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.