560 HELMS v. FRANCISCUS.

executors must be decreed to account and to pay over this resi-
duary legacy. But for whose benefit ? Whether to the husband,
or to the wife exclusively ? or to both in certain proportions ? or
to their assignees ? These are important and preliminary questions.
In this respect, this has the aspect of a bill of interpleader be-
tween this husband and wife, to determine their rights, while
the executors stand by as stake-holders, 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
bequest shall lapse by reason of the death of the devisee or lega-
tee, in the life-time of the testator; but shall take effect as if he
had survived the testator, (h) 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, (i) 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 person-
alty to an individual, such residuary legatee, will take all the per-
sonal 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 to the next of kin, but must pass to those entitled under
the residuary clause, (j)

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, Anna 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.

(k} 1810, ch. S4, s. 4.—(i) Williams' Exrs. 767, 780.—( j) Brown v. Higgs, 4
Yes. 709; S. C 5 Ves. 501; Dawson v. Clark, 15 Ves. 41T; Rothmahler v. Myers,
4 Desau. 215.