HELMS v. FRANCISCUS.—2 BLAND: 533

Magler has introduced himself into this case, by his petition; and
prayed to have his claim considered and satisfied, as the creditor
and assignee of the defendant Lewis Helms.
There can be no doubt, from the pleadings and prooi's, that the

* executors must be decreed to account and to pay over this
residuary legacy. But for whose benefit ? Whether to the 560
husband, or to the wife exclusively! or to both in certain propor-
tions? or to their assignees ? These are important and preliminary
questions. In this respect, this has the aspect of a bill of inter-
pleader between this husband and -wife, to determine their rights,
while the executors stand by as stakeholders, ready to account and
to pay as they may be ordered.

As to what must be considered as embraced by this residuary
legacy. It was formerly an established general rule, that unless
the legatee survived the testator, the legacy was extinguished;
which has been altered by an Act declaring that no devise or be-
quest shall lapse by reason of the death of the devisee or legatee,
in the life-time of the testator; but shall take effect as if he had
survived the testator. 1810, ch. 34, s. 4. Still, however, if a legacy
be so given, that the legatee's right depends on his being alive at
the time fixed for its payment; or if the legacy be charged upon
the real estate, and the legatee dies after the death of the testator,
but before the time of payment, the legacy is lost. Williams' Exrs.
767, 780. Here, however, there has been no such lapsing of any
legacy given by this testator. But it is a well established rule in
the construction of wills, that wherever the testator has given the
whole residue of his personalty to an individual, such residuary
legatee, will take all the personal estate which is not otherwise
well and sufficiently disposed of, whether a legacy falls in by lapse

or as being void in law; or in other words, where a legacy fails as
to a particular object, it will not go the next of kin. but must pass
to those entitled under the residuary clause. Brown v. Higgs, 4
Ves. 709; & C. 5 Ves. 501; Dawson v. Clark, 15 Ves. 417: Rothmah-
ler v. Myers, 4 Desau. 215.

In this case it has been very satisfactorily shewn, that the testa-
tor's sister, —— Bauers, of Bremen, never had but two children.
One of whom, Auna G. Bauers, only he has named in his will; of
the other, Catherine, although living at the time of his death, he
has taken no notice; and the four others, whom he names, never
had any reality or existence. Consequently the bequests of those
four legacies being utterly void, they pass to this plaintiff Anna,
as the residuary legatee; and must be accounted for. and paid by
the executors, as a part of that legacy accordingly.

*The conflicting claims of this husband and wife present the
next subject of inquiry, and the adjustment of them will 561
require some care and attention.

According to our law, the marriage contract so strictly and inti-
mately unites husband and wife, that they form, as it were, but one