§ 28-26-104 — Failure of a testamentary provision

Unless a contrary intent is indicated by the terms of the will, the following rules shall apply: (1) Except as provided in subdivision (2) of this section: (A) If a devise other than a residuary devise fails for any reason, it becomes a part of the residue; and (B) If the residue is devised to two (2) or more persons and the share of one (1) of the residuary devisees fails for any reason, his or her share passes to the other residuary devisee, or to other residuary devisees in proportion to their interests in the residue; and (2) Whenever property is devised to a child, natural or adopted, or other descendant of the testator, either by specific provision or as a member of a class, and the devisee shall die in the lifetime of the testator, leaving a child, natural or adopted, or other descendant who survives the testator, the devise shall not lapse, but the property shall vest in the surviving child or other descendant of the devisee, as if the devisee had survived the testator and died intestate.

Legislative History

Acts 1949, No. 140, § 26; 1979, No. 813, § 1; A.S.A. 1947, § 60-410.