delivered the opinion of the court.

Madam Volunbrun''s will, could only operate to pass that, which by law was the subject of a devise or bequest. The expectancy of a benefit to be derived from the will of Clery, was but a naked possibility, and could not, under any authority cited, be the subject of a testament. Indeed, it has been conceded, that such is the lawr, unless some alteration has been effected in it, by the act of 1810, ch. 34.

But the design of the legislature, in the enactment of that law, is so distinctly marked, and points so clearly to one *366object, as to leave us no room to believe for a moment, that they intended to enlarge the power of devising, or to affect it in any manner. They only desired to remedy inconveniences, growing out of the death of legatees, before the will could operate.

The law after declaring, that no legacy shall fail to take effect by the death of the legatee, proceeds in the following words: “ but every such legacy shall have the same effect, and operation in law, to transfer the right, as if the legatee had survived the testator.” This clause was intended,, barely to designate in what manner, the legacy falling in by the death of the legatee before the death of the testator, should pass. Having pronounced that it should not lapse, they deemed it necessary distinctly to point out the persons who should take, and they do this by saying, that the right shall vest, “as if the legatee had survived the testator.” The sole object of the law, which was to prevent the lapsing of legacies, is accomplished by the designation of such as shall take them. The construction therefore, which would confer new testamentary powers, would be one beyond the design of the framers of the law, and not by any means called for, by any phraseology they have used.

The language that, “ no legacy shall lapse by the death of the legatee,” can only be understood, as referring to such legacies as failed by the common law to take effect by lapsing, and which, but for the death of the legatee, would have been available legacies. But the legacy of a possibility does not fail to take effect by the death of the legatee, but from an inherent defect in the subject matter of the bequest, which renders it incapable of being operated upon by a will.

If the above views be correct, the supposed difficulty, growing out of the residuary bequests of the testator, and testatrix, each to the other, cannot exist.

Madam Volunbrun dying first, all the estate she was capable of willing by her residuary bequest, passed to M. Clery, either actually, or potentially, and was consequently the subject of testamentary disposition.

*367Madam Volunbrun became M. Clery’s residuary legatee, and her death, occurring before the will of Clery took effect, the act of 1810, ch. 34, steps in, saves the lapsing of the legacy, and vests it in her representatives.

The will of Madam Volunbrun, not operating to pass over Clery’s residuary bequest, it cannot produce any effect in the cause, and is not touched or affected by the act of 1810, ch. 34.

But a question still arises upon this statute — Does the executor or administrator of the deceased legatee, or his distributees, take the legacy ? The solution of this, depends upon the construction of the following words of the law, “but every such legacy shall have the same effect and operation in law to transfer the right, as if the legatee had survived the testator.” As in the case of survivorship of the legatee, the testamentary bequest of the legacy, would have operated the complete transfer of the right to the legatee; so in case of his death, the right shall be transferred just as effectually: but to whom ?

The time of the transfer, is the death of the testator ; and as the legatee, died before the testator, he would not be the person meant, as the object of the statutory transfer. But the law refers to such persons then in esse, entitled by law to the distribution of the legatee’s estate in case of intestacy, that is, his representatives.

The words of the law are, not that the legacy shall pass in the same manner as if the legatee had survived and died, but that a transfer should in all cases be operated,, as if he had survived; that is, that the title to the legacy, should be as binding and operative in the one case as the other. As it was not intended, that the legatee not in esse at the time to take, should take the right, because being impossible, it would be absurd. We likewise think, that his executor or administrator could not take as assets, that which never could have been the testator’s or intestate’s. Had the legislature intended, that the legacy should become, and be considered as assets, belonging to the estate of the legatee, liable in the *368due course of administration, we think it would not have been left to dubious construction, but would have been declared in unambiguous terms. The words, “ as if he had survived,” furnish no argument against this view, because they are barely used as words, comparing the title derived under the law, by the persons who are to take, with the title the legatee would have had, and assimilating them in point of legal operation and validity.

- In accordance with the above views, a case was decided on the Eastern Shore, June Term, 1824.

The facts of that case were as follows: On the 2d November, 1812, Sally Spence made her will, and died on the 12th December, 1812. She bequeathed the residuum of her estate to Mary Spence Gillis, and appointed Joseph Gillis her executor, who accepted the trust. Mary Spence made her will, 28th of October, 1809, and died on 1st September, 1821* By this will, she made Sally Spence her residuary legatee* Ara Spence administered on the estate' of Mary Spence, and after payment of all debts, &c. the residuum of hex estate amounted to $900. Joseph Gillis executor of Sally Spence, instituted suit against Ara Spence, to recover the amount of this residuum; the county court gave judgment for the plaintiff, but upon appeal to' the court of Appeals, this judgment was reversed, and the residuum was distributed among, the representatives of Sally Spence* This case is decisive of the cause now before the court.

We accordingly think that the funds must remain in the hands of the administrator of Clery, who will be bound to distribute them after the payment of debts to the representatives of Madam Volunbrun.

We reverse the decree of the Orphans’ court and dismiss the Petition with costs.

decree reversed*