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37. Who now owns the house?
A statute of the jurisdiction provides as follows: «If a devisee, including a devisee of a class gift, who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will or fails to survive the testator, the issue of such deceased devisee shall take the deceased's share under the will, unless the will expressly provides that this statute shall not apply. For this purpose, words of survivorship, such as ‘if he survives me,' are a sufficient expression that the statute shall not apply.»
A third grandchild of the testator, who was the child of the testator's predeceased son, had been alive when the testator executed the will, but had predeceased the testator. Under the applicable intestate succession laws, the deceased grandchild's sole heir was his mother.
Under the terms of his duly probated will, a testator devised his house to his «grandchildren in fee simple» and the residue of his estate to his brother. The testator had had two children, a son and a daughter, but only the daughter survived the testator. At the time of the testator's death, the daughter was 30 years old and had two minor children (grandchildren of the testator) who also survived the testator.
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However, class gifts to «issue,» «descendants,» «heirs of the body,» «heirs,» «next of kin,» «relatives,» «family,» or other similar descriptions will automatically include descendants of any pre-deceased members of the class since the description itself includes descendants.
Under the common law doctrine of lapse, if a beneficiary named in a will pre-deceases the testator, the bequest fails, rather than goes to that beneficiary's next-of-kin. The property intended for the pre-deceased beneficiary becomes part of the testator's residuary estate.
Most states have enacted «anti-lapse» statutes. These generally have the effect of abolishing the lapse doctrine and allowing the dead beneficiary's heirs to take that share of the bequest. It will only apply in certain situations, typically when the pre-deceased beneficiary is a relative of the testator.
B is correct. The testator devised his house, which he owned at his death, to his grandchildren as a class gift. The testator was survived by two grandchildren, who became the sole surviving members of the class. The deceased grandchild's interest lapsed because the grandchild, though alive at the time of the will execution, died before the testator.
A is incorrect. The brother of the testator is only entitled to the residue of the testator's estate. The house will pass to the two surviving grandchildren as surviving members of the class and will not fall into the residue of the estate.
C is incorrect. Unless provided otherwise in the will, descendants of the deceased members of the group do not share the class gift. When the class closed, there were two surviving members of the class who will take. Additional children of the testator's daughter will not take.
D is incorrect. Under anti-lapse statutes, the pre-deceased beneficiary's heirs may take that share. The deceased grandchild would qualify under the anti-lapse statute, but he was not survived by any issue who would be substituted for him under the statute.