Yard v. Murray

Chief Justice Agnew

delivered the opinion of the court,

Where the language of a residuary clause in a will has sufficient scope and extent, evincing the intent of the testator to take up and carry into the residuary estate all of his estate remaining'at his death undisposed for any reason, the residuary clause will receive and pass a lapsed devise. This follows from the manifest intent of the testator himself. Such was one of the aspects of Patterson v. Swallow, 8 Wright 490, where the residuary words were: “ All the rest and residue of my real estate, whieh does not pass by virtue of my will and codicil I give, devise,” &c. In his opinion Justice Woodward considers the italicised words as having a strong indication of the testator’s desire. Patterson v. Swallow was decided, however, on the ground that the antecedent blank legacies were void, and therefore nothing did or could pass under these bequests; in fact, they were no bequests, for there was no one named to take.

But where the residuary clause does not by its own terms take in a lapsed devise, so as to disclose the intent of the testator to pass the lapsed estate into the residue, the rule is different. This we consider settled: Neff’s Appeal, 2 P. F. Smith 326. That case was elaborately considered by the late Justice Read, and many authorities cited bearing on the question. The language there was: “ The rest (that is all), residue and remainder of my estate, real, personal and mixed, whatsoever, I give, devise and bequeath to my sons,” &c. This broad language was held insufficient to carry the lapsed share into the residuary clause. While broad, it did not indicate a special intent to pass over lapsed shares into the residue. The language of the will of Mary P. Loxley is certainly no stronger, and evinces no certainty of intent to take up lapsed portions of the estate and pass them into the residue.

Judgment affirmed.