The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-04-27

above stated, But the court refused 10 al,
nit this evidence, considering II illegal anu
incompetent, and tho petition was dismiss
ed. From which decree, this appeal was
takeu.
1t isnow urged, in behalf Of the appellant,
that her husband intended to embrace in his
WILL the property bequeathed and devised
to him in his fathers WILL and to leave the
same to her and her childrenj and that it was
competent to introduce the parOl evidence
showing the circumstances in which he was
then placed and which clearly proved that
such was his intention. And the entire ar
gument of the counsel for the appellant is
directed to this view.
But we consider it immaterial TO the true
merits fthe case, Tho record shows that
Jefferson @. Pate, made his will and died
several months before his father, by whose
will the property referred to was giyeu TO
Jefferson. II was, therefore, case OF LOST
| legacy and the material question to be first
determined is, whether jefferson took any
interest or estate in the property, under his
fathers WILL which he could dispose of by
his will And it is clear that he took no
such interest.
This is governed by our statutes. Rev.
Code 443 art 81, which provides, that:
| "Whenever any estate of any kind, shall, or
may be devised or bequeathed by the last
will and testament of any testator or testa-
| ting, to any person being a child or descend
ant of such testator or testating
and such devisee or legatee shall, dur
ing the lifetime of such testator or testating
die testate or interstate, leaving child or
children, who shall survive such testator OF
testatng, in that case such devise or legacy
to such so situated as above mentioned, and
dying in the lifetime of the testator or Tesla
ting, shall not lapse, but the estate so de-
vised or bequeathed shall vest in such child
CT children, descendant or descendants, OF
such devisee or legatee, in the sane manner
as if such devisee or legatee had survived
the testator or testating, and had died un
married and intestate.'
BY the clear effect of this statute, Jeiier-
son q. Pate took no interest or estate what
ever in the property bequoathed and devised
to him in his fathers will, which he could dis
nose of by will; but as to his individual right
and interest therein, the disposition to him
lapsed by his death before that ofhis father,
and the right and interest bequeathed and
devised to him, vested in his children. All
interest of his widow therein is positively
excluded, because, by the statute, it vests IN
his children, "as if he had died unmarried"
Of course, therefore, he had no power to-
dispose of the estate or interest, by his will
and it is immaterial whether he intended to
dispose of it or not
Under the English Statute, the rule is
otherwise; the lapse is simply prevented by
that statute, and it has been settled that
the legacy vests in the deceased legatee, and
becomes subject to all the incidents ofprop-
erty belonging to him, in the same manner
as If he had survived the testator. ] Roper
on Leg, AGA. But the English Statute does
not contain the clause in our statute, that
the estate so devised, "shaH vest in such child
or children, &c." of the deceased devisee or
legatee; and it provides simply, "that such
devise or bequest shall not lapse, but shall
take effect, as if the death of such person had
happened Immediately after the death Of the tes-
tator, unless contrary intention shall APP
pear"
Under this view of the case, the decree is
manifestly correct, and it is affirmed