Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the Will.
Illustration:
A makes his Will, by which he bequeaths a sum of money to his son, B, for his own absolute use and benefit. B dies before A, leaving a son, C, who survives A, and having made his Will whereby he bequeaths all his property to his widow. D. The money goes to D.
Legal Commentary & Landmark Judgments: Section 109
Section 109 codifies the landmark statutory anti-lapse protection for children and lineal descendants, providing that a bequest to a child does not lapse if the child dies leaving issue surviving the testator.
The profound legal mechanic of Section 109 is a statutory fiction: the legacy takes effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the will. Consequently, the bequest passes into the estate of the deceased child and is governed by that deceased child's will or intestate succession, ensuring that the child's surviving family is not disinherited.
Section 109 contains a critical legal subtlety: the legacy does NOT go directly to the grandchildren! Under the statutory fiction, it passes into the *estate* of the deceased child. Therefore, if the deceased child left a will, the legacy passes according to the child's will; if the child had creditors, the legacy is subject to those debts. Practitioners must trace the administration of the deceased child's estate to claim funds saved under Section 109.