28. If both the charity and the child claim the residence, to whom should the estate distribute the residence?

At common law, lapse occurs when the beneficiary or the devisee under the will predeceases the testator, invalidating the gift. The gift would instead revert to the residuary estate or be granted under the law of intestate succession.If the deceased beneficiary was intended to inherit part or all of the residuary estate, then that portion of the estate would pass by intestate succession, as though the testator had left no will. This rule is referred to as the doctrine of no residue of a residue, because the portion of the residuary estate that did not itself pass under the will could not be considered part of the residuary estate at all.

Ademption, or ademption by extinction, is a common law doctrine used in the law of wills to determine what happens when property bequeathed under a will is no longer in the testator's estate at the time of the testator's death. For a devise (bequest) of a specific item of property (a specific gift), such property is considered adeemed, and the gift fails. For example, if a will bequeathed the testator's car to a specific beneficiary, but the testator owned no car at the time of his or her death, the gift would be adeemed and the aforementioned beneficiary would receive no gift at all.

B is correct. A deceased person cannot take and hold title to property. If a named beneficiary predeceases the testator and there is no provision in the will for what happens to the gift in that case, the gift to that beneficiary lapses. In this case, the gift to the friend lapsed. The gift of the residence was a specific gift, and the lapse of this specific gift passes the residence through the residuary clause of the will. The charity is the residuary taker. There is no applicable anti-lapse statute which might have substituted the friend's child as the beneficiary of the bequest if the friend were a protected beneficiary under the statute.

A is incorrect. This answer correctly concludes that the charity will prevail but misstates the reasoning for this conclusion. Ademption occurs when a specific gift of property in the will is no longer in the estate at the time of death of the testator. The man made a specific gift of the residence to the friend. At the time of the man's death, the man still owned the residence, and thus there was no ademption. Still, a deceased person cannot take and hold title to property. The specific gift of the residence to the friend, now deceased, lapsed and should pass by way of the residuary clause in the will. The charity is the residuary taker.

C is incorrect. The gift of the residence in the will was to the friend, who was specifically identified in the will. Nothing was said in the will as to who should receive the residence if the friend predeceased the man, and thus the gift lapsed and passes by the residuary clause to the residuary beneficiary, the charity. The will's meaning is clear. Extrinsic evidence cannot be used to rewrite the will. The will contains no ambiguities which might allow in extrinsic evidence.

D is incorrect. A deceased person cannot take and hold title to property. The specific gift of the residence to the friend lapsed and should pass by way of the residuary clause in the will. The man could have noted in the will who would have taken the property in the event the friend did not survive him and thus have prevented the lapse. But because the man did not state what would happen if the friend did not survive him, the gift lapsed. The charity is the residuary taker.