Lingan v. Carroll

THIS was an appeal from a decree of the court of chancery,-passed the 17th of May, 1791, dismissing the bill of the complainant. The bill was brought by the residuary devisees of James Maccubbin, against the executors of his brother and heir, to compel an account of the profits of the real estate into which the heir had entered, supposing the devise of it in trust to be void, and that it was not given over to the complainants by the residuary clause. It appears that the testator, by his will, dated in 1774, devised all his real estate in Maryland, and the reversion of other real estate in Pennsylvania, which he devised to Magdalen Devine, for life, unto the trustees of the college, academy and charitable school of Philadelphia, and their successors, in trust, to the uses declared particularly by the will. The residue of his estate, real and personal, not therein before disposed of, he gives one moiety to the children of his sister Lingan, to be equally divided among them, and in case any of them shall die unmarried and without issue, his or fer share-to be divided among the survivors. The other moiety was devised, in the same words, to the children of Mrs. Wood. The defendant demurred to the bill, and the chancellor (Hanson) decreed that the terms “ rest and residue of my real estate, not herein before disposed of,” had no certain meaning and operation in law, to pass every part of the real estate which had otherwise before been legally devised, and that every claim of real property under a will must rest on the intention of the testator to be collected from the whole will; and that it appeared from the will of James Maccubbin that he intended to dispose fully of the land in question, to the trustees of Philadelphia College, for the purpose of erecting a school, having neither made a limitation over to the complainants, in case the devise to the said trustees should be void, nor intimated the least doubt of the validity and efficacy of the said devise ; and the law being settled, that in case of a lapsed devise, the land shall pass to the heir and not to the residuary devisee, and there being no solid distinction between the case of a lapsed devise and the case of a devise void by the rules of law, it being manifest in both cases that the testator did not intend the land de facto devised to go to the residuary devisees; the chancellor, for these reasons, being of opinion that the bill of the complainants contained no matter of equity, dismissed it, &c. The complainants appealed to the court of appeals.