Chief Justice Clayton delivered the opinion of the court.
Clayton, Chief Justice.“Mary James being seized in fee of the premises in question by her will duly executed, dated 30th July, 1831, gave and devised to “Saint Andrew’s Church in Wilmington, all a certain lot of land therein described, to have and to hold the use of the said house and lot to the said church forever; but not to be sold on any account whatever.” And after bequeathing sundry legacies, there is this clause in her will:—“Item, I give, bequeath and devise to William Ball and Mary Ball, children of James Ball, deceased; and to John McKninght all the residue of my estate real and personal of whatever kind it may be.” The lessors of the plff. are the residuary devisees.
It is not contended in this case that the devise to Saint Andrew’s Church, passes any estate in the premises in question to the church; but it is admitted that the devise is void by the laws of this state. That question was decided at the last May Term in Kent, in the State use of Wiltbank et al. vs. Bates. The question here is, who take? the heirs at law of Mrs. James, or her residuary devisees?
Since the case of Doe on the demise of Morris vs. Underdown, Willes 293, that question seems to be completely settled in England. In that case the distictiou, as far as we can ascertain, was first established between a lapsed devise, and a void devise. The principles laid down by the chief justice in that case were these: that the intent of the testator ought always to be taken as things stood at the mak*529ing of his will, and is not to be collected from subsequent accidents which the testator could not then foresee; and that when a testator in his will has given away all his estate and interest in certain lands, so that if he were to die immediately nothing remains undisposed of, he cannot intend to give any thing in these lands to the residuary devisee. This latter rule would govern all cases of lapsed devises; for if the testator were to die immediately upon the making of the will there would be nothing undisposed of, and the devisee would take; but if the devisee were to die between the making of the will, and the death of the testator, the devise would lapse and the heir at law would necessarily take in preference to the residuary devisee, for it was not undisposed of at the making of the will, but the devise was rendered inoperative by a subsequent accident—the death of the devisee. This is not so in the case of a void devise; for there at the making of the will nothing passes, nothing is disposed of, and the residuary devisee under the clause “all the residue of my estate” takes, and not the heir at law. In Doe lessee of Stewart vs. Sheffield, 13 East 536, this is considered as the settled law; and in Doe on the demise of Wells and others vs. Scott and another 3 Maulé and Sel. 300, Lord Ellenborough in delivering the judgment of the court recognizes the authority of the two preceding cases as “admitted law” on the subj’ect.
Macbeth and Wales, for the heirs at law. Gray and Read, Jr. for the residuary devisees. Booth and J. «/2. Bayard, for the church.We are not unaware of the American decisions on this subj’ect in 6 Conn. Rep. 292 and in Lingan vs. Carroll, 3 Har. and McHen. 333; but we prefer following the authorities which we have cited. The heirs at law do not appear to have been obj’ects of the testator’s bounty; they are no where mentioned in her will. This circumstance is not relied on in forming our j’udgment, but merely to show that the testatrix did not desire that her heirs at law should derive any benefit from her estate. Our decision is founded upon the authorities which we have cited, and upon the principles established by them. Our opinion is therefore for the residuary devisees, and judgment is accordingly given for the plffs. in the case of the lessee of McKnight and others vs. Hedges; and in the other case, lessee of J. Ferguson and others the heirs at law of Mary James against the same deft, that judgment be given for the deft.”