2 Cox, 190. 2 Bro. 658. See also Bird v. Lockey, 2 Ver. 744. Freemantle v. Freemantle, 1 Cox, 248. Thornhill v. Thornhill, ante 168. Martin v. Wilson, 3 Bro. 324. Belt's ed.; and see Sperling v. Toll, 1 Ves. 71. d Ackerman v. Burrows, 3 Ves. & B. 54. queathed to his son Joseph 1500l., and 1000l. to each of his two daughters, and directed that if any of them should die before twenty-one, their portion or share should go to the survivors; and the son and one of the daughters died, and the testator afterwards had another son, whom he called Joseph, and then made a codicil by which he confirmed his will, and thereby also, taking notice that since the last it had pleased God to give him another son, gave a legacy of 500l. apiece to his son Joseph and his surviving daughter over and above what he had given them by his will; and it was contended that the 15007. became a lapsed legacy: the Lord Chancellor said, it was improper to call this a lapsed legacy; that the making of the codicil was a republication of the will, and amounted to a substituting the second Joseph in the place of the first; as if the testator had made his will anew, and had written it over again, by which new will the second Joseph must take. day II. It is not always sufficient that a legatee survives the testator: for if the bequest is made payare able at a future period, the question arises, whether it is contingent, and depending upon the event of his being in existence at that time; or whether, in case of his previous death, the right to it is so vested in him, as to be transmissible to his representatives. . 240. The general rule in the civil law, as well as ours, is, that where a legacy is given to a person at a future uncertain time, that may or may not arrive, the Sun.465. 10 Bussey legatee must be in existence at that time. Thus in a med bequest to A. " at his age of twenty-one," or "if," or Lisa Be" when," he attains twenty-one, the law considers the attainment of that age as a condition annexed to the legacy, and the legatee entitled only upon the fulfilment of the condition. If A. therefore dies under twenty-one the legacy fails, and will not go to his representatives. Thus where a man devised lands to his eldest son he paying legacies to the testator's other children at their respective ages of twenty-one; and one of the children, a daughter, married and had children, and died two months before her age of twenty-one; it was held that her husband as her administrator had no claim to the legacy." In the civil law, however, there existed a distinc4. i 25.3tion between a legacy given to a person at the age of -an 3 he twenty-one, and a legacy "payable" or " to be paid” 289. Franr Bat $15. 227. Bree L 3 at that age. In the latter case the time was said not 5. Bto be annexed to the substance of the legacy, but Bragh 2.300 merely to the payment. The gift was considered as Perfect's co debitum in præsenti solvendum in futuro; and the hule legatee was held to have such an interest vested in 281. Ja Re Bunn him as was transmissible to his representatives, if he こ 5. died before the time of payment. This distinction has been continually disapproved of in our courts, and even characterized as idle, absurd, and a distinc a Swinb. P. 4. S. 17. Godolph. As to May and Love v. L'Estrange, 3 Bro. P. C. 337, see Sir b Carter v. Bletsoe, Pr. Ch. 267. 2 Ver. 617. Gilb. Eq. R. 11. • Swinb. P. 4. S. 17. Godolph. 383. Pr. Ch. 318. b tion without a difference: yet as the ecclesiastical court has a concurrent jurisdiction with equity in matters of this nature, it was adopted in an early case, and has ever since been an established rule.c But to make a legacy a vested interest in these cases the words "to be paid" must merely refer to the time of payment. Where therefore a legacy was given to A. at the age of twenty-one to be paid by the executors in England: this was considered only as a designation of the person by whom the legacy was to be paid; and A. having died under twenty-one, the bequest lapsed. So if the direction of the pay- Chevio ment is the substance of the legacy, it will be conditional. Thus where the residue was willed to be equally paid and divided to and between A. & B. at such time as they should severally attain their respective ages of twenty-one, or sooner if the testa-5. trix's daughter should think fit: Lord Hardwicke thought if it had not been for the latter words the legacies would not have vested till twenty-one: for there being no bequest but what was contained in the direction of payment, it was the same thing as if the testatrix had said, I give it them at the age of twenty-one. The above distinction having been adopted only for the sake of making the decisions of the temporal See 2 Freem. 244. 2 Ver. 417. 1 Eq. Ab. 295. margin. 2 P.W. 612. 3 Ves. 543. b Clobberie's case, 2 Vent. 342. 2 Freem. 24. 2 Ch. Ca. 155. 2 Eq. Ab. 539. Skin. 147. Rowley v. Lancaster, 2 Ch. Rep. 25. Bro. Ab. Dev. 27.45. Bac. Ab. Leg. E. 2. Touch. 454. Com. 722. Gilb. Eq. R. 76. 1 Burr 227. Willes, 90. Prec. Ch. 317. 3 P.W. 21. 138. 509. Onslow v. South, 1 Eq. Ab. 295. • Van v. Clark, 1 Atk. 510; and see Batsford v. Kebbell, post 181. f Steadman v. Palling, 3 Atk. 423. 13 en |