LAPSED LEGACY. A legacy which, on account of the death of the legatee before the period arrives for the payment of the leg acy, lapses or deviates from the course pre scribed by the testator, and falls into the residuum. 1 Wms. Ex., 7th Am. ed. *1071; Craighead v. Given, 10 S. & R. (Pa.) 351.
A legacy which has never vested or taken effect; one which, originally valid, after wards fails, because the capacity or will ingness of the donee to take has ceased to exist before he obtained a vested interest In the gift. Booth v. Baptist Church of Christ, 126 N. Y. 215, 28 N. E. 238.
A distinction exists between a lapsed devise and a lapsed legacy. A devise which lapses does not fall into the residue unless so provided by the will, but descends to the heir at law ; on the contrary, personal property passes by the residuary clause, where it is not otherwise disposed of ; 15 Ves. 709 ; 3 Whart. 477. See LAPSED DE VISE.
A lapsed legacy passes by a general re siduary clause ; Kimball v. Chappel, 18 N. Y. Supp. 30; so also did a legacy which lapsed because it was void ; Hulin v. Squires, 63 Hun 352, 18 N. Y. Supp. 309. A lapsed or void legacy goes to the residuary legatee un less an intention to the contrary clearly ap pear; Hamberlin v. Terry, 1 Sm. & M. Ch. (Miss.) 589; King v. Woodhull, 3 Edw. Ch. (N. Y.) 79.
The reason assigned for this difference is that a bequest of personal property refers to the state of the property at the time of the death of the testator, and that a devise operates only on land of which the testator was seised when he made his will; and it is not to be presumed he intended to devise by a residuary clause, a contingency which he could not have foreseen, nor to embrace in it lands contained in a lapsed devise; Greene v. Dennis, 6 Conn. 293, 16 Am. Dec. 58; Lingan v. Carroll, 3 Harr. & McH. (Md.) 333. "How far the alteration of the law of those states where after-acquired lands may be devised will destroy this distinction, it is difficult to say." 1 Bouv. Inst. 2150.
The Pennsylvania act of June 4, 1879, P. L. 88, made the law respecting the devolu tion of a lapsed devise the same as that of a lapsed legacy, but it was held that this applied only to lapsed specific devises in the body of the will, and that as to lapsed shares of the residue no change was in tended ; Everman v. Everman, 15 W. N. C.
(Pa.) 417. And the same provision exists, except where the will requires a different construction, in Virginia, North Carolina, West Virginia ; but in the last state, if there is no residuary devisee, it goes to the heir at law.
The common-law distinction between lapsed devises and lapsed legacies with ref erence to falling into the residuum has been abrogated by statute in New York, and lapsed devises as well as lapsed legacies fall into the residuum ; Moffett v. Elmen dorf, 152 N. Y. 475, 46 N. E. 845, 57 Am. St. Rep. 529.
Where a testator gave a share of his residuary personal estate to his widow who took under, the will, and another share to a daughter who died before him without issue, it was held that the testator died intestate as to the share given to the daughter, and that the widow was entitled to one-third of it under the intestate laws ; In re Reed's Es tate, 82 Pa. 428.
Where the rent of a house was given for life to testator's daughter, and at her death to be sold, the proceeds to go to her chil dren when twenty-one years of age, and the income meanwhile to be applied to their maintenance, it was held that the legacy to the children was vested, and on their death in the lifetime of the mother there was no lapse, but the property vested in the life tenant in fee as the heir of her children as the heir at law of the original tes tator; Cropley v. Cooper, 19 Wall. 167, 22 L. Ed. 109, reversing 7 D. C. 226.
If a legacy is payable out of real estate in consequence of a deficiency of personal property, it will go to the heir at law in case of lapse, and if the personal estate is sufficient to pay debts and legatees, it will go to the residuary legatee ; King v. Strong, 9 Paige (N. Y.) 94. A legacy to one for life with remainder to another does not lapse up on the death of the first taker during the testator's life; Richmond v. Vanhook, 38 N.