bounty. Thus, a bequest to the child of which a woman is now pregnant is good (s). And if illegitimate children have acquired the reputation of being the children of the testator or any other person, and it appear by necessary implication on the face of the will that such persons were intended in a bequest to children, they will be entitled, not on account of their being children, but on account of their reputation as such (t). Under such a bequest, it has been held that an illegitimate child en ventre sa mère at the date of the will (u), although not born till after the testator's death (x), can take, as well as children by reputation actually born at the date of the will. And it would seem that illegitimate children, who have acquired their reputation of children at the date of the testator's death, can take under such a bequest, although begotten after the date of the will (y). But it has been decided that an illegimate child, both begotten and born after the death of the testator, cannot share in such a bequest, because to hold otherwise would be to encourage immorality (z).

After payment of the testator's debts and legacies, Rights of the residue of his personal estate must be paid over to residuary legatee. the residuary legatee, if any, named in the will. A will of personal estate has always been considered as speaking from the death of the testator; and it is now expressly enacted, that every will shall be construed, with reference to the real and personal estate comprised

(8) Gordon v. Gordon, 1 Meriv.

141.

(t) Wilkinson v. Adam, 1 Ves. & B. 422; Gill v. Shelley, 2 Russ. & My. 336; Meredith v. Farr, 2 You. & Coll. 525; Hill v. Crook, L. R., 6 H. of L. 265; Lepine v. Bean, L. R., 10 Eq. 160; Re Humphries, Smith v. Miliidge, 24 Ch. D. 691; Re Bryon, 30 Ch. D. 110; Re Haseldine, 31 Ch. D. 511; Re Horner, 37 Ch. D. 695;

Re Harrison, 1894, 1 Ch. 561.
(u) Occleston v. Fullalore, L.
R., 9 Ch. 147.

(x) Crook v. Hill, 3 Ch. D. 773.
(y) Occleston v. Fullalove, ubi
sup.; Re Hastie's Trusts, 35 Ch.
D. 728; but see Re Bolton, 31
Ch. D. 542.

(2) Crook v. Hill, ubi sup.; see also Re Harrison, 1894, 1 Ch. 561.

Lapse.

If any legacy should lapse

in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will (a). Hence it follows that all personal property acquired by the testator between the time of making his will and his decease will pass under it. by the death of the legatee in the testator's lifetime, or should fail from being contrary to law, it will fall into the residue, and belong to the residuary legatee. And a legacy will lapse by the death of the legatee in the testator's lifetime, although given to the legatee, his executors, administrators, and assigns (b); for these words are merely inserted in analogy to the limitation Joint tenants. of real estate to a man and his heirs. If a bequest be made to two or more as joint tenants, and one of them die in the lifetime of the testator, his share will not lapse, but will survive to the others (c). But if the bequest be to two or more in common, and one of them die in the testator's lifetime, his share will lapse (d); unless the bequest be made to a class, as to the children of A. in equal shares, in which case all who answer that description at the testator's decease (e), and also (if the period of distribution be postponed by the will) all who come into being before such period (ƒ), will be entitled to divide the bequest amongst them. It is, however, provided by the Wills Act that where any person, being a child or other issue of the testator, to whom any personal estate shall be bequeathed for any interest not determinable at or before the death of such person, shall die in the testator's lifetime leaving issue, and any such

Tenants in common.

Bequest to a class.

Legacies to children

(a) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 24.

(b) Elliott v. Davenport, 1 P. Wms. 83.

(c) Morley v. Bird, 3 Ves. 628, 631.

(d) Bagwell v. Dry, 1 P. Wms. 700; Page v. Page, 2 P. Wms. 489; Barber v. Barber, 3 My. &

Craig, 688; Bain v. Lescher, 11
Sim. 397.

(e) Viner v. Francis, 2 Cox, 190; Jarm. Wills, 311, 1010, 5th ed.; Lee v. Pain, 4 Hare,

250.

(f) Ayton v. Ayton, 1 Cox, 327; Jarm. Wills, 311, 1011, 5th ed.

issue shall be living at the death of the testator, such
bequest shall not lapse, but shall take effect as if the
death of such person had happened immediately after
the death of the testator, unless a contrary intention
shall appear by the will (g). The effect of this provision
is curious. If the legatee had died immediately after
the testator, leaving a will, it is evident that the estate
bequeathed to him would have passed under his will.
It has been decided, therefore, that the will of the
legatee shall, after his death, operate on the estate
bequeathed to him in the same manner as if he had
been living (h). This provision has been held to apply
to a testamentary appointment under a general power
of appointment (i), but to be inapplicable to a testa-
mentary appointment under a power to appoint amongst
the testator's children (k); and it does not extend to
gifts to children or issue as a class, and not indi-
vidually (l). If a bequest of residue, or of a share of Lapse of
residue, should lapse by the legatee's death in the
testator's lifetime, the property bequeathed will, in the
absence of any further disposition thereof by the will (m),
and subject to the effect of the above-mentioned pro-
vision of the Wills Act as to bequests to children or
other issue, devolve as upon intestacy (n).

residue.

the residue.

If there were no residuary legatee, the residue of the Former right testator's personal estate, after payment of debts and of executor to legacies, formerly belonged to the executor for his own benefit, unless a contrary intention appeared from his being left executor in trust (o), or from his having a legacy left him for his trouble (p), or from other cir

(g) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 33.

(h) Johnson v. Johnson, 3 Hare, 157. Probate duty attaches; Perry's exccutors v. The Queen, L. R., 4 Ex. 27.

(i) Eccles v. Cheyne, 2 Kay & J. 676.

(k) Griffiths v. Gale, 12 Sim. 351; Freeland v. Pearson, L. R., 3 Eq. 658.

(1) Browne v. Hammond, John. 210; Re Harvey's Estate, 1893, 1 Ch. 567.

(m) See Re Palmer, 1893, 3 Ch. 369.

(n) Skrymsher v. Northcote, 1 Sw. 566.

(0) Pring v. Pring, 2 Vern.99; Bagwell v. Dry, 1 P. Wms. 700. (p) Rachfield v. Careless, 2 P. Wms. 158.

Modern statute.

Alienation for debt.

cumstances (q). But by a modern statute (), it is enacted, that when any person shall die, having by will or codicil appointed any executor, such executor shall be deemed by Courts of equity to be a trustee for the person or persons (if any) who would be entitled to the estate under the Statute of Distributions, in respect of any residue not expressly disposed of, unless it shall appear by the will or any codicil thereto (s), that the person so appointed executor was intended to take such residue beneficially. The Statute of Distributions is that under which the personal estate of any one dying intestate is distributed between his widow and next of kin. An account of this statute will be found in the next chapter.

It does not appear that the law gives any direct process of execution against an unpaid legacy or share of residue bequeathed to a judgment debtor (t). But such property, of course, vests in the legatee's trustee in bankruptcy (u).

(q) Mullen v. Bowman, 1 Coll. 197. See Re Bacon's Will, 31 Ch. D. 460.

(r) Stat. 11 Geo. IV. & 1 Will. IV. c. 40.

(s) Love v. Gaze, 8 Beav. 472; Harrison v. Harrison, 2 H. & M. 237.

(t) Re Potts, Ex parte Taylor, 1893, 1 Q. B. 648; see also Harris v. Beauchamp Brothers, 1894, 1 Q. B. 801. It appears that such property may be reached under a writ of sequestration; see an, p. 335, n. (7).

(u) See ante, pp. 235-237.

CHAPTER IV.

OF INTESTACY.

tical Courts

of intestate

persons.

THE Ecclesiastical Courts formerly had jurisdiction Jurisdiction not only over the wills of testators, but also over the of Ecclesiasgoods of persons dying intestate. This jurisdiction, over goods though of long standing, appears to have been at first gradually acquired. In early times the clergy, being possessed of almost all the learning, appear to have been the principal framers of wills. The power they thus acquired was exercised for their own benefit, every man being expected, on making his will, after bequeathing to his lord his heriot, in the next place to remember the church (a). If, however, a man should have died intestate, without opportunity of making this provision, the distribution of his goods devolved on the church, together with his friends, the lord first having taken his heriot (b). The wife and the children were entitled to their shares; and that part of the goods which the intestate had power to dispose of by his will (called the portion of the deceased) was applied by the church in pios usus. This application to pious uses Pious uses. appears to have been as follows: in the first place, the bequest, which it was to be presumed the intestate would have made to the church, was retained, and the residue was then disposed of in paying the debts of the deceased, and distributed amongst his wife and children, his parents and their relatives. That this was the case appears from the complaints which were made by the clergy of those days, of the interference of the tem

(a) Glanville, lib. 7, c. 5; Bract. 60a; Fleta, lib. 2, c. 57.

(b) Bract. 60b; Fleta, ubi supra.