As both her son, Daniel Gaffney, and his only daughter, died during the lifetime of the testatrix, the legacy in trust in favor of each lapsed, and no benefit could accrue to either or to the heirs of either therefrom. Nor did the event of the testatrix’s son dying childless happen, upon the occurrence of which the trustee was directed to hold the estate for the benefit of the next of kin of the testatrix, such “ as in his opinion is or are the most needful or deserving,” as the son not only died during the mother’s lifetime, but left a child, his daughter, who deceased subsequently, and previous to the death of her grandmother. When the will was made, it was contemplated by the testatrix that her son would survive her, and that it would take effect in his favor*. This is shown not only by the clause above *26referred to, but also by the clause which provides that the trust in his favor shall continue as long as the son and his present wife shall survive, and until the youngest of» his children shall attain the age of twenty-one years; but if the son dies childless, the trust may expire at any time thereafter when the trustee wishes. When the will became operative, the contingency contemplated by the testatrix had not happened, and could not thereafter happen. The question primarily to be determined, therefore, is whether the legacy in trust for the benefit of the next of kin depended upon the occurrence of such- a contingency, or whether it was independent of it, and was a gift or disposition of the property which took effect by substitution for that first provided. The heirs are not to be disinherited, unless it plainly appears by the will that such is the intention of the testatrix. When a contingency upon which an estate is given over never can take place, such gift over must fail. Upon this principle it. has bgen held that, where an instrument is limited by a condition as to its operation, it cannot be admitted to probate as a will after failure of the contingency on the happening of which it was to have taken effect. Todd's will, 2 Watts & Serg. 145. Parsons v. Lanoe, 1 Ves. Sen. 189, 191. Sinclair v. Hone, 6 Ves. 607. In the case at bar, it is impossible to say that the bequest in trust for the benefit of the next of kin is an absolute one, when it is only “ in the event of ” the son’s dying childless that it was to vest in the trustee for that purpose.
In Carpenter v. Heard, 14 Pick. 449, a testator bequeathed to his granddaughter, Judith C. Lee, a sum of money to be paid to her when she arrived at twenty-one years or was married, and directed that, if she should die under twenty-one and unmarried, the legacy should be paid to his other granddaughters. Judith C. Lee died in the lifetime of the testator, unmarried, but after attaining the age of twenty-one years. It was held that the other granddaughters took nothing under the bequest. The original bequest to Judith C. Lee having lapsed by her death, they could not take in the same manner that they might have done if the bequest over had been made absolutely and unconditionally to them. Humberstone v. Stanton, 1 V. & B. 385, which, with several other English cases, is cited and fully discussed by Mr. Justice Putnam in Carpenter v. Heard, was the *27case of a bequest of stock to a son of the testator on his accomplishing his apprenticeship, with a bequest over, in case the son “ should die before he accomplishes his apprenticeship,” to another son and three daughters of the testator. The son completed his apprenticeship, and died a year or two before the testator. The question was, whether, by his death in the lifetime of the testator, the bequest over had taken effect; and it was held that the legacy had lapsed, and that the bequest over could not be maintained.
It is not for us in the case at bar to consider the expediency of the contingency which the testatrix has affixed to her bequest over for the benefit of her next of kin, or whether, if she had anticipated the death of her son and his child previous to her own, she might or might not have made the same provision which she did make in the event of her son dying childless. The only provision she did make was in anticipation of that event, and was dependent upon that contingency. The legacies in favor of her son and his child have lapsed by their deaths in her lifetime. Under these circumstances, that which she under* took to devise and bequeath cannot be taken by the trustee for the benefit of the next of kin, but is to be treated as intestate property, and to be distributed as such to her heirs at law.
It is not necessary that the executor should take out administration on such intestate estate; he may administer it as executor. Hays v. Jackson, 6 Mass. 149, 152.
The bill which is brought by the sister of the testatrix, as her next of kin., for the purpose of enjoining the defendant from distributing the estate of Mrs. Gaffney, the testatrix, to her heirs at law after the debts and just charges thereon shall be paid, and of compelling the executor to pay the same over to the plaintiff, must therefore be dismissed.
Bill dismissed.