
    Hatch D. Billingsley vs. Gideon D. Tongue and Thomas O. Tongue.
    There is a manifest distinction between void and lapsed devises or legacies, and our act of 1810, ch. 34, sec. 4, applies only to the latter, and not to the case of a void devise, as where the devisee was dead when the will was made.
    
    The words in this act, “or fail of taking effect,” are used only to repeat by way of explaining and amplifying the same idea as that conveyed by the previous word “lapse.”
    
    A testator devised the residue of his estate to his three children, one of whom, a daughter, was dead at the date of the will, but left children, who survived the testator, and then died intestate. Held:
    That the devise being void as to the daughter; the surviving father of her children could not take in any event; for if her portion fell into the estate and descended to the heirs generally, the interest of her children would descend through their mother, and go to their Uncles on the mother’s side, and not to their father.
    Appeal from the Equity Side of tire Circuit Court for Arme' Arundel county:
    The question in this case arose upon the distribution of the proceeds of certain real estate, sold under a decree in equity, in which Gideon G. Tongue, deceased, held an undivided interest. The appellant, Hatch D. Billingsley, who was the surviving husband of Ann C., one of the children of the deceased, claimed one-third of that portion of the proceeds to which the deceased would have been entitled if living, as heir at law of his (the appellant’s) three infant children, who died intestate, whilst the appellees, the surviving children of the deceased, claimed the whole thereof. The facts upon which these respective claims were based are fully stated in the opinion of this court.
    The court below, (Brewer, J.,) delivered an opinion, in which, after stating the facts of the case, he says:
    “The petitioner, Hatch D. Billingsley, claims the portion of Ann O. Billingsley, (one-third of these proceeds,) as a lapsed legacy to her, by virtue of the acts of 1810, ch. 34, and 1832, ch. 295, contending that his deceased children took her interest by purchase or by statutory transfer, and that on the death of the children it descended to him as an estate by purchase under the act of 1820, ch. 191, sec. 1. Gideon D. Tongue and Thomas O. Tongue contend, that the devise would convey to the three children a tenancy in common in fee, and, therefore, that they took by descent; the two sons directly from their grandfather; and the children of Ann by representation through her, it being, therefore, an estate descending to them on the part of their mother, and at their deaths descending to the uncles on the part of the mother. They contend further, that if the devisees would take by the devise, and not by descent, that the devise to Ann was void, and not a lapsed devise under the act of 1810, and, therefore, in that view of the case, that part went directly to them as survivors, or descended to them and the children of Ann, to the latter on the part of the mother, and so to the uncles on the part of the mother.
    “Both parties admitin their notes that the estate, by the words of the will, constituted a tenancy in common in fee, and without the admission I should be of that opinion. The, testator devises the residue of his estate to persons whom he also designated as his children and heirs. He must have meant to give them the whole estate, for he must have known that they would take the whole as devisees or heirs.
    “1 agree with the counsel for the Tongues, that they and the children of Anti took by descent, the estate devised being precisely the same in quantity and quality as the estate descended. 1 H. Sf J., 478, Philips 0s. Dashiell. 7 Q. Sf J., 71, Medley vs. Williams. Of course the one-third descending to the children of Ann on the part of the mother goes, on their death, to the uncles on the part of the mother, to the exclusion of the father. Being of this opinion, it is unnecessary for me to consider the other points in the case.”
    The court then passed an order ratifying the account, which distributed the whole fund to the Tongues, and from this order Billingsley appealed.
    The cause was argued before Le Grand, C. J., Eccleston and Mason, J.
    
    
      Alex. B. Hagner and Alex. Randall for the appellant, argued:
    1st. That the devise in Dr. Tongue’s Will to Mrs. Billingsley did not lapse or fail of effect,.by reason of her death, before the execution of the will. The act of 1810, ch. 34, sec. 4, provides, that “no devise, legatíy or bequest, shall lapse, or fail of taking effect, by reason of the death of any devisee or legatee named in any last will or testament, or airy codicil thereto, in the .lifetime of the testator, but every such devise, legacy or bequest, shall have the same effect and operation in law, to transfer the right, estate and interest in the property mentioned in such devise or bequest, as if such devisee or legatee had survived the testator.” Mrs. Billingsley died the day before the will was executed, and the first question is, what effect has this fact upon the devise to her? The argument on the other side is that the devise was void, and therefore unaffected by this law. Our view of it, however, is entirely different. This act was passed to cover every case where devises or legacies fail to take effect, regardless of the mode in which that failure shall occur, whether by lapsing or for any other reason. Its language is, that “no devise or legacy shall lapse or fail to take effect.” The words •'fail to take effect, are not unmeaning; they were not inserted without a purpose, but were evidently designed to cover just such a case as the present. The devisee died “in the lifetime of the testator,” and there is nothing in the law which limits its operation to cases of death after the will was executed. By reason of this death the devise would, but for this law, have failed to take effect, but the law comes in and says it shall not fail to take effect for such a cause. The language of the act seems to us to admit of but one interpretation, viz., that wherever a legacy or bequest would, previously to its passage, have lapsed, or failed to take effect, by reason of the death of the legatee or devisee in the lifetime of the testator, no matter whether such death may occur before or after the making of the will, such legacy or bequest shall not lapse or fail to take effect. This interpretation includes the present case, even if the devise would by the previous law be regarded as a void devise. But we further insist, there is no such distinction between a lapsed and a void devise as stated in the argument on the other side. Such a distinction has never been recognised by any decision in Maryland, nor is it settled by the best authorities elsewhere. In support of our views upon this point, we refer to 1 Brown’s Ch. Cases, 84, Maybank vs. Brooks. 4 Strob. Eq. Rep., 180, Hatcher vs. Robertson. 1 Dana, 201, Gore vs. Stevens. 1 Hoff. Ch. Rep., 202, Wright vs. Trustees of Methodist Church. 4 H. & J., 446, Trippe vs. Frazier. 3 H. & McH., 333, Lingan vs. Carroll. 4 Kent’s Com., 542.
    
      2nd. If we are right in the view that the act of 1810 operates upon this devise, notwithstanding the death of the devisee before the will was made, then the effect of this act was to transfer to her children the same interest which she would have received if she had survived the testator. The statute comes in aud operates a statutory transfer to the children. The title which they thus acquired was a title by purchase, and not by descent, and upon their death became the property of their father, under the act of 1820, ch. 191, sec. 1. 7 G. & J., 362, Glenn vs. Belt. 11 Do., 328, Young vs. Robinson. 3 Md. Rep., 194, Gilpin vs. Hollingsworth. 2 Bl. Com., 188, 191.
    3rd. The devise in Dr. Tongue’s will was not to his children as a class, and, therefore, Mrs. Billingsley’s interest did not survive to her brothers. 7 Iredell, 9, State vs. Shannonhouse. 3 Myl. & Craig, 697, Barber vs. Barber. 1 Roper on Legacies, 331.
    
      Nicholas Brewer, Jr., and Coleman Yellott for the appellees, argued:
    1st. That the acts of 1810, ch. 34, sec. 4, and 1832, ch. 295, do not give effect to a devise void ah initio; they relate only to devises good at the date of the will, but which, by the rules of law, would have lapsed by the subsequent death of the devisee in the life of the testator. The distinction between lapsed and void legacies and devises is as old as the law on this subject. In 13 East, 526, Doe vs. Sheffield, there was a devise to the “sisters of J. H.,” and there was but one sister surviving at the time the devise was made. The heir at law claimed the portions which would have gone to the sisters, who were dead at the time the will was made, upon the ground that as to them the devise was a lapsed devise. But it was held by Lord Ellenborough, and the whole court, that it was not the case of a lapsed devise, and such a devise is thus defined: “A devise is said to be lapsed where the devisee dies in the intermediate period between the making of the will and the death of the testator.” In 1 Jarman on Wills, 294, note, it is said: “There isa further distinction between a lapsed and a void deviso. In .the former case the devisee dies in the intermediate time between the .making of the will and the death of the testator; but in the latter the devise is void at the beginning, as if the devisee he dead when the will is ?nade,” The same thing is said in 4 Kent’s Com., 542. See also Lovelass on Wills, 449, in 25 Law Lib., 240. 2 Bouv. Law Dic., 219, 479, Titles, Legacy, Lapsed and Void, 2. 2 Jarman on Wills, 677, 679. 1 Harrington, 524, Fergusson vs. Hedges. 5 Pick., 528, Hayden vs. Stoughton. 4 Iredell’s Eq. Rep., 320, Lindsay vs. Pleasants. In this latter case, where the statute of North Carolina in relation to lapsed devises and legacies is almpst identical in language with pur act of 1810, it was held, that a devise to one not in esse is not within the definition of a lapsed devise, but was a void devise ah initio, and, therefore, not saved by the.statute. In 11 G. & J., 340, Young vs. Robinson, it was conceded by distinguished counsel in argument, that the act of 1810 did not apply to a devise to a “man dead at the date of the will.” See, also, 7 G. & J., 365, 366, Glenn vs. Belt. The words “fail of taking effect,” so much relied upon by the counsel fpr the appellant, are merely explanatory of the preceding word ‘.‘lapse,” and mean nothing more than what is included in it. If we are to adhere to a literal construction of this act, iro one cap be said tp be a testator until he has made a will, find no one cap b.e strictly said to be a legatee or- devisee until there is a will in existence giving him a legacy or a devise.
    
    2nd. If this devise, therefore, is void, and not affected by the act of 181Q, one of tivo results must necessarily follow:— 1st, that the portion of the estate given to Mrs. Billingsley passed by the will to her surviving brothers; or 2nd, that it fell into the estate of the testator and descended to her children as if np will had been made, in which event her children would have taken by descent from her, and the estate having been derived on the part of the mother, the uncles of the children on the mother’s side would take to the exclusion qf the father. In either event, therefore, the appellpes are entitled to the whole fund
   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 intermediate 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.  