The hand-book of the law of legacies / containing a statement of the nature of legacies, and the accidents to which they are subjects; together with the rights of legatees, and the causes and manner of the ademption, cumulation, and abatement of their bequests

by Anonymous

THE LAPSING OF LEGACIES.

A legacy is said to lapse, or slip from, or be lost to the legatee, where, through his own fault, or through an impossibility over which he has no control, he fails to fulfil that condition of the will on which he is expressly to take the bequest. Thus, if a legacy be left to a person which is directed not to be paid unless he attains a certain age, and he dies before that age, though the death be no fault of his own, his representatives will be divested of all the right which they would otherwise have acquired.

One peculiar instance of this was shown in the facts elicited in the case of Tulk v. Houlditch, in which it appeared that the testator left a legacy to a person, concerning whom there was every probability that he was not alive, but yet no certainty could be obtained. In order, however, to insure the identity of the party, the bequest had a condition annexed to it, that the legatee should return to England, and personally claim of the executrix, or within the church porch of the parish, within seven years, otherwise the legacy was to lapse, and fall into the general residue. It afterwards appeared that the legatee was really alive at the time the bequest was made to him, but he failed to return, and, in fact, died abroad within the seven years. Lord Eldon, accordingly, held that the legacy had lapsed, for though the legatee was living he had not fulfilled the directions of the will, and he thereby lost his right to the bequest.

The general rule respecting the lapsing of legacies is, that if a legatee die before the testator, the legacy shall become a portion of the general residuary estate, nor will a statement that the bequest is made to the legatee, his executors, administrators or assigns, or to him and his heirs, prevent the lapse; nor will even the expressed desire of the testator, that the bequest shall not fail if the legatee shall die before him, exclude the next of kin. But a slight alteration of the terms of the will may prevent the failure, as in the case of the death of A. before the testator, other persons are named to take; for instance, A.’s legal representatives, or the heir under his will, or to A., B., C., “or to their heirs,” or to A., “and failing him by decease before me, to his heirs,” the legacy, on A.’s so dying, shall vest in such nominees.

It is decreed by 1 Vict. c. 26, s. 29, “that in any devise or bequest of real or personal estate, the words ‘die without born issue,’ or ‘have no issue,’ or any other words which may import either a want or failure of issue of any person in his life-time, or at the time of his death, or an indefinite failure of issue, shall be construed to mean a want or failure of issue in the life-time, or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will.”

We may conclude with the observation, that where a legacy is clearly left to any particular person, the court will require very clear evidences of the failure of the performance of conditions, before it will allow a lapse to the loss of the representatives of the legatee; and, that just in proportion to the clearness of the bequest, is the danger of the lapse.