Law of Wills, 2016A

This Court finds from the foregoing that the testator intended the gifts in Items VI and VIII to be
gifts to individuals and, therefore, those beneficiaries named in Item VI who predeceased the
testator, not being relatives of the testator, lapse and pass into the residuary estate. Since these same
beneficiaries are again named in the residuary clause, their residuary share must be divided among
the surviving residuary beneficiaries per capita. See Commerce National Bank of Toledo, Trustee v. Browning
(1952) 158 Ohio St. 54, 107 N.E.2d 120
An entry may be prepared accordingly, with costs to the estate.
15.2.4 Void Devises
If the devisee is already dead when the will is executed or is an ineligible taker, the devise is
void and the lapse rules apply.
Example:
In 2000, Rudy executed a will stating, “I leave $40,000 to my brother, Rick and $75,000 to Spike.
The rest of my estate is to be divided equally between my cousins, Lillian and Caine. Rick died in
1998 and Spike is a dog.
Explanation:
The devise to Rick is void because he was not alive at the time the will was executed. Spike’s devise
is void because, as a dog, he is an ineligible taker. Thus, the devises to Rick and Spike fall out of the
probate estate and lapse into the residue. As a result, Lillian and Caine split the entire estate.
In re Estate of Russell, 444 P.2d 353 (Cal. 1968)
SULLIVAN, Associate Justice.
Georgia Nan Russell Hembree appeals from a judgment (Prob. Code, s 1240) entered in
proceedings for the determination of heirship (ss 1080—1082) decreeing inter alia that under the
terms of the will of Thelma L. Russell, deceased, all of the residue of her estate should be distributed
to Chester H. Quinn.
Thelma L. Russell died testate on September 8, 1965, leaving a validly executed holographic will
written on a small card. The front of the card reads:
‘Turn the card
March 18—1957
I leave everything
I own Real &
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