Sohier v. Inches

We think it very clear that the share which Sarah, one of the testator’s children, would have taken under his will, if she had survived him, lapsed by her death during the lifetime of the testator. The gift to Sarah was of a share of the residue of the testator’s estate. It was not included in a gift to certain of the children as a class, so that the death of one would leave the gift unimpaired to go to the survivors; but it was a bequest of a certain specific share to the deceased child by name. It can make no difference, that a bequest to the other children of the testator is included in the same clause of the will. The gift is to each child nominatim, oí a specific share of his estate, and there are no words which indicate any intent to create survivorship. On the contrary, the bequest is to each absolutely. Nor is there any provision whatever in the will (except as to the gift to his son Charles, which is immaterial to the present inquiry) for the event of his children dying without issue. It would seem therefore to be the common case of a specific bequest to a child who deceased before the testator, and to come within the ordinary rule applicable to lapsed gifts or devises. Bagwell v. Dry, 1 P. W. 700. Lloyd v. Lloyd, 4 Beav. 231. Barber v. Barber, 3 Myl. & Cr. 688. It certainly cannot fall into the residue, because it was itself a part of the residue. It must therefore pass to the heirs at law as undevised estate. Leake v. Robinson, 2 Meriv. 393. Doe v. Scott, 3 M. & S. 300. Hayden v. Stoughton, 5 Pick. 537.

*388It is urged that this result defeats the declared purpose of the testator in providing that the share of his son Charles shall be put in trust, and that he shall take no interest in his real estate. But the answer is obvious. The testator did not anticipate or provide for the event of the death of one of his children in his own lifetime. It is a casus omissus. The intent so clearly indicated by the testator as to the interest of his son Charles under the will can apply only to that interest. It cannot operate on a specific portion of his estate expressly given to another child, whose death without issue was manifestly not contemplated by the testator.

We are therefore of opinion that the defendant Charles Inches is entitled absolutely, as heir at law, to his proportion of that part of his father’s estate which was given by the will to his deceased sister. Decree accordingly.