LAPSED DEVISE - The Law Mind Legal Dictionary

LAPSED DEVISEAuthored

The Law Mind • 1039 words

Definition

A lapsed devise is a testamentary gift of real property that fails because the intended recipient (the devisee) dies before the testator. When a devisee predeceases the testator, the devise lapses — meaning the gift cannot take effect — because a dead person has no legal capacity to receive property. The subject matter of the lapsed devise is treated as if the testator never disposed of it in the will.

The default consequence of lapse depends on the will's structure: if the will contains a residuary clause, the lapsed devise typically falls into the residue and passes to the residuary beneficiary. If there is no residuary clause, or if the residuary devise itself lapses, the property passes by intestate succession as undisposed-of estate.

This default rule is subject to two major exceptions: (1) a contrary intention expressed in the will may redirect the property, and (2) anti-lapse statutes — enacted in virtually every American jurisdiction and in England by statute — may save the gift from failing entirely by substituting the devisee's descendants.

Common Confusion

LAPSED DEVISE vs. VOID DEVISE: A lapsed devise and a void devise both fail, but for different reasons at different times. A devise is void from the outset when it is legally incapable of taking effect at all — for example, a devise to a person who was already dead when the will was executed, or a devise of property the testator had no power to give. A lapsed devise, by contrast, was valid when made but fails subsequently because the devisee dies after the will's execution but before the testator does. The distinction matters because some anti-lapse statutes apply only to lapsed devises, not void ones, though courts and statutes are not uniform on this point.

LAPSED DEVISE vs. LAPSED LEGACY: These terms are conceptually parallel but apply to different property. A lapsed devise concerns real property; a lapsed legacy (or lapsed bequest) concerns personal property. Historically, the distinction was significant because real and personal property followed different rules of descent and distribution. Modern consolidated statutes in many jurisdictions treat them identically, but researchers working in historical sources must track which property type is at issue.

Why It Matters in Research

The most important research trap with lapsed devises is the anti-lapse statute problem. Every modern American jurisdiction has enacted an anti-lapse statute that saves certain lapsed devises by substituting the deceased devisee's issue. The scope of these statutes varies significantly: some apply only to devises to the testator's children; others extend to all relatives; a few reach non-relatives. When reading historical cases or treatises that state the common-law rule — that a lapsed devise falls into residue or intestacy — researchers must verify whether an anti-lapse statute would now change that outcome in the jurisdiction under study.

Historical sources, including the three shelf dictionaries here, reflect the pre-statutory common-law default and note the English statutory exception created by the Wills Act 1837 (1 Vict. c. 26) as a novelty or recent development. American anti-lapse statutes came later and vary considerably from the English model. A researcher reading Bouvier or Burrill and finding a statement of the residuary-clause rule should treat it as the baseline, not the current rule.

The real-versus-personal property distinction is another historical trap. In older sources, "devise" was technically limited to real property gifts, while "legacy" or "bequest" covered personal property. Lapse doctrine developed somewhat separately for each category under common law. Modern UPC-influenced statutes and many state codes have merged these categories, but pre-20th-century cases and treatises often analyze them on different tracks. Researchers must confirm what type of property is at issue before assuming that a lapsed-devise case applies to a lapsed-legacy question.

The residuary-clause rule itself has nuances that historical dictionaries gloss over. At common law, a lapsed specific devise fell into residue only if the residuary clause was broad enough to capture it; courts sometimes construed residuary language narrowly. And if the residuary devise itself lapsed — because the residuary devisee also predeceased the testator — the common law sent the entire undisposed-of portion to intestacy, a harsh result that modern anti-lapse statutes frequently address by applying to residuary devises as well.

Historical Dictionary Support

Black's, Bouvier's, and Burrill's agree on the core definition: a lapsed devise fails because the devisee dies before the testator, and the property is treated as undisposed of. All three cite the same two authorities — Stephen's Commentaries and Kent's Commentaries — suggesting a shared doctrinal lineage drawn from the same small group of treatise writers.

Bouvier's is the most practically informative of the three, adding the residuary-clause default rule and specifically noting the English statutory exception under the Wills Act 1837. Burrill's flags the English exception but frames it cautiously as something "lately established," consistent with its mid-19th-century vantage. Black's is the sparest, stating the rule and the property-treatment consequence without elaboration.

What all three sources omit is the complexity introduced by American anti-lapse statutes, which were proliferating at the time these dictionaries were compiled but had not yet achieved the near-universal adoption they have today. Researchers should not rely on these entries as statements of current law and should treat them as capturing the common-law baseline from which statutory modification has substantially departed.

Jurisdictional Note

Anti-lapse statutes now govern lapsed devises in virtually every U.S. jurisdiction, but their scope, trigger relationships, and treatment of class gifts differ materially from state to state. Jurisdictions following the Uniform Probate Code generally apply anti-lapse rules broadly; others retain narrower common-law-adjacent approaches. Researchers working across jurisdictions should verify the specific statute and any case law interpreting its scope before assuming that lapse doctrine operates uniformly.

Encyclopedia Cross-Reference

Contracts — Termination of Offer (Revocation, Rejection, Counteroffer, Lapse, Death) (The Law Mind Contracts & Commercial Law Encyclopedia) — for the conceptual parallel between lapse by death in offer-and-acceptance doctrine and lapse by death in testamentary law; useful background on how legal systems handle the termination of entitlements upon a party's death before a transaction completes.

LAPSED DEVISEmain

Black's Law Dictionary • 1891

A devise which fails, or takes no effect, in consequence of the death of the devisee before the testator; the subject-matter of it being considered as not disposed of by the will. 1 Steph. Comm. 559, 4 Kent, Comm. 541.

LAPSED DEVISEmain

Bouvier's Law Dictionary • 1928

A devise which has lapsed, or does not take effect because of the death of the devisee before that of the testator. The subject-matter of the lapsed devise will, if no contrary intention appear, be included in the residuary clause (if any) contained in the will. In England, by stat. 1 Vict. c. 26, §§ 25, 26, 32, 33, if the devise be to children or other issue of the devisor, and the issue of the devisee be alive, the devise will not lapse, if no such intention appear in the will. A devise always lapses at common law if the devisee dies before the testator, and such was the general rule in this country; 37 N. Y. 54; 2 Yeates 525; but in many if not all the states, if made to a son or grandson of the testator, it takes effect, by force of statute, in favor of his heirs, if he die before the testator. In North Carolina, a devise to a child dying before the testator does not lapse, but goes to the issue of such child; 107 N. C. 507: so in Massachusetts, in the case of a devise to a child or other relative; 3 Washb. R. P. *523; 101 Mass. 38. In Maryland, the provision against lapse goes much further, and it is provided that no devise or bequest shall fail by reason of the death of the devisee or legatee before the testator, and it takes effect in like manner as if they had survived him; 6 Har. & J, 54. See 1 Jarm. Wills, 6th Am. ed. *307, n.; 4 Kent 541. In regard to a lapsed devise where the devisee dies during the life of the testator, the heir of the devisee will not take; 1 Dana 201; but the estate will go to the testator's heir, notwithstand- ing a residuary devisee. But if the devise be void, as where the devisee is dead at the date of the will, or is made upon a condition precedent which never happens, the estate will go to the residuary devisee, if the words are sufficiently comprehensive; 2 Vern. 394; 15 Ves. 589; 3 Whart. 477; 1 Harring. 524; 4 Kent 541. But some of the courts hold in that case even, that the estate goes to the heir; 6 Conn. 292; 3 Jones, Eq. 141; 4 Ired. Eq. 320; 18 Md. 415, where it was said that there was no solid distinction between a lapsed and a void devise, and that in both cases the heir at law should take, and not the residuary devisee. When the devise is to the person ceased. with such words as " and his heirs" person de added, they are generally held to be words of limitation, and not of description. So a devise of the proceeds of land to three per- sons, one-third to each, and to "their heirs respectively for ever," lapsed on the death of one as to his share, the word heirs desig- nating the estate, not the takers; 36 W. N. C. Pa. 247; so where a residuary devise was to two persons, "their heirs and assigns"; 162 Mass. 448. The rule that devises lapse by the death of the devisee is not changed by adding to the devise the words " to have and to hold the same to them, their heirs and assigns for ever"; 118 N. Y. 396. And where land was devised to a daughter for life and then to be "equally divided ainong the lawful heirs of" another daughter, it was held that the word heirs must be taken in a technical sense, and as the last mentioned daughter was alive at the death of the first, the devise to the heirs lapsed; 1 Rich. Eq. 396. In case of gifts to a class, the rule is that there is no lapse, but they go to the other members of the class; Theobald, Wills 643. It is, however, held that the gift is not to a class if the members of the class are named; 11 Sim. 397; 2 J. & H. 656; nor if to "five daughters of A" or "my nine children"; 9 Ch. D. 117; 15 Ch. D. 84; and where the residue was given to sons named, there be- ing nothing to show that testator intended otherwise, they took as individuals and not as a class, and the share of the son who died before his father's death lapsed, and passed as intestate real estate; 15 R. I. 138. See LAPSED LEGACY. In case of a devise to two as joint tenants, if one die before the testator, where sur- vivorship in a joint tenancy has been abol- ished, his share has been held to fall in the residue; Wins. Eq. 89. Where land was devised to a son who was also appointed executor, and he died and the testator by codicil appointed another executor, refer- ring to the death of his son, it was held that the devise did not lapse, and should be construed as a devise to the son's heirs; 6 Dana 51. A devise to one for life with a remainder does not lapse by the death of the first taker before that of the remainderman; 15 Ark. 682. The refusal or incapacity of the first taker of a devise or legacy to several in succession does not cause it to lapse, but it passes to the next; 28 N. H. 459; 43 id. 17. If one is appointed by will to take in case of the death of the first devisee, and on that event, the appointee can take as contem- plated by the will, there will be no lapse, although the devisee dies before the testa- tor, but the ulterior gift will take effect immediately on testator's decease as a direct unconditional gift; 14 B. Mon. 333. A devise in trust

LAPSED DEVISEmain

Burrill's Law Dictionary • 1870

A devise which fails, or takes no effect, in consequence of the death of the devisee before the testator; the subject matter of it being considered as not disposed of by the will. 1 Steph. Com. 559. 4 Kent's Com. 541. An exception to this rule has lately been established in England, in favor of the issue of a devisee. I Steph. Com. 559, 560.

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