Waln's Estate , 156 Pa. 194 ( 1893 )

Opinion by

Mr. Justice Mitchell,

It is conceded that the share of the residuary bequest left to testator’s sister Ellen having lapsed by her death during his lifetime, he died intestate as to that, and it goes to his next of kin and not to the other residuary legatees. The only question therefore is whether the share of Edward follows the same course. Is there any substantial difference in regard to its effect, between a lapsed or a void residuary bequest, and one expressly revoked?

The English cases apply the same rule to both. Thus in Cresswell v. Cheslyn, 2 Eden, 123, the testator appointed his daughter Mary one of the residuary legatees, but afterwards by a codicil revoked that appointment. The other residuary legatees claimed that their shares were thereby increased, and the argument was expressly made that a codicil is a republication of the will, which should be construed as if then rewritten with the revoked legacy omitted. Logically it is difficult to escape this conclusion, but Lord Chancellor Northing-ton held that it could not prevail, saying, “the testator has made no new devise, by the codicil, of the share which he has revoked from his daughter Mary, and therefore the sons can have no greater interest than they had by the original will.” This decision met with criticism, but does not seem ever to have been modified. On the contrary in Skrymsher v. Northcote, 1 Swanst. 566, where there was also an express revocation by codicil of part of the residuary bequest, Sir Thomas Plumer, M. R., held that the revoked share went to the next of kin, and in his opinion, after stating the rule, using the general word “ fails ” in connection with the disposition, he gives an illustration of a lapse, without taking any notice of a distinction between a lapse and an express revocation, which was the ease before him. The rule, as he expresses it, is that “ part of the residue of which the disposition fails -will not accrue in augmentation of the remaining parts, as a residue of a residue, but instead of resuming the nature of residue, devolves as undisposed of.” And this whether the failure arises because the gift is void, or lapsed, or revoked.

The English rule, as we said in Gray’s Estate, 147 Pa. 67, does-not commend itself to sound reasoning, or to the preservation of the testator’s actual intent, but we found it recognized and accepted in our own cases before these particulars in its application arose, and we felt ourselves bound by it. The distinction between lapse and revocation, though logically clear, is thin, and especially so in the present case where the lapse is expressly assigned by the testator as the reason for the revocation. It has little practical bearing on what should be the only object of testamentary construction, the actual intent of the testator. As we said in Gray’s Estate, supra, we think it better not to draw subtle distinctions but to let the rule stand entire, as it was left by our predecessors.

Decree affirmed.