Under common law, if a general devise lapses, does the gift pass to intestacy?

• A. Yes
• B. No
• C. Sometimes
• D. Only if there are no heirs

Answer: (B)

When a general devise lapses, the unclaimed gift does not pass to intestacy. A general devise is a gift of real property payable from the estate’s general assets. If the devisee dies before the testator, that gift is said to lapse. Under common law, the lapse is addressed by treating the missing gift as part of the estate’s residue, to be distributed according to the will’s residuary provisions (rather than defaulting to the testator’s heirs by intestate succession). Anti-lapse statutes can alter this outcome by allowing the gift to pass to the deceased devisee’s issue, but without such statutes, the lapse goes into the residuary rather than through intestacy.