Mem. to search the Books, with the Regard to the following Clause in the late Mr.
Borlands Will, vizt. “Item, to my Son Francis Lindall Borland, who hath been long
absent, and I fear is not now in Life, to him, if now living, I give all my Lands
in Billerica, all my Lands in Sturbridge, my Messuage in Milk Street in Boston wherein
Joseph Calef now lives, all the said Lands and Messuage to my said Son Francis Lindall
and his Heirs forever. I give him allso the Sum of one Thousand Pounds l.M. of this
Province, and my small Diamond Ring and my Gold Watch.”
John Borland is afterwards made Residuary Legatee in these Words “Item, all the Rest
and Residue of my Estate, real and personal, where-soever the same may be, I give
to my Son John his Heirs and Assigns for ever.”
Q. Is this a lapsed Legacy? If a lapsed Legacy it must be parted and distributed among
Francis Borlands Right Heirs.
But, I observe the Devise and Legacy is to him, if living. It has never yet been proved,
probably never will be, that he was then dead, but admitting it certain he was not
then living, would it follow that the Residuary Clause comprehended and extended to
John what was before given conditionally to Francis.