The first question is, whether the legacy given to the testator’s daughter Hannah lapsed by her death before the death of the testator, or vested, by the limitation over, in the testator’s grandchildren. And we think it very clear, that the legacy vested in the grandchildren, on the death of the testator, by the limitation over to them after the death of the first named legatee. The general rule is, that if a legatee die before the testator, the legacy is lapsed, and sinks into the residuum of the testator’s personal estate. But the rule does not extend to a legacy given over, after the death of the first legatee; for in such case the legatee in remainder is entitled to have it immediately. Such a limitation in remainder of a legacy, or of personal property, is clearly valid according to all the authorities. Toller on Executors, (4th ed.) 304. Bac. Ab. Legacies, E. 1. 1 Roper on Leg. (1st Amer. ed.) 333, 334, 394. 2 Pick. 472. The gift of the remainder to the grandchildren vested the whole legacy in them, as fully as if they had been expressly substituted in the room of e first legatee, in case of her death before the death of the tesiator. This must have been the intention of the testator, and there is no rule of law to prevent its taking effect accordingly.
But this exception to the general rule as to lapsed legacies is not applicable to the legacy of $100, given to the testator’s daughter Hannah, and to the other legacies now in controversy. There is no limitation over of these legacies ; and as Hannah and Martha Ann died before the testator, the legacies to them lapsed, and fell into the residue of the testator’s estate. And the same general rule will apply to the remainder to Martha Ann of the legacy of $400, given to John Prescott for life, if any part of the said legacy should remain at his death. So, also, the legacy to John S. Prescott, given upon condition, falls into the residue of the estate; the same having become forfeited and void by the non-performance of the condition.
The only remaining question is, who are entitled to the. residue of the estate, after payment of the specific legacies. The rule is, that lapsed legacies of personal estate pass to the residuary legatee, if any there be, and if not, to the next of kin. This rule, by the common law, does not apply to lapsed devises *146of real estate. The distinction is founded on another principle of the common law, by which a devise of real estate is limited in its operation to lands of which the testator was seized when he made his will. Hayden v. Inhabitants of Stoughton, 5 Pick. 538. The foundation of this distinction is removed by the Rev. Sts. c. 62, § 3, which provide that “ any estate, right, or interest in lands, acquired by the testator after the making of his will, shall pass thereby, in like manner as if possessed at the time of making the will, if such shall clearly and manifestly appear, by the will, to have been the intention of the testator.” This provision seems to remove the distinction between real and personal estate, so that now all legacies and devises pass to the residuary legatee. This point, however, is not material in the present case ; as, after the making of his will, and before the making of the codicil, the testator had sold his real estate, and it is not stated that he died seized of any real estate. By a clause in the will it was provided, that if the estate of the testator should exceed the amount of the legacies therein given, then they should all be proportionably increased ; and if the amount of the estate should be less than the amount of the legacies, then the legacies should be proportionably diminished; so that the legatees were to take the whole estate, and there could be no residue. But this provision is changed by the codicil, which substitutes other legatees, who were to take the residue of the estate, after the payment of the legacies given by the will, in case the amount of the estate should exceed the amount of those legacies, instead of the former legacies being increased, as provided in the will. By this provision in the codicil, it is clear, we think, that the surviving legatees therein named are entitled to the whole of the residue of the estate, after the payment of the legacies given by the will. For although specific legacies are given by the codicil, yet it is provided, that if the residue shall exceed the amount of the legacies given, the same shall be proportionally increased, so as to include the whole of the residue, after payment of the legacies given by the will. It was manifestly the intention of the testator to dispose of the whole of his estate. The claim, therefore, of his heirs at law cannot be maintained
*147A decree will be made, ordering the administrator with the, will annexed to pay to the grandchildren of the testator, in equal shares, the sum of $500, which was given for the use of Hannah Prescott, and to which they are entitled by the limitation over to them; and further, that he pay the excess and residue of the testator’s estate, that may remain in his hands, (after deducting and paying the legacies given in the will, and not lapsed nor forfeited, and the expenses of administration,) to the surviving legatees named in the codicil, in the proportions therein mentioned.