Note and Comment

When the Descendants of a Predeceased Legatee Will Not Take Under a Statute of Substitution – There are in most states statutes declaring that if a person named as legatee dies before the testator, his descendants shall take his share. Downing v. Nicholson, 115 Ia. 493; Strong v. Smith, 84 Mich. 567; x8 A. & E. ENCYC. Ol LAw, 2d Ed. 755. A common type is such as is found in the Civil Code of California, sec. 1310, viz.: “When any estate is devised or bequeathed to any child or other relation of the testator and the devisee or legatee dies before the testator, leaving lineal descendants, such descendants take the estate so given by the will in the same manner as the devisee or legatee would have done had he survived the testator.” Under this statute the Supreme Court of California has just held (two judges dissenting) that descendants of a legatee dying after the will was made, but before a codicil confirming it do not take because (I) the statute is one of distribution having reference only to conditions existing at the time of death of the maker of the will and not to the time of the decease of the original legatee, (2) because the republication subsequent to the death of the legatee made the lapsed legacy a void legacy, and (3) because the statute applied only to lapsed and not to void legacies. In re Matthews’ Estate, (Calif. z918), x69 Pac. 233.