LEGACY.
In case of a devise to two as joint tenants, if one die before the testator, where sur vivorship in a joint tenancy has been abol ished, his share has been held to fall in the residue; Wins. Eq. 89. Where land was devised to a son who was also appointed executor, and he died and the testator by codicil appointed another executor, refer ring to the death of his son, it was held that the devise did not lapse, and should be con strued as a devise to the son's heirs; Davis' Heirs v. Taul, 6 Dana (Ky.) 51.
A devise to one for life with a remainder does not lapse by the death of the first taker before that of the remainderman; West v. Williams, 15 Ark. 682.. The refusal or in capacity of the first taker of a devise or legacy to several in succession does not cause it to lapse, but it passes to the next; Brown v. Brown, 43 N. H. 17. If one is appointed by will to take in case of the death of the first devisee and on that event, the appointee can take as contemplated by the will, there will be no lapse, although the devisee dies before the testator, but the ulterior gift will take effect immediately on testator's decease as a direct unconditional gift ; Armstrong v.
Armstrong, 14 B. Mon. (Ky.) 333.
A devise in trust for a son, and "in the event of the son dying childless" then over, lapsed by the death of the son in the life time of the testatrix, and the devise over did riot take effect; McGreevy v. McGrath, 152 Mass. 24, 25 N. E. 29.
A devise made to a wife for life, with remainder to the daughter, and with power to the wife to sell and invest the proceeds for the benefit of the daughter, does not lapse during the lifetime of the wife, being for the benefit of the latter as well as the former; Cotton v. Burkelman, 142 N. Y. 160, 36 N. E. 890, 40 Am. St. Rep. 584.
With a single important exception, the same principles apply to devises and lega cies with respect to lapse, and as to that difference, and also for other cases on the subject, see LAPSED LEGACY.