Billingsley v. Tongue

Mason, J., delivered the opinion of this court. Gideon G. Tongue, the father of the appellees, died at Galveston, in the State of Texas, on the 22nd or 23rd day of September 1853,' having executed his last will and testament on the 20th day of the same month. After the bequest of a single legacy, the will concluded with the following words: “The balance of my estate tobe divided among my heirs, Ann C. Billingsley, Gideon Denny Tongue and Thomas O. Tongue, being my children.” Ann C. Billingsley, who was the wife of the appellant, had died on the 19th of September, before the date of the will. She left three infant children who survived their grandfather, the testator, but died within ten days after his decease. After the death of said Gideon G. Tongue, a bill was filed for the sale of certain real estate situated in Anne Arundel county, Maryland, in which said Gideon G. had owned an undivided interest. Said property was sold by trustees appointed by the. decree in said cause; — and of the sales, the sum of $3342.17 would have been the distributive share of said Gideon G. if now living. The appellant claims the one-third part of this amount, averring, that said proportion would have belonged to the infant children of his wife, the said Ann C. Billingsley, under the will of her father, Gideon G. Tongue, and that he, the said appellant, is now entitled to the same as the heir at law of his said deceased children. Previous to the passage of the acts of 1810, ch. 34, sec. 4, and 1832, ch. 295, there could have been no doubt that the devise to Mrs, Billingsley would have been unavailing. But it has been argued with force and ability, that the terms of the act of 1810 are sufficiently comprehensive to embrace, not only a devise to a party dying after the making of the will, but before the death of the testator, but also a case, like the present, of a devise to one dead at the time the will was executed. The better authorities concur, that there is a manifest distinction between a void and a lapsed legacy; and in 1st Jarman on Wills, 293, (note,) the very cases put above are given as illustrations of the distinction between “a lapsed and a void devised' “ In the former case, the devisee dies in the inter [582] mediate time between the making of the will and the death of the testator; but, in the latter case, the devise is void at the beginning, as if the devisee be dead when the will was made.” This being a void, and not a lapsed legacy, the inquiry arises, whether the act of 1810 embraces void legacies? The act provides, that no devise, &c., shall lapse or fail of taking effect, by reason of the death of the devisee in the lifetime of the testator. This language clearly imports the happening of some future contingency to defeat the devise, which, without the happening of such contingency, would have been valid and effectual. The term, “lapse,” could have had no other meaning, and is perhaps the most proper, if not the only word that could be etnployed to convey that idea. But it is said the additional expression, “fail of taking effect,” is broad enough to embrace a case of a void, as well as a lapsed devise. These words were evidently used only to repeat, by explaining and amplifying, the same idea as that conveyed by the word lapse, and the effort to malee that plainer, which was plain before, it seems has only had the effect, if it has any, to make it obscure. If, therefore, the devise was void at the beginning, nothing was necessary, such as the death of the devisee, to make it fail of taking effect, but if something happening in the future was necessary to make it fail, it was not void ab initio. The devise being void and ineffectual to pass any property, the interest intended for Mrs. Billingsley either passed under the general clause of the will to the two living devisees, or it fell back into the estate and descended to the heirs generally. Either assumption would lead to the result of defeating the claim of the present appellant. If the former view be correct, of course the two sons of the testator took the whole; but if the latter, the third of the residuum which was intended for Mrs. Billingsley, descended to the heirs, and upon the death of her three children, their interest, whatever it rvas, having descended through their mother, should be'inherited by their uncles, (the mother’s brothers,) and not by their father. Decree affirmed with costs.