
    [Chambersburg,
    October 21,1823.]
    CRAIGHEAD and Wife against GIVEN administrator cum testamento annexo of SEMPLE.
    IN ERROR.
    Testator ordered the residue of his real and personal estate to be sold, and out of the moneys arising therefrom, after the payment of debts and certain legacies, gave legacies to his seven children and grandchildren, and directed that if the money should not .be sufficient, to pay the legacies bequeathed, then the last mentioned legacies to his children and grandchildren should abate proportion-ably, but if it should be more than sufficient, then the residue should be divided amongst the last mentioned legatees proportionably. One of the last mentioned legatees died in the lifetime of the testator; held, that this legacy was lapsed.
    A case was stated for the opinion of the Court of Common Pleas of Cumberland county, to which this writ of error, was directed, in an action for a distributive share, brought by Thomas Craig-head anff Martha his wife, against James Given, administrator, cum testamento annexo of Joseph Semple, deceased, which it wag agreed should be considered in the nature of a special verdict. The court below entered judgment for the defendant.
    
      Joseph Semple, the defendant’s testator, died in December 1811, leaving issue, four children, namely, Martha, intermarried with Robert Beatty, David Semple, Joseph Semple, Jane Semple, and two grandchildren, namely, Martha Sterrett and Elizabeth 
      
      Sterrett, children of John Sterrett and Sarah his wife, which said Sarah died in the life time of her father the testator. By his last will and testament in writing, duly executed, and bearing date the 14th July, 1810, after bequeathing certain legacies he directed as follows.
    And as touching all the rest, residue, and remainder of my estate, real and personal, of what kind or nature soever the same may be, in the county of Cumberland, or elsewhere,- I direct the same to be sold by my executors hereinafter named,- in such manner as they may think best, and if practicable within one year after my decease-; but if not practicable, then as soon after the expiration of one year as it may be possible to dispose'of the same to advantage.For which purpose I do hereby empower my said executors or the survivor of them to sell and dispose of the same, and also to execute all such deed or deeds of conveyance to the purchaser or purchasers of my real estate as may be necessary for securing to him, her or them the right in fee simple, And the money. arising from the sale thereof, my just debts, funeral expenses, and the above mentioned legacies being first paid, I give and dispose of the same in the following manner, to wit:- To my daughter Mar-< tha Beatty 1533 dollars, to David Semple 2044 dollars, to my son Joseph Semple 40S9 dollars, to my two daughters Jane and Eliza Semple each 2044 dollars, and to my two grandchildren Martha Sterrett and Elizabeth Sterrett, children of my daughter, the late Sarah Sterrett, deceased, each 311 dollars. If the money arising from the sale of my estate shall not be sufficient to pay the ahove mentioned legacies, then, and in that case, the deficiency shall be deducted from the legacies bequeathed to Martha Beatty, David Semple, Joseph Semple, Jane Semple, Eliza Semple, and my two grandchildren Martha Sterrett and Eliza Sterrett, each in proportion to their respective legacies; but if the' money arising from the sale of my estate shall amount to more than what is sufficient to pay the above mentioned legacies, then and in that case, the residue shall be divided, amongst the said Martha Beatty, David Semple, Joseph Semple,. Jane Semple, Elizabeth Semple, and my two grand children Martha Sterrett, -and Eliza Sterrett, in proportion to their respective legacies. And it is also to be understood that the legacy bequeathed to my son David Semple, is in addition to what I have already given him before the first day of June in the year of our Lord, 1810; but whatever I shall have given him after the first day of June, 1810, shall be a set-off in said legacy. And lastly I nominate, constitute, and appoint my son Joseph Semple, and James MiCormick, esq. to be my executors.
    After the date of the will and before the death of the testator, his daughter Eliza Semple, a legatee in the will, died unmarried without issue. After the death of said testator, his grand-daughter, Martha Sterrett,- intermarried with Thomas Craighead, who with his wife, were the plaintiffs in this action. Thomas Craig-head and Martha his wife had received payment in full of the specific legacy bequeathed to the said Martha. And both the executors named in the said will, had, since the decease of said testator, died intestate, and letters of administration of the goods and chattels of the said testator, which remained unadministered, by the said executors, with a copy of the said will and testament annexed, had been granted in due form of law to the defendant James Given.
    
    The question submitted for the opinion of the court, was, whether the legacy of 2044 dollars bequeathed by said testator to his daughter Elizabeth, who died in his life time, lapsed by the death •of the said legatee, and since the death of the said testator, remains subject to distribution betvveen the children and grandchildren of the said testator, according to the act of assembly, regulating the distribution of intestate’s estates; and also, whether, in case there is a surplus arising from the sale of the testator’s real estate, after paying the specific legacies, Elizabeth’s share is also lapsed and subject to distribution.-
    If the court shall be of opinion that the said legacy of 2044 dollars, did so lapse, and is subject to distribution as aforesaid, then judgment quod computet to be entered, and auditors to be appointed, by the court, to ascertain and report the sum due to the said Thomas Craighead and Martha his wife in right of the said Martha, as one of the heirs and distributees of the said testator, out of the said legacy, or sum of 2044 dollars. But if the court shall be of opinion that the plaintiff’s are not so entitled, then judgment to be entered for the defendant.
   The opinion of the court was delivered by

Duncan, J.

That a legacy lapses by. the death of the legatee in the life time of the testator, is a consequence known to few testators. It is an event rarely contemplated by any, and seldom provided for. But even the most explicit declaration that the devise shall not lapse, is not sufficient to prevent it: there must be either survivorship, as in a joint devise, orlimitatioh over. The testator Joseph Semple on the 14th July, 1810, after the bequest of certain legacies, directs, that his estate real and personal should be sold by his executors, and after the payment of his debts and legacies, the moneys arising, therefrom should be divided in the following manner, to wit, to his daughter Martha Beatty, 1533 dollars, to David Semple, 2044 dollars, to his son Joseph 4089 dollars, to his two daughters Jane and Eliza, each 2044 dollars, and to his two grand children Martha Sterreit and Eliza Sterrett, children of his daughter Jane, deceased, each 31 i dollars. The property being principally real, there would be an uncertainty, whether, on its sale, it would produce the amount he had bequeathed, or exceed it, and either the one or the other must have been the case. He directs that if the money, arising from the sale should not be sufficient to pay the several legacies, the deficiency should be deducted from the legacies, each in proportion to their share, but if it exceeded, the residue should be divided among the said Martha Beatty, David Semple,. Joseph Semple, Jane Semple, Eliza Semple, and his two grand children Martha Sterrett, and Eliza Sterrett, in proportion to their several legacies. It is contended by the defendant in error, that the share of Eliza Semple, who died in the testator’s life time, did not lapse, but went over to the six surviving legatees, in the same proportion as the original legacies, and such was the opinion of the court below. The disposition of the surplus among the seven legatees could not be made with a view to the death of any one, that a surplus should arise in that event, but with a view to a residuum, after all the legacies were satisfied. They were tenants in common each of their respective legacies: a certain share was devised to each, where there can be no survivorship as in joint tenancy.

That the disposition of the residue contemplated aresidue arising from the death of ány one, is inconsistent with the division of it among all the legatees. To bequeath to Eliza Semple a portion of a residue happening in consequence of her own death, is a construction which can never be supported; yet such would be the fact if this be the just construction. The cases of Bagwell v. Dry, 1 P. W. 700. and 2 Strange 905, Man v. Man, are cases directly in point. In the first, the testator bequeathed the surplus of his personal estate to four, equally to be divided between them, share and share alike. One of the four residuary legatees died in his life time, and the question being to whom this fourth part belonged, the lord chancellor was of opinion, that the testator having devised the residuum in four parts, and one of the residuary legatees having died in his life time, the, devise of the fourth part became void, and was so much of the testator’s estate undisposed of by the will. It could not go to the survivors, because each of them had but afourth part d.eyiséd to him in common, and the death of the fourth residuary legatee could not avail them, as it would have done, had they all been joint legatees, for then the share of the legatee dying in the life'of the testator would have gone over to the survivors, but the residue being devised in common, it was the same as if a fourth part had been devised to each' of the four, which could not be increased by the death of any one of them.

So in Man v. Man, 2 Strange 905, a bequest of all the testators personal estate to A., B., C., and D., after the death of his wife, share and share alike: C. and D. died in the testator’s life time: adjudged, that their shares had lapsed, the testator having appointed that each of his legatees should have a special share. Here the testator has appointed that each legatee shall have a special share, all the seven. Th'is is a clear case of lapsed legacy, and the plaintiffs are entitled to this distributive part under the intestate aet, as undisposed of by the will. There was no person to whom it was limited over on the death of the legatee, in whom it eould vest. The judgment of the Court of Common Pleas is reversed, and judgment quod computet entered for the plaintiffs according to the agreement of the parties in the case stated.

Judgment reversed,  