LAPSE (from Lat. lapsus. a falling. slipping, from /abi, to fall. to slip). In the law of wills, the failure of a leoacy or devise to take effect, by reason of the death of the beneficiary before that of the testator. or because it becomes inoper ative, subsequent to the execution of the will. for some cause or condition contained in the terms of the will. The term. therefore, applies only where the legacy or devise is gond and capable of taking effect at the time it is made, and be comes inoperative thereafter. and is to he distin guished from the term 'void' when applied to a legacy or devise which is not a testamentary act because the beneficiary named is dead at the time of the execution of the will, or by reason of being in contravention of some rule of law. Thus, A makes a devise to B, who is alive at the time, but who dies before A, the devise is said to lapse; whereas if B is dead at the time, the &vise is void, as it was never capable of taking effect. A bequest to a society of anarchists. to be applied for the purpose of destroying the 611V eminent, would be void as being in contravention of law. This distinction is important under the common-law rules in regard to the interpreta tion of wills, under which a devise in a will has reference to the time when the will is executed, and only such real property will pass under a residuary devise as remains !indisposed of at that time. Therefore, if a devise is valid at the time when made, but subsequently lapses, a residuary revises could not claim the property attempted to be disposed of thereby, as it was not a part of the residuum at the time the will was made. However, if a devise is void from the beginning for any reason. the property is never disposed of
in contemplation of law, and therefore continues a part of the residuum to which the residuary devisees are entitled under the will.
As to personal property, even under the com mon law the will is construed as if executed im mediately before the testator's death and as af fecting that which is undisposcd of at the time. Therefore, personal property attempted to be disposed of by a legacy which subsequently lapses will go to the residuary legatees, if any.
The rule in regard to the interpretation of wills as to devises has been abolished in England and most of the United States, and as a consequence many States hold that all distinction in this re gard as to real and personal property is abol ished, and accordingly that lapsed devises fall into the residuum as in cage of legacies. How ever, a considerable number of State: still adhere to the eommon-law rules, notwithstanding the changes effected by their statutes, as above re ferred to. The statutes of many States tend to prevent the lapse of legacies and devises, by pro visions to the effect that in the absence of con trary provisions in the will, the children of a beneficiary shall take the gift intended for the parent. This does not operate to give such children vested interests as a devise or be quest is always subject to revocation by the tes tator. It is quite common for testators to pro vide against lapses by designating alternative beneficiaries, who will inherit in event of the deaths of those first mentioned. Consult the au thorities and references under WILL. See AnEmr