NEWBOLD against PRICHETT, 2 Whart. 46

The opinion of the Court was delivered by Sergeant, J. It is impossible to entertain a doubt on the proper construction of this act of assembly, when its object is considered. The rule of law was, that by the death of a devisee or legatee in-the lifetime of the testator, the devise or legacy lapsed; and those who might have derived a benefit under him, in case he had survived the testator, were deprived of it.

When such person left issue, and the testator was their lineal ancestor, it seemed hard that the accident of death, perhaps a few days before the testator, should cut them off: especially when others participated in the bounty of the testator, whilst his own descendants were excluded by misfortune alone. The act therefore declares that there shall be no lapse; but the devise or legacy shall be good and available in favour of such issue, with like effect as if such devisee or legatee had survived the testator.

It operates to remove the disability under which the issue laboured, of setting up a derivative title under one in whom no primitive title had vested; or in other words, makes the devisee or legatee a stock or propositus, not to own or control the right, but to transmit it: so that the issue take whát he otherwise would have taken. If the doctrine of the defendants were admitted, so far from conferring a benefit on the issue, it would enable the devisee or legatee, to defeat them by his will, or other disposition of the property.

And it may be also remarked, that if a benefit was contemplated to the devisee or legatee himself, there is no reason why it should not be conferred on him, whether he had issue or not. It is plain, that it was for the issue only, the law was passed. They are to take with like effect, as if the devisee or legatee had survived the testator; but it is only they who are to take. And where there are no issue, a lapse occurs as before. Another question is made, viz. on that clause in the will of E, B.

Prichett, by which she bequeaths the moneys due or to become due, from the estate of her grandmother.' Certain real estate had belonged to her grandmother, Á. C. Prichett, and after her decease was the subject of proceedings in partition, and was sold and converted into money, before E. B. Prichett made this will: and the question is, whether the clause embraced these moneys. The language used, seems correctly to describe the fund: for as E. B. Pritchett then owned it, it consisted of moneys due or to become due from or out of the estate of her grandmother.

We have no- ground laid before us to limit the construction, so as to exclude that which it is presumed the testator knew was the nature of the fund at the time of making her will, and which the words employed sufficiently describe. Judgment for plaintiff, when the amount is ascertained according to the case .stated.