C. 581. If a legacy is payable out of a par ticular debt due the testator, it does not fail on failure of payment of the debt ; Gallagher v. Gallagher, 6 Watts (Pa.) 473.
Unless the legatee survive the testator, as a rule neither he nor his representatives have any claim to the legacy ; Comfort v. Mather, 2 W. & S. (Pa.) 450, 37 Am. Dec. 523; Ballard v. Ballard, 18 Pick. (Mass.) 41; Hatcher v. Robertson, 4 Strobh. Eq. (S. C.) 179 ; Bill v. Payne, 62 Conn. 140, 25 Atl. 354; and the same rule applies where a legacy is given to a man and his executors, etc.; 3 Bro. C. C. 128; Kimball v. Story, 108 Mass. 382; Bolles v. Smith, 39 Coma. 219 ; though the testator may expressly provide otherwise; L. R. 14 Eq. 343. A declaration that a legacy shall not lapse is not sufficient to prevent it unless the intention is clear that it shall go to the estate of the legatee ; 27 Beay. 418 ; 4 D. M. & G. 633 ; but gifts to A and his executors and administrators with the direction that it shall not lapse is sufficient; 2 Atk. 572. A direction that a legacy should vest from the date of the will is not sufficient to prevent lapse; 14 Eq. 343. From a devise of the remainder of an estate in distinct parcels there arises an in ference that the testator did not intend that lapsed legacies should fall into the residue; Silcox v. Nelson, 24 Ga. 84.
A gift to A, and in case of his death to his executors and administrators, will go to A's executors in the event of his death be fore the testator ; 54 L. J. Ch. 648, aff'g 32 W. R. 516 and overruling 1 Myl. & K. 470.
Where a testator bequeathed his estate to several legatees, and having learned of their death, interlined in his will between the words "as follows" and the list of the lega tees the words "or to their heirs," and after the names added words signifying their de cease and republished the will, the legacies did not lapse; Gilmor's Estate, 154 Pa. 523, 26 Atl. 614, 35 Am. St. Rep. 855, distinguish ing Sloan v. Hanse, 2 Rawle (Pa.) 28, and Appeal of Barnett, 104 Pa. 342. Where a legacy was given to one in trust for his wife, the income for her life, with power of ap pointment by will, and in default thereof "it shall be equally divided among my chil dren or their legal representatives," the words legal representatives meant executors and administrators, and not next of kin, and the legacy to any child who died without is sue in the lifetime of the testator lapsed ; Norwood v. Mills, 1 Ohio N. P. 314. A be
quest of personal property to one and "heirs and assigns" are words of limitation, and the legacy lapsed on the death of the legatee before that of the testator ; Bryson v. Hol brook, 159 Mass. 280, 34 N. E. 270; so also to one and "his heirs"; Kimball v. Chappel, 18 N. Y. Supp. Where a legacy is given to a class it is generally held that the death of one of the I class before the testator does not create a lapse, but simply reduces the number of the class ; Stires v. Van Renssalaer, 2 Bradf. (N. Y.) 172; in such a case, when one in whom the right is vested dies before distribution, his interest goes to his representatives; Knight v. Wall, 19 N. C. 125 ; Rocker v. Gentry, 3 Metc. (Ky.) 463. See LAPSED DE VISE.
Where a residue was devised in trust for four sons, the intention was clear that their enjoyment was to be several and not joint, and the share of one who died before the testator was held not to go to the survivors, but to be disposed of as intestate real es tate; Lombard v. Boyden, 5 Allen (Mass.) 249; but where an estate was bequeathed to all the children in a family by name, the tenor of the whole will indicating that they were intended to take as a class, the share of one who died without issue before the tes tator went to the survivors ; Schaffer v. Ket tell, 14 Allen (Mass.) 528. It was early pro vided by statute in Alabama that the death of a devisee or legatee, leaving a descendant, before the testator, should not cause a lapse, but the gift would vest in the descendant; Jones v. Jones' Ex'r, 37 Ala. 646.
Under a Maine statute making an adopted. child the same as a lawful child, such child is a lineal descendant of its adopting parents within the meaning of the statute to prevent the lapse of legacies to such descendants ; Warren v. Prescott, 84 Me. 483, 24 Atl. 948, 17 L. R. A. 435, 30 Am. St. Rep. 370.