LAPSED DEVISE. A devise which has lapsed, or does not take .effect because of the death of the devisee before that of the testator.
The subject-matter of the lapsed devise will, if no contrary intention appear, be included in the residuary clause (if any) contained in the will. In England, by stat. 1 Viet. c. 26, if the devise be to children or other issue of the devisor, and the issue of the devisee be alive, the devise will not lapse, if no such intention appear in the will. A devise always lapses at common law if the devisee dies before the testator, and such was the general rule in this country ; Prowitt v. Rodman, 37 N. Y. 54; Robinson v. Martin, 2 Yeates (Pa.) 525; but in many if not all the states, if made to a son or grandson of the testator, it takes effect, by force of statute, in favor of his heirs, if he die before the testator. In North Carolina, a devise to a child dying before the testator does not lapse, but goes to the issue of such child; Cox v. Ward, 107 N. C. 507, 12 S. E. 379; so in Massachusetts, in the case of a devise to a child or other relative; 3 Washb. IL P. *523; Esty v. Clark, 101 Mass. 38, 3 Am. Rep. 320.
In Maryland, the provision against lapse goes much further, and it is provided that no devise or bequest shall fail by reason of the death of the devisee or legatee before the testator, and it takes effect in like man ner as if they had survived him ; Craycroft v. Craycroft, 6 Har. & J. (Md.) 54. See 1 Jarm. Wills, 6th Am. ed. *307, n.; 4 Kent 541. In regard to a lapsed devise, where the devisee dies during the life of the testa tor, the heir of the devisee will not take; Gore v. Stevens, 1 Dana (Ky.) 201, 25 Am. Dec. 141; but the estate will go to the tes tator's heir, notwithstanding a residuary dev isee. But if the devise be void, as where the devisee is dead at the date of the will, or is made upon a condition precedent which never happens, the estate will go to the residuary devisee, if the words are sufficient ly comprehensive; 15 Ves. 589; In re Wool mer's Estate, 3 Whart. (Pa.) 477; Ferguson v. Hedges, 1 Earring. (Del.) 524; 4 Kent 541. But some of the courts hold in that case even, that the estate goes to the heir; Greene v. Dennis, 6 Conn. 293, 16 Am. Dec.
58; Lea v. Brown, 56 N. C. 141; Tongue's Lessee v. Nutwell, 13 Md. 415, where it was said that there was no solid distinction be tween a lapsed and a void devise, and that in both cases the heir at law should take, and not the residuary devisee.
When the devise is to the person de ceased, with such words as "and his heirs" added, they are generally held to be words of limitation, and not of description. So a devise of the proceeds of laud to three per sons, one-third to each, and to "their heirs respectively for ever," lapsed on the death of one as to his share, the word heirs desig nating the estate, not the takers; Estate of Worsley, 36 W. N. C. (Pa.) 247 ; so where a residuary devise was to two persons, "their heirs and assigns"; Horton v. Earle, 162 Mass. 448, 38 N. E. 1135. The rule that de vises lapse by the death of the devisee is not changed by adding to the devise the words "to have and to hold the same to them, their heirs and assigns for ever"; In re Wells, 113 N. Y. 396, 21 N. E. 137, 10 Am. St. Rep. 457. And where land was devised to a daughter for life and then to be "equally divided among the lawful heirs of" another daugh ter, it was held that the word heirs must be taken in a technical sense, and as the last mentioned daughter was alive at the death of the first, the devise to the heirs lapsed ; Clark v. Mosely, 1 Rich. Eq. (S. C.) 396, 44 Am. Dec. 229.
In case of gifts to a class, the rule is that there is no lapse, but they go to the other members of the class; Theobald, Wills 643. It is, however, held that the gift is not to a class if the members of the class are named ; 11 Sim. 397; 2 J. & H. 656; nor if to "five daughters of A" or "my nine children"; 9 Ch. D. 117 ; 15 Ch. D. 84; and where the residue was given to sons named, there be ing nothing to show that testator intended otherwise, they took as individuals and not as a class, and the share of the son who died before his father's death lapsed, and passed as intestate real estate; Church v. Church, 15 R. 1. 138, 23*Atl. 302. See LAPSED