LAPSED LEGACY - The Law Mind Legal Dictionary

LAPSED LEGACYAuthored

The Law Mind • 1085 words

Definition

A lapsed legacy is a testamentary gift that fails and cannot take effect because the legatee — the person named to receive the bequest — died before the testator or before the time prescribed for payment of the legacy. When a legacy lapses, the gift does not pass to the deceased legatee's heirs or estate; instead, it ordinarily falls into the residuary estate and is distributed according to the residuary clause of the will, or, if none exists, according to the laws of intestate succession.

A legacy may lapse for reasons beyond the legatee's death. It also fails when the legatee's legal capacity or willingness to receive the gift ceases to exist before a vested interest is acquired — as where the legatee disclaims the gift or becomes legally incapable of taking before the interest vests.

Common Confusion

LAPSED LEGACY vs. LAPSED DEVISE: These terms are frequently treated as interchangeable, but they are not. A legacy is a gift of personal property by will; a devise is a testamentary gift of real property. When a devise lapses, the land generally descends to the testator's heirs at law under the rules of intestate succession rather than falling into the residuary estate. Historically, this distinction was consequential because real and personal property followed entirely separate lines of descent. Most modern anti-lapse statutes do not always eliminate this distinction — researchers must check whether a given jurisdiction's statute applies equally to both devises and legacies.

LAPSED LEGACY vs. VOID LEGACY: A lapsed legacy is one that was originally valid but subsequently failed — the legatee existed at the time the will was made but predeceased the testator. A void legacy is one that was never capable of taking effect, typically because the intended legatee did not exist or was legally incapable of taking at the time the will was executed. The practical distinction matters most when applying anti-lapse statutes, which typically save lapsed gifts but do not reach void ones.

Core Elements

A legacy lapses when the following conditions converge:

A valid testamentary gift exists at the time the will is made.
The legatee is living and capable of taking at the time of execution.
Before the legacy vests or becomes payable, the legatee dies or loses the capacity or willingness to take.
No anti-lapse statute or substitutional gift in the will operates to redirect the bequest.

Why It Matters in Research

The doctrine of lapse is deceptively simple in its classic form but becomes complex in the research context for several reasons.

Anti-lapse statutes have transformed this area in virtually every American jurisdiction. These statutes — typically saving lapsed gifts to close relatives of the testator by substituting the deceased legatee's descendants — mean that the common law rule of lapse now operates primarily as a fallback where the statute does not apply. Researchers working with 19th- and early 20th-century sources will encounter the pure common law rule without any statutory overlay; modern cases often turn entirely on statutory interpretation. When reading historical sources, do not assume the common law lapse rule reflects current law in any given jurisdiction.

The residuary clause is the critical pivot point. Under common law, a lapsed specific or general legacy falls into the residue. But what happens when a residuary legacy itself lapses? Historically, a lapsed residuary gift passed by intestacy — there was no "residue of the residue." Modern courts and some anti-lapse statutes have modified this rule, and the outcome varies considerably by jurisdiction.

The timing question — exactly when a legacy vests — carries enormous practical weight. If a legacy vests immediately upon the testator's death (as most general legacies do), the question is simply whether the legatee survived the testator. Contingent legacies and those payable at a future date raise the harder question of whether the legatee must survive to the payment date or only to the testator's death.

Researchers tracing case law will also encounter the distinction between lapse and ademption (where the subject matter of the gift no longer exists) — the two doctrines are sometimes confused in older opinions because both result in a failed legacy, but their legal triggers and consequences differ.

Historical Dictionary Support

The three historical dictionaries agree on the core definition: a lapsed legacy is one that fails because the legatee dies before the testator or before payment. Burrill offers the most economical formulation, limiting lapse strictly to the legatee's death before the testator. Black's adds the significant detail that the legacy may also fail when death occurs before the legacy becomes payable — a meaningful extension for contingent bequests.

Bouvier's is the most analytically complete of the three. It draws the express distinction between lapsed devises and lapsed legacies, and it includes the broader formulation — drawn from New York case law — that encompasses not only death but any cessation of the donee's capacity or willingness to take before a vested interest is acquired. Bouvier's also preserves one nuanced exception: where a legacy is given in satisfaction of a debt owed by the testator, it does not fail merely on failure of payment of the debt, provided the legatee survives the testator.

What none of the historical dictionaries address is the statutory displacement of the lapse doctrine. Anti-lapse statutes, now universal in American jurisdictions, represent the single most important development in this area of law since these dictionaries were compiled, and researchers relying solely on historical dictionary definitions will encounter a materially incomplete picture.

Jurisdictional Note

Every American jurisdiction has enacted some form of anti-lapse statute, but the statutes vary significantly in scope — particularly in which relatives of the testator qualify for protection, whether the statute applies to devises as well as legacies, and whether it extends to class gifts. States adopting the Uniform Probate Code provision (UPC § 2-603) tend to have broader anti-lapse protection than those retaining older statutory formulations.

Encyclopedia Cross-Reference

Contracts -- Termination of Offer (Revocation, Rejection, Counteroffer, Lapse, Death) (The Law Mind Contracts & Commercial Law Encyclopedia) — for analogous lapse doctrine in the offer-and-acceptance context; conceptually distinct but useful for understanding lapse as a unifying principle across doctrinal areas.

LAPSED LEGACYmain

Black's Law Dictionary • 1891

Where the legaten dies before the testator, or before the legacy is payable, the bequest is said to lapse, as it then falls into the residuary fund of the es- tate.

LAPSED LEGACYmain

Bouvier's Law Dictionary • 1928

A legacy which, on account of the death of the legatee be- fore the period arrives for the payment of the legacy, lapses or deviates from the course prescribed by the testator, and falls

LAPSED LEGACYmain

Bouvier's Law Dictionary • 1928

into the residuum. 1 Wms. Ex., 7th Am. ed. *1071; 10 S. & R. 851. A legacy which has never vested or taken effect; one which, originally valid, after- wards fails, because the capacity or will. ingness of the donee to take has ceased to exist before he obtained a vested interest in the gift. 126 Ν. Υ. 615. A distinction exists between a lapsed devise and a lapsed legacy. A devise which lapses does not fall into the residue unless so provided by the will, but descends to the heir at law; on the contrary, personal property passes by the residuary clause, where it is not otherwise disposed of; Beach, Wills 316; 2 Bouv. Inst. 2158, 2116 ; 15 Ves. 709; 2 Mer. 393; 3 Whart. 477. See LAPSED DEVISE. A lapsed legacy passes by a general re- siduary clause; 27 Abb. N. C. 487; so also did a legacy which lapsed because it was void; 63 Hun 352. A lapsed or void legacy goes to the residuary legatee unless an in- tention to the contrary clearly appear; 1 Sm. & M. 589; 8 Edw. Ch. 79; 2 Tayl. 315; 2 Root 487. The reason assigned for this difference is that a bequest of personal property refers to the state of the property at the time of the death of the testator, and that a devise operates only on land of which the testator was seised when he made his will; and it is not to be presumed he intended to devise by a residuary clause, a contingency which he could not have foreseen, nor to embrace in it lands contained in a lapsed devise; 1 Dana 207; Willes 298; 6 Conn. 292; 3 Harr. & McH. 333. "How far the alteration of the law of those states where after-ac- quired lands may be devised will destroy this distinction, it is difficult to say." 1 Bouv. Inst. 2150. The Pennsylvania act of 1879, June 4, P. L. 88, made the law respecting the devolu- tion of a lapsed devise the same as that of a lapsed legacy, but it was held that this applied only to lapsed specific devises in the body of the will, and that as to lapsed shares of the residue no change was in- tended; 15 W. N. C. Pa. 417. And the same provision exists, except where the will requires a different construction, in Virginia, North Carolina, West Virginia; but in the last state, if there is no residuary devisee, it goes to the heir at law. The common-law distinction between lapsed.devises and lapsed legacies with ref- erence to falling into the resíduum has been abrogated by statute in New York, and lapsed devises as well as lapsed legacies fall into the residuum; 152 Ν. Υ. 475 In Kentucky, in case of lapse, neither real nor personal property passes as part of the residue, but both are intestate prop- erty, unless the contrary intention appear in the will. Where a testator gave a share of his residuary personal estate to his widow who took under the will, and another share to a daughter who died before him without issue, it was held that the testator died in- testate as to the share given to the daugh- ter, and that the widow was entitled to one-third of it under the intestate laws; 82 Pa. 428. Where the rent of a house was given for life to testator's daughter, and at her death to be sold, the proceeds to go to her chil- dren when twenty-one years of age, and the income meanwhile to be applied to their maintenance, it was held that the legacy to the children was vested, and on their death in the lifetime of the mother there was no lapse, but the property vested in the life-tenant in fee as the heir of her children as against the heir at law of the original testator; 19 Wall. 167, reversing 7 D. C.226. If a legacy is payable out of real estate in consequence of a deficiency of personal property, it will go to the heir at law in case of lapse, and if the personal estate is sufficient to pay debts and legatees, it will go to the residuary legatee; 9 Paige 94. A legacy to one for life with remainder to another does not lapse upon the death of the first taker during the testator's life; 4 Desaus. 305; 8 Ired. Eq. 581. If a legacy is payable out of a particular debt due the

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