construed this bequest to mean that he gave his wife what she would have received if he had died intestate11. In a will a man bequeathed to his wife his house and all his personal property "to her sole use forever," and farther he provided that she should have the use of all the moneys during her natural life; that after her death a specified legatee should have $500 out of any money that she might have at her death; and finally that the residue of the money and a mortgage, which was agreed should be considered money, should be divided among certain other legatees, the court decided that the widow was entitled to the possession and management of the fund represented by the mortgage and the word "use" does not mean interest, but enjoyment42. Where a will required the executors to put up a building on certain land, and provided that, "should it become necessary to sell real estate for the purpose of building," they might sell certain other specified premises and where the lot and buildings were to go to the testator's grandson, and in the event the latter died under eighteen, "all the real estate" was to go to the testator's brother, but the grandson dies at the age of fifteen, and his administrator claimed a quantity of personalty, not specifically bequeathed by the will, as belonging to the estate of his intestate as his grandfather's sole heir at law, the court decided that the will evidently intended that the residuum of personalty was to be used in building the stores, and that it therefore went with the lot on which they were to be put up, to the testator's brother43. A clause in a will giving testator's wife so much of his property, real and

41. Kelly v. Reynolds, 39 Mich. 464.

42. Patterson v. Steward, 38

Mich. 402.

43. Allen v. Stead, 38 Mich. 756.

personal, as is allowed by law to widows in cases where no will is made, or in lieu of personal property allowed her by law, $500 to be taken by her in case she so elect in lieu of said personal property, is construed to mean that the "personal property allowed by law," to which the sum of $500 is made an alternative, refers to the specific property to the value of $450 which by law the widow is allowed to select44.

§136. Cumulative and Substitutional Legacies.

Cumulative and substitutional legacies are such legacies, made by will or by will and codicil or codicils to the same person or persons in that the two gifts are made so that the intention of the testator in the second legacy was to make it either additional or to be given in place of the first, i. e., cumulative or substitutional. Thus, where two legacies are bestowed, one in a will and the other in a codicil, the latter was declared substitutional under the evidence44a.

§137. Ademption. Advancement.

A disposition may fail because it is adeemed or lapsed. An ademption takes place where a testator bequeaths to another a sum of money, and previous to his death, he pays to such person the same amount as he bequeathed, upon the express understanding that it was to discharge the bequest. In such case the legacy is said to be adeemed. The general rule is that the intention must be expressed or apparent that the testator pays the money in discharge of the bequest, but to this rule there is an exception, where the testator is a par

44. Kinney v. Kinney, 34 Mich. 250.

44a. Sondheim v. Fechenbach, 137 Mich. 384, 100 N. W. 586.

ent of or stands to the legatee in loco parentis. In such case the payment would be presumed to be an ademption of the legacy, i. e., a presumption arises that the testator (a parent) intended to adeem or revoke, in whole or pro tanto, that which he had given by legacy to a child by making payment of money or property after the bequest, and during his life time, to this legatee. The object of this rule is to procure an equality among the heirs. But one of the limitations placed upon this rule is that the presumption can not be applied to a residuary bequest, because the courts will not presume that legacy of a residue, or other indefinite amount, had been satisfied by an advancement, as the testator might be ignorant whether the benefit that he was conferring equaled that which he had already willed, and another limitation was that the doctrine of an ademption could not apply unless the advancement was ejusdem generis with the legacy, but where it clearly appears that the intention of the testator was to adeem pro tanto a residuary bequest previously made by a conveyance of real estate to the child, the ademption was declared valid45.

§138. Lapsed and Void Legacies. Survivorship. Substitution.

Lapsed legacies are such that fail when the beneficiary dies in the lifetime of the testator, or before the gift vests. The rule relating to lapsed devises and legacies, that prevailed before the statute, defeated, in most cases, the intentions of the testator. In general he made his will with reference to the objects of his bounty as they existed at

the time, and as though his will took effect at the date of its execution, not apprehending that a lapse would occur in case any of them should die before himself, unless some express disposition should be made in anticipation of such event. The statute was passed to remedy such disappointment, and should receive a liberal construction, so as to advance the remedy and suppress the mischief. The common law rule as to gifts to classes in general was that the children and the descendants of such deceased members could not take in place of their ancestor. This rule has been modified by statute16 which provides that when a devise or legacy shall be made to any child or other children or other relation of the testator, and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given by the will, in the same manner as the devisee or legatee would have done, if he had survived the testator, unless a different disposition shall be made or directed by the will. In regard to lapsed legacies the law has always treated them as part of the general body of the estate, so that they pass to the residuary legatees. A lapsed legacy is in law no legacy, for residuary purposes. The statute1 applies in case where a will devised real estate in equal shares to the brothers and sisters and to those of the wife without naming them18. Legacies are not saved by the statute from lapsing where the legatee dies before the testator19. Where in contemplation of marriage a woman deeds her property to her intended husband and thereupon he executes a will devising it to her, and they intermarry

46. C. L. '97. §9288.

47. C. L. '97. §9288.

48. Strong v. Smith, 84 Mich.

567, 48 N. W. 183.

49. Mann v. Hyde, 71 Mich. 278, 39 N. W. 78.

subsequently, the inference is that they intended that the survivor should have the property. There is no devise over in the event of her death, and no declaration by the testator that the devise should not lapse. In such case, the property devised descends to the heirs or residuary legatees of the testator50. It is established that the estate vests at the death of the testator where there is no provision in the will to the contrary and for that reason the legacy does not lapse by death of the legatee before probate of the will51. Legacies that are void because of some positive rule of law are such as are against the rules of perpetuities 52. The rules concerning the devolution of void estates are the same as those relating to lapsed legacies. The property descends the same as if the testator died intestate where no residuary provision is made in the will. Where a statute52a declares void all beneficial devices, legacies and gifts whatsoever made or given in any will to a subscribing witness, unless there be two other competent, subscribing witnesses to the same, the legatee under the void legacy is competent as a witness52b

The common law rule is that the personal estate is the primary source from which the payment of legacies is made, unless the intention of the testator can be otherwise clearly

50. Williams v. Circuit Judge, 79 Mich. 539. See Hibler v. Hibler, 104 Mich. 274.

51. Jersey v. Jersey, 146 Mich. 660, 110 N. W. 54.

52. State v. Holmes, 115 Mich. 456, 73 N. W. 548.

52a. C. L. 97, §9268. All beneficial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto shall be wholly void, unless there be two other competent

subscribing witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts shall not prevent his creditors from being competent witnesses to this will.

52b. Rue High's appeal, 2 Doug. 529; Finegan v. Theisen, 92 Mich. 178. See Abrey v. Duffield, 149 Mich. 249; Frazer v. Jennison, 42 Mich. 206, Lawyer v. Smith, 8 Mich. 424.