Qjnrnpll iHatu i>rl)nnl ICtbrary Cornell University Library KD 1509.H39 1912 A concise treatise on tlie construction o 3 1924 022 207 769 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022207769 CONCISE TREATISE CONSTRUCTION OF WILLS. BY FEANCIS VAUGHAN HAWKINS, M.A., OF LINCOLN'S INN, BAERISTER-AT-LAW, FELLOW OF TBINITY COLLEGE, CAMBRIDGE. SECOND EDITION. BY CHAELES PEECT SANGEE, OF LINCOLN*S INN, BABBISTKB-AT-LAW, LONDON : SWEET AND MAXWELL, Limited, 3, CHANOEEY LANE, W.O. 1912. PREFACE TO THE SECOND EDITION. Feancts Vaughan Hawkins died on April 22nd, 1908. Shortly afterwards the senior Judge of the Chancery Division prefaced his judgment in the case of In re Herring ((1908) 2 Ch. 493) by saying, " I disposed of most of the questions arising in this case before the last vacation. Upon the remaining one I took time to consider, out of deference to the argument of Mr. Vaughan Hawkins, in whose lamented decease, pending my judgment, we all deplore the loss of a most accurate writer and pre-eminent autho- rity upon that branch of the law with which his name in the minds of the profession will always be specially associated by the title of that model text- book, Hawkins on the Construction of Wills." The book, which has frequently been praised by Judges for its utility and accuracy {e.g., L. R. 2 Eq. p. 291; 4 Ch. D. p. 48; 10 Ch. D. p. 27; 21 Ch. D. p. 797 ; (1898) 1 Ch. p. 229), has always enjoyed a high reputation. At one time Mr. Hawkins began to prepare a second edition. a2 IV PREFACE TO THE SECOND EDITION. Mr. L. H. Elphinstone, of Lincoln's Inn, has generously placed Mr. Hawkins' manuscript at raj disposal, and I have thus been able to add to the Introduction on the General Principles of Con- struction his observations on the effect of Domicil on Construction, and to substitute the new section on the Admissibility of Evidence for the original section on Parol Evidence. Unfortunately Mr. Haw- kins did not proceed further with the revision. The method adopted in revising the main body of the book has been as follows. All Mr. Hawkins' rules stated in large print are retained. To these have been added the statutory rules enacted by sect. 30 of the Conveyancing Act, 1881, the Dower Act and Locke King's Act, which supersede rules of construction previously existing. In the cases where the rules of construction have been altered by the Wills Act, the Dower Act and Locke King's Acts, Mr. Hawkins' observations on the old law, which is now almost obsolete, have been omitted, and his rules have been placed after instead of before the present law. Apart from this the whole of Mr. Haw- kins' comment has been retained. Marks of quotation have been placed at the beginning of every line of such comment. Quotations from judgments, on the other hand, have marks of quotation only at the beginning and the end of the passage quoted. Mr. Hawkins (or his printers) frequently changed the punctuation, capital letters, &c., and occasionally PREFACE TO THE SECOND EDITION. V omitted unimportant words. Only necessary cor- rections have been made in such quotations. To Mr. Hawkins' comment I have added such further comment as seemed necessary to bring the book up to date, and have also noted later cases, which are placed in square brackets. For the benefit of those practitioners who wish for a discussion on difficult or doubtful points I have added frequent references to Jarman on Wills. Ex- cept where it is otherwise expressly stated, all such references are to the Sixth Edition, by Mr. Charles Sweet, in which Mr. Jarman's original words ai'e carefully distinguished from the accretions due to his editors. The portrait of Mr. Hawkins, at the age of 16, is taken from a copy of the water-colour by George Richmond which hangs in the Vaughan Library at Harrow. C. P. S. 5, New Square, LnsrcoLN's Inn, October, 1912. ( vii ) PREFACE TO THE FIEST EDITION. iThe object of the present work is to embody, in a definite and intelligible form, that portion of the vast mass of reported cases on testamentary construction which really constitutes the law of the Courts lat the present day, and governs the judicial construction of wills. This body of law consists of a number of rules, called Kules of Construction, determining the construction which the Courts are bound, in the absence of a sufficiently declared intention to the contrary, to put upon particular words, expressions, and forms of disposition occurring in wills. Rules of Law, which are not rules of construction, are not included in the present treatise. A rule of construction may always be reduced to the following form: — Certain words or expressions, which may mean either x or y, shall, 'prima facie, be taken to mean x. A rule of construction always contains the saving clause, "unless a contrary intention appear by the will:" though some rules are much stronger than others, and require a greater force of intention in the context to control them. On the other hand a rule of law which is not a rule of construc- tion (as, the rule in Shelley's Case, the rules as to perpetuity, mortmain, lapse, &c.), acts independently of intention, and applies to dispositions of property in whatever form of words expressed. This difference is fundamental, and lies at the root of the subject. The existing rules of construction are mainly of two classes : first, the old rules, some of very ajicient date, not a few very inconvenient in their operation, and not seldom traceable to a misconception of the cases on which they originally rested; and secondly, the more modern rules, chiefly relating to minor Vlll PEEFACE TO THE FIRST EDITION. matters and subordinate parts of the testamentary disposition, and in many cases useful and beneficial to the intention. The latest rule, Bullock v. Dowries (p. 95 (a)), is a good example of this class . It seems now generally recognised that the utility of rules of construction is almost confined to the smaller questions arising on wills: that their function is to remedy some of the ordinary slips and ambiguities of language, and to supply the omissions of the testator in points of detail not affecting the vital parts of the disposition; and that upon wide and general questions, where the whole frame and language of the will bears on the construction, no general rules can usefully be laid down. A certain want of congruity is perhaps unavoidable in a system of construction elaborated by a succession of judges, some inclining rather to the grammatical or literal, others to the logical or inferential, interpretation of testamentary instruments. Every rule of construction settles a disputed or disputable point, on which different minds would entertain different opinions: iand it generally happens that in some parts of the subject the one view has prevailed, and in others the opposite. If a rule is pushed too far, a reaction sets in, and the balance is inconveniently and unduly shifted. Rules of Construction are also to be distinguished from Rules of Administration, — such as those which define the order in which devises and bequests are made liable to payment of debts, in the absence of any special intention appearing on the will. The statute called Locke King's Act prescribes a rule of administration only, and not a rule of construction: — a point perhaps not immaterial with reference to recent arguments respecting it. So the rule in Howe v. Lord Dart- mouth is, as explained by Sir J. Wigram in Hinves v. Hinves (3 Hare, 609), only a rule applied in the absence of intention, i.e., a rule of administration: had it been a rule of construc- tion, the extremely slight indications which have been held to exclude its operation would scarcely be compatible with its existence as a rule. The elaborate development of the English law of testamen- (o) p. 126 of the present edition. PREFACE TO THE FIRST EDITION. IX tary construction is due in great measure to the salutary- rule, which excludes parol evidence of the testator's actual intentions except in cases of equivocal description; which has compelled interpreters to .draw their conclusions exclu- sively from an accurate study of the document itself. I have elsewhere (b) endeavoured to show that the rule which excludes parol evidence in aid of interpretation is not, as has been contended by high authority, a necessary result of the require- ment of a written will: indeed Roman jurisprudence proves the contrary. The ano-malous cases of what are called "presumptions" of law are in reality rules of construction derived from the civil law, which having obtained a lodgment in English law, but being disapproved of, have been allowed to retain their own antidote in the shape of the capability of being rebutted by parol evidence, which (in common, however, with other rules of construction) they possessed in the system from which they were originally derived. The present work is intended to embrace all the ques- tions of testamentary law ,on which rules of construction exist. Where there is no such rule laid down, the intention is the sole guide: reported cases may assist by supplying suggestions, but they do not govern. It seems to have been thought by some that a rule ought to exist upon every possible point of construction: but the tendency of the Courts now is to avoid creating (except in minor matters) any fresh rulra, and not to extend the older rules beyond their present limits. If this principle be acted on, the law necessary to he hnown for purposes of construction may be reduced within moderate dimensions, and the present treatise is designed to show (however imperfectly) the form in which it might be perma- nently retained. It is hardly necessary to say that every point in the book has been independently worked out by the author, and no results have been merely taken from other writers (c) . There is no subject on which isolated cases and statements of cases are (S) In a paper on " Legal Interpretation," 2 Juridical Society's Papers, p. 298. (o) Every writer on this sabjeot, however, must feel under very great obligations to " Jarman on Wills," and to the labours both of its author and its subseqxient editors. (Note by Mr. Hawkins.) X PEEFACE TO THE FIRST EDITION, 80 misleading as in the construction of wills: tKe la'w on any particular point is to be gained only by a study of the cases as a, whole, and it requires much acquaintance with the subject to determine how far any given case found in the books is or is not an authority beyond its own particular cir- cumstances. It is too much to hope that no errors will be discovered in the following pages: but great pains have been taken that they should represent accurately the present state of the law on each point, and that the best authorities should be referred to. ,The cases given in the large print are the leading authorities, and, taken together, form the framework and main body of the law . It was originally intended to indicate by asterisks those rules which appear to be inconvenient in their results, and to deserve to be repealed: the reader can, if he pleases, do this for himself. Any legislative alteration of the law of construction should proceed by simply declaring that certain reported cases (on which the rule is founded) shall no longer be of authority, and not by adding fresh rules which will require judicial interpretation. With some alterations of this nature, and with the introduction by judicial authority of a few rules on subordinate points (see, e.g., p. 253 (d), and Appendix II. (e)), it does not seem but that a reasonable and beneficial system of construction would be attained, and that within a moderate compass. Something will be gained towards simplifying and consolidating the law, if it can be brought to a form in which it may be easily known and recollected. F. V. H. 7, Stone Buildings, Lincoln's Inn, March 31, 1863. ((?) P. 303 of the present edition. The point ia now settled by Martin V. Holgate, L. E. 1 H. L. 175. (e) iP. 245 of the present edition. ( xi ) CONTENTS. INTEODUCTION. PAG£ 1. Geneeal Principles of Consteuotion 1 Effect of domioil on construction 9 2. On PuKOTtJATION, ETC 11 3. Admissibility of Evidence 13 Equivocal descriptions 14 Testator's knowledge, habits, &c 18 Future non-testamentary act 19 EULES OP CONSTEUCTION. CHAPTER I. DESCRIPTIONS OF PKOPERTY, TO WHAT PERIOD REFERABLE. I. Existing Law. Rule. Descriptions of property refer to the death (Wills Act, sect. 24) 21 Effect of section 24 on powers 22 Exceptions to section 24 24 Stocks and shares 26 II. Old Law. Rule. Devise of freeholds speaks from date of will 28 Rule. Eepublished will speaks from date of codicil 28 Rule. Bequest of leaseholds speaks from date of will 28 Rtde. General bequest of personalty speaks from death 28 XU CONTENTS. CHAPTEE II. BEVISES AND BEQUESTS, WHEN OPERATING IN EXECUTION OF POWERS. PAGE 1. Existing Law: General Powers. Rule. General devises and bequests operate as an execution of general powers (Wills Act, sect. 27) 29 2. Existing Laiu : Special Powers. Old Law : General Powers. Rule. Cleee's Case. Devises and bequests do not, primd facie, operate in execution of powers 32 Exceptions 34 3. Old Law : General Powers. Rule. Denn v. Eoake. Devise of lands, the testator having no lands of his own, passes lands subject to a power 36 CHAPTEE III. "lands," ETC., WHAT KINDS OF PROPERTY INCLUDED UNDER. 1. Copyholds. Rule. Devise of "lands,'' &c., includes copyholds 39 2. Leaseholds. Rule. Existing Law. " Lands," &c., includes leaseholds (Wills Act, sect. 26) 39 Rule. Old Law. Rose v. Baetlett. Devise of "lands," &c., does not include leaseholds 41 3. Reversionary Interests. Rule. CHUEOn v. Muntiy. " Lands," &c., includes reversionary- interests 42 Rule. Chester v. Chester. Lands " not settled " includes an unsettled reversion in settled lands 43 4. Trust and Mortgage Estate. Existing Law: Freeholds. Rule. Trust and mortgage estates vest in personal representatives (Conveyancing Act, 1881, sect. 30) 43 Bare trustee since August 7th, 1874 45 Earlier Law : Freeholds. Existing Law: Copyholds. Rule. Lord Beaybeoke v. Inskip. Devise of "my lands," &c., includes trust and mortgage estates 45 Exceptions 46 6. Lands contracted for. Ride. Devise of lands, &c., includes lands contracted to be purchased 50 Lands contracted to be sold 50 CONTENTS. xm CHAPTER IV. EESIDrARY BEQUESTS AND DEVISES. PAGE 1. Jlesiduary Bequests. Mule. Residuary bequest carries lapsed and void legacies 82 Residue does not include a share of residue which fails 55 Residue of "residue" 56 Rule.. Contingent residuary bequest carries the intermediate income. 57 2. Besiduary Devises. Ride. Hxistinff Law. Residuary devise includes lapsed and void devises (Wills, Act, sect. 25) 58 Rule. Old Law. Residuary devise does not include lapsed devises.. 59 3. Income. Rule. Geneet v. Fitzgerald. Residuary gift of real and personal estate carries intermediate income of both 60 Contingent residuary devise alone does not carry rents 61 Rule. Personal estate does not include proceeds of converted real estate 62 CHAPTER V. WORDS DESCRIPTIVE OF PROPERTY. Rule. " Securities for money " or " mortgages " carries the legal estate in fee of mortgaged lands 64 "Monies on securities," &c., whether legal estate passes by 65 Rule. "Money" does not include stock in the funds 66 But includes money at a banlrer's 67 Whether "monies" includes monies due 67 Rule. "Ready money" includes cash at a banker's 68 Rnle. RoGEES v. Thomas. Gift of " money " remaining after debts paid carries the general residue 69 Money remaining after payment of funeral expenses 69 After payment of legacies 70 General intention to dispose of all personalty 71 Exceptions 71 Rule. " Estate " includes both real and personal estate 72 Rule. "Effects" does not primd facie include real estate 74 Rule. "Goods," "chattels," carries the whole personal estate 75 XIT CONTENTS. CHAPTER VI. OBJECTS OF GIFT GENERALLY. FAQE Sule. Bbown v. Htoqs. Power of appointment not being exercised, implied gift to all the objects of the power equally 77 Sule. Garvey v. Hibbeet. Gift to children, &o., aa consisting of a specified number: mistake in the number corrected 83 Applies to grandchildren, servants, &c 84 Sule. Thetfobd School Case. Where the whole rents are given tn charitable objects, the objects take the increased rents ... 85 Exceptions — (1) Where the whole rents are not given 87 (2) Where the whole rents are given, but not to charitable objects 88 CHAPTER VII. CHILDREN, ETC., WHEN ASCERTAINED. Rule. Gift to children, &c., means, prima facie, those in existence at testator's death 90 Eule applies to all classes of relationship 90 Exceptions 92 Whether words of futurity exclude the rule 92 Where no children in existence at testator's death 93 Sule. Gift of aggregate fund to children, &c., as a class, when not immediate, lets in those coming in esse before the period of distribution 95 Eule applies to powers 96 But not to gifts of separate legacies 96 Words of futurity 97 Reversionary interest lets in those born before it comes into possession 98 Sule. A>rDHEWs -i^. Paetinoton. Gift to children at twenty-one: children born after the eldest attains twenty-one ex- cluded 100 Gift to children when the youngest attains twenty-one 102 Sule. Children en ventre considered as living and born 104 CHAPTER VIII. CHILDREN, ETC., DEFINITIONS OF. Sule. "Children," &c., means legitimate children only 106 Exceptions — (1) Gift to children of a person dead at the date of will... 108 (2) Gift to illegitimate children as personce designatce 110 Hill r. Ceook. The dictionary principle Ill CONTENTS. XV FAQB Rule. "Children" doea not include grandchildren 113 Nor " grandchildren '' great grandchildren 113 Rule. " Nephew, niece," does not include great nephews, or great nieces 114 Rule. "Brothers, sisters," &c., includes the half-blood 115 Rule. " Cousins " confined to first cousins 116 Rule. "Issue" includes descendants of every degree 117 Rule. Sibley v. Peeey. " Parent " restrains " issue " to children of the parent 117 Eule applies to real estate 118 Rule. " Family ''in personal estate means, primd facie, children. . . 120 Family in relation to real estate 121 CHAPTER IX. DESCEIPTIONS RELATIVE TO SUCCESSION TO PERSONAL ESTATE. Four classes of persons taking by succession 122 Ride. Bequest to " A. or his heirs " means the persons taking under the Statutes of Distributions 123 Includes a widow 123 Heirs when ascertained 125 Rule. Bullock v. Downes. Gift to the persona entitled under the Statute, is a gift to them in the statutable shares 126 So to the persona entitled in case of intestacy 127 Rule. " Next of kin " does not mean the statutory next of kin, but the nearest in blood 129 " Next of kin according to the statute " includes those taking by representation 130 Rule. GuNDKY V. PiNNiGEE. "Next of kin," &c., means next of kin at the death of the propositus, and not at the period of distribution 131 Although tenant for life is sole next of kin 132 Eule applies to gifts to the heir 133 Gift to next of kin of A. who dies in testator's lifetime 135 Rule. Gift to " relations " confined to those within the Statutes of Distributions 136 Applies to real estate 136 Power to appoint to relations, if of selection, not confined to those within the statute 137 Gift to A. for life with a power to appoint to relations: objects ascertained at time of cesser of the power 139 RtUe. " Eepresentatives," legal personal representatives, ifco., Imeans, primd facie, executors or administrators 141 Immediate gift to A. or hia representatives 143 Eules compared 144 XVI CONTENTS. CHAPTER X. JOINT-TENANCY, ETC. PAQE Rule. Gift to several without words of severance creates a joint- tenancy 1*6 Bodies corporate: husband and wife 147 Rule. Gift to children of A. and of B., the children take per capita 149 Gift to A. and children of B 149 Rule. Gift to husband and wife and others: husband and wife take only one share 152 Rule. " Sole " use or benefit means separate use, if woman is married or testator contemplates her marriage 153 CHAPTER XI. DEVISES AND BEQUESTS WITHOUT WORDS OF LIMITATION. Rule. "Occupation'' of a house, &c., passes an estate for life ... 157 Rule. Devise of "rents and profits" passes the land 158 Rule. Trust to raise money out of " rents and profits " charges the corpus of the land 159 Rule. Gift of the income of personal estate without limit as to time, is a gift of the principal 162 Rule. Gift of an annuity is, primd facie, for life only 164 CHAPTER XII. DEVISES WITHOUT WORDS OF LIMITATION. Existing Law. Rule. Indefinite devise passes the fee (Wills Act, sect. 28) 170 Old Law. Rule. Devise of lands, &c., to A., passes an estate for life only 171 Rvle. " Estate " passes the fee although' with words of locality or occupation; 171 Rttle. A charge on the devisee, or on the interest devised, passes the tee; but not a devise subject to a charge 172 Rule. Devise to one, with a gift over on death under age, passes the fee 172 Rule. Challengee v. Shephaed. Devise of the fee simple to trustees in trust for A., A. takes the fee 173 CONTENTS. XVI] CHAPTER XIII. ESTATES OF TRUSTEES. PAGE Sule. Devise in trust to pa^ rents to A., gives the legal estate to the trustee, but not a trust to permit A. to receive them 174 Sect. 30 of the Wills Act: trustees in no case to take an in- definite term 177 Bttle. Dob v. Nicholls. Trustees take only so much of the legal estate as the purposes of the trust require 178 Devise oj: copyholds to A. in trust for B. : doctrine of attraction 180 Habton v. Haeton. Recurring trusts 182 Trusts to raise money, &o 184 Indefinite term of years 184 AboUshed by sect. 30 of Wills Act 185 Determinable fee in trustees 185 Trust for payment of debts gives the fee 187 Trusts for payment of annuities 189 Powers of sale or leasing vest the fee in trustees 189 Trusts to convey 191 Rule. Wills Act, sect. 31. Trustees in all cases to take either an estate pur autre vie, or the legal fee simple 192 Sects. 30 and 31 compared 192 Devise to trustees by implication 194 CHAPTER XIV. PKECATORY TRUSTS. Rule. Expressions of desire accompanying a bequest are, prima facie, obligatory, and create a trust 196 Eule now relaxed or abolished 198 Contrary intention 201 Uncertainty of amount 203 Trusts for maintenance 204 Uncertainty of objects 205 CHAPTER XV. HEIRS, HEIRS MALE, ETC. Rule. Devise of customary lands to the heir; the common-law heir 207 Lord Coke's rule: heir male to take by purchase must be very heir 208 H. * XVm CONTENTS. PAGE Sule. Heir male of the body as purchaser need not be heir general.. 209 liOrd Coke's rule, how far abolished 210 Heir male of the body must claim through males, although taking by purchase 210 Sule. Heirs male of the body, issue male, &e., mean descendants in the male line only 211 Sule. Heirs male, in a will, as words of limitation, mean heirs male of the body 212 Sule. Archer's Case. Devise to A. for life, with remainder to the heir male (in the singular), with words of limitation super- added, the heir male of the body takes as purchaser 213 Sule. "Heirs lawfully begotten" creates an estate tail 214 Sule. Devise to A. and his heirs, with a gift over on general failure of issue: A. takes an estate tail 215 Sule. Devise to B. on failure of heirs of A.: if B. is capable of being collateral heir to A . , " heirs " is restrained to heirs of the body 217 Sule. " Necessary " implication: devise to heir after the death of A. 218 Rule applies to personal estate 219 Devise to one of several co-heirs 219 Bequest to some of next of kin 220 Distributive construction 220 Sule. Devise to A. or his heirs: "or" read "and" 222 CHAPTER XVI. ESTATES TAIL, ETC. Sule. Estate tail cypres: devise to an unborn person for life, with remainder to his children 223 Rule applies to appointments under powers 223 Eule as extended by Pitt v. Jackson 225 Sule. Jesson v. Weight. "Heirs of the body" are words of limitation 226 Words of distribution and limitation do not exclude the rule... 228 Words of explanation 229 Sule. " Heirs of the body " in personal estate, confers the absolute interest 232 Sule. EoDDY V. Fitzgerald. " Issue " in devises of real estate is a word of limitation 233 Words of distribution rejected 234 Sule. Lees v. Mosley. Devise to one for life, remainder to his issue and their heirs: the issue take by purchase 236 Words of distribution alone convert " issue " into a word of purchase, if the issue can take the fee 237 Words of limitation alone, whether sufEcient 239 Words of explanation 241 Bequest to A. and hia issue 242 CONTENTS. XIX PAGE Side. Wild's Case. Devise of real estate to A. and his children.. 243 Eule does not apply to personal estate 243 Bequest to A. and his children 244 Rule. Devise to A. for life or indefinitely, with a gift over on general failure of issue: A. takes an estate tail 246 Rule. Implication of cross-remainders in tail 247 or for life 248 Re Hudson. Cross-limitations in personal estate 248 Re Bowman. " Surviving " read " other " by force of gift over 249 Rule. Paibfield v. Mobgan: "or" read "and" 251 CHAPTER XVII. DEATH WITHOUT ISSUE, ETC. Existing Law. Rule. " Die without issue,'' &:o., restrained to failure of issue at the death (Wills Act, sect. 29) 254 Old Law. Rule. "Die without issue" imports an indefinite failure of issue.. 257 Rule. Forth v. Chapman. "Die without leaving issue" 258 Rule. Maitland v. Chalie. Gift over on death without leaving children; "leaving" read "having" 260 Gift over before shares are "payable," &o 261 Eule in Howgeave v. Cartier: provisions for children, if pos- sible, held not contingent on surviving the parent 263 CHAPTER XVIII. VESTING. Meaning of "to vest" 265 As applied to remainders in real estate 265 Fearne'a definitian 266 Civil Law rules: "vested" equivalent to "unconditional" and " transmissible" 266 Aliter in English Law 267 "Vested" means "not subject to a condition precedent" 267 I. Personal Estate. Rule. Gift " at,'' " when," " upon,'' " from and after " a given age, prima facie, contingent 267 Rule. Hanson v. Graham. Gift and time of payment distinct .... 270 Rule. Interim interest vests the principal 272 Gift of interest subject to a charge 274 Discretionary power of maintenance. Fox v. Fox 275 Saunders t). Vadtieb. Immediate severance of legacy 276 b2 XX CONTENTS. FAQE Side. Hallifax v. Wilson. Payment postponed for convenience of estate: vested gift •••• 278 Sule. Leemino (/. Sheebatt. Gift to children when the youngest attains twenty-one, excludes those dying under twenty-one 279 n. Legacies ohaeged on Land: Rule. Legacies out of land, prima facie^ do not vest before time of payment 281 in. Real Estate: Ride. BoEASTON's Case. Devise to A. when he attains a given age, with intermediate estate carved out, vested 284 Devise "if" he attains twenty-one, not within the rule 286 Rule. Edwabds v. Hammond. Devise to A. if he attains twenty- one, with a gift over if he die under twenty-one, vested subject to be divested 287 So if the gift over be on death under twenty-one without issue 287 CHAPTER XIX. SDBSTITDTION, SURVIVORSHIP, ETC. Rule. Willing v. Baine. Gift over of the legacy or share of a legatee: substitution takes place in testator's life 291 Exception: Bone v. Code. Substitution in favour of executors does not take place in testator's life, unless the gift be immediate 294 Substitution in gifts to a class. IvE -y. King 296 Independent gifts: bequest to ohOdren and issue of cliildren.. 297 LoEiNQ ti. Thomas. " Shall " die not emphatic 298 Gifts partly substitutional. Cheistopherson «. Nayloe 299 Forms of gift compared 301 Gifts to children and issue: whether the issue must survive the stirps 302 Whether the issue must survive the period of distribution 303 Rule. Gift to A. and " in case of his death " to B. : gift over restricted to death before period of distribution 304 Home u. Pillans. Gift over in case of death leaving children 307 Fourth rule in Edwards v. Edwaeds is not law 308 Gift over to the survivors of legatees 310 Rule. Ceipps v. Woloott. Words of survivorship, prima facie referred to period of distribution 3U Rule applies to real estate gjg Contrary intention gj^ Rule. Browne v. Lord Kenyon. Gift to several " or " those living at a given period, vests in all, subject to be divested 318 Lassenoe v. Tierney. Directions to settle children's shares ... 319 Rule. Ex parte West. Clause of accruer does not, prima facie, operate on accrued shares 32o Eyee v. Marsden. Double clause of accruer 323 CONTENTS. XXI CHAPTER XX. dower, charges, liability to debts, etc. Dover. paqb Existing Law. Rule. Devise to the widow of any interest in land liable to dower excludes her. Dower Act, sect. 9 324 Rule. Every disposition by will excludes dower. Dower Act, sects. 4, 5 325 Old Law. Rule. Gift to the widow of part of the land liable to dower does not put her to election 326 Rule. Every devise is, primd facie, subject to the right to dower 327 MOETQAGES. Existing Law. Rule. Locke King's Acts: Devisee of mortgaged estate takes cum onere 328 Contrary intention: General direction for payment of debts is not 329 Earlier Law (before 1855) 330 Rule. Devise subject to a mortgage does not imply that the devisee should take cum onere 330 Debts and Legacies. Rule. Direction to pay debts charges the real estate 331 But not direction to executors to pay them 331 Direction to executors to pay legacies, whether charges real estate devised to them 335 Rule. Charge of debts on real estate does not exonerate the personal 336 Blekded Eeal and Personal Estate. Rule. Roberts v. Walker. Direction to sell real estate: liability pari passu 341 But not if the real ^estate is not converted. Bouqhton v. BOUQHTON 341 Rule. Kidney v. Coussmakee. Proceeds of real estate directed to form part of personal estate are liable to all charges 343 Ride. Geevillb v. Browne. Gift of legacies followed by a gift of residue of real and personal estate charges legacies on the real residue 345 Notwithstanding a prior devise of real estate 346 Uule. CoNEON V. CoNRON. Charge of legacies on all the real estate does not charge specific devises 347 Aliter, where a charge of debts and legacies 348 XXll CONTENTS. CHAPTER XXI. LEGACIES. PAGE Rule. Annuities are legacies, and an annuitant is a legatee 349 Sule. Chancey's Case. Direction to pay debts and legacies rebuts the presumption of satisfaction 350 Direction to pay debts only 351 Parol evidence not admissible 351 Rule. Legacy of stock, &o., primd facie, not specific 352 Eeference to particular stock: "my" 354 Legacy of stock or money out of stock 354 Rule. Legacies repeated in separate instrument, primd faoie, cumu- lative. PIOOLEY V. Hatton 355 Legacies by two instruments when substitutional 356 Double legacies with the same motive 357 Parol evidence 358 Rule. Leacroft v. Maynaed. Added and substituted legacies are subject to the same incidents as the original legacy 358 Gift out of particular funds 359 Defeasible legacy 360 Contrary intention 361 Gift of a " clear " yearly sum 362 Rule. Legacy to executor is, primd jade, attached to the ofBce 362 But not a bequest of the residue 363 Contrary intention 363 Title op E.xeodtoes to Undisposed-of IIesidde. Rule. Eloock v. Mapp. Executors appointed trustees of the re- sidue cannot claim beneficially, except against the Crown.. 365 Parol evidence 366 Presumption against title of executor from legacy given to him. 367 Wills Act, Construction, &c. Clauses, sects. 24 — 33 367 SiATnTES OF DiSTBiBniiON: 22 & 23 Car. II. c. 10, sects. 5 — 7... 370 „ „ 1 Jac. II. u. 17, sect. 7 372 ( xxiii ) TABLE OF CASES. -♦- A. PAOi: Abbott V. Middleton [1858], 7 H. L. C. 68; 28 L. J. Ch. 110; 5 Jur. (N. S.) 717; 115 K. R. 38; affg. 21 Bea. 143; 1 Jur. (N. S.) 1126; 25 L. J. Ch. 113; 4 W. B. 69 2,3 Abrey v. Newman [1852], 16 Bea. 431; 22 L. J. Ch. 627; 17 Jur. 153; 1 W. K. 156; 96 E. E. 209 149, 151 Aoherley v. Vernon [1725], 3 Br. P. C. 85; Comyn, 381; 9 Mod. 68; 1 P. Wms. 783; 2 Eq. Abr. 209; Willes, 153; 10 Mod. 518 28, 51 Ackers v. Phipps [1835], 9 Bli. N. S. 430; 3 CI. & Fin. 665; 39 E. E. 94 60, 61 Ackland v. Lutley [1839], 9 Ad. & Ell. 879; 1 P. & D. 636; 8 L. J. (N. S.) Q. B. 164; 48 E. R. 729; (Ackland v. Bring), 2 M. & Gr. 937 176, 184 Adama v. Adams [1845], 6 Q. B. 860; 14 L. J. Q. B. 171; 66 E. E. 582 189 Adama and Kensington Vestry, Ee [1884], 24 Ch. D. 199; affd. 27 Ch. D. 394; 52 L. J. Ch. 758; 32 W. E. 120; 48 L. J. Ch. 958 198,200 Adama and Perry's Contract, Ee, [1899] 1 Ch. 554; 68 L. J. Ch. 259; 80 L. T. 149; 47 W. E. 326 175 Adamson v. Armitage [1815], 19 Ves. 416; Coop. 283 154, 162 Adkins, Ee, Solomon v. Catchpole [1908], 98 L. T. 667 67 Adney v. Greatrex [1869], 38 L. J. Ch. 414; 20 L. T. 647; 17 W. E. 637 115 Airey v. Bower [1887], 12 A. C. 263; 56 L. J. Ch. 742; 56 L. T. 409; 35 W. E. 657 22, 23 Aloock V. Sparhawk [1691], 2 Vern. 228; 1 Eq. Ca. Ab. 198, pi. 4 335, 336 Alexander v. Alexander [1842], 5 Bea. 518; 59 E. E. 566 361 Allan, Ee, Dow v. Cassaigne, [1903] 1 Ch. 276; 72 L. J. Ch. 159; 88 L. T. 246; 51 W. E. 403 56 AUan V. Backhouse [1813], 2 V. & B. 65; 13 E. E. 23; affd. Jac. 631; 23 E. E. 167 159, 160 Allan V. Gott [1872], L. E. 7 Ch. 439; 41 L. J. Ch. 571; 20 W. E. 427; 20 L. T. 412 342 AUen -a. Callow [1796], 3 Ves. 289 356 XXIV TABLE OF CASKS. PAGE AUgood V. Blake [1872], L. E. 7 Ex. 329; [1873], L. E. 8 Ex. 160. 15 Anoaater (Duke of) v. Mayer [1775], 1 Br. C. 0. 454; White & Tudor'a L. C, 8th ed., 1 336 Andrew v. Andrew [1875], 1 Ch. D. 411; 45 L. J. Ch. 232; 34 L. T. 82; 24 W. E. 349 288 Andrews v. Emmot [1788], 2 Br. C. C. 297 33 Andrews v. Partington [1791], 2 Cox, 223; 3 Br. C. C. 401 100 Andros, Ee. Andrea i. Andrea [1883], 24 Ch. D. 637; 52 L. J. Ch. 793; 49 L. T. 163; S2 W. E. 30 11 Anon. [1571], Dyer, 303b 247 Anstruther v. Chalmer [1826], 2 Sim. 1; 4 L. J. Ch. 123; 29 E. E. 48 10 Appleton, Ee, Barber v. Tebbit [1885], 29 Ch. D. 893; 54 L. J. Ch. 954; 52L. T. 900; 49 J. P. 708 362 Archer's Case [1598], 1 Eep. 66b; Cro. Eliz. 453; 2 And. 37.. .213, 214 Armitage v. Williams [1859], 7 W. R. 650; 27 Bea. 346; 122 E. E. 424 103 Armstrong v. Eldridgc [1791], 3 Br. C. C. 215 249 Arnold x. Att.-Gen. [1698], Show. P. C. 22 88 Arrow v. Melliah [1847], 1 De G. & S. S.W; 75 E. E. 135 150,151 Arrowgmith's Trusts, Ee [1858], 27 L. J. Ch. 704; 4 Jur. (N". S.) 1123; 6 W. E. 642 65 Ashley v. Ashley [1833], 6 Sim. 358; 3 L. .J. (N". S.) Ch. 61; 38 E. E. 139 248 Ashmorc'.^ Trusts, Re [1869], L. R. 9 Eq. 99; 39 L. J. Ch. 202... 275 Aahton v. Ashton [1735], 3 P. Wma. 384; Cas. t. Talb. 152 354 Aspinall V. Petvin [1824], 1 S. & St. 544; 2 L. J. (0. S.) Ch. 121; 24 R. R. 222 219 Athcrton v. Crowther [1854], 19 Bea. 448; 2 W. R. 639; 105 R. E. 205 142 Atkins ;-. Hiococka [1737], 1 Atk. 500 271 Atkinson, Re, Wilson v. Atkinaon, [1892] 3 Ch. 52; 61 L. J. Ch. 504; 66 L. T. 717; 40 W. E. 666 148 Atkinson, Ee, Atkinson v. Atkinson [1911], 103 L. T. 860; 80 L. J. Ch. 370 198 Atkinson v. Barton [1861], 10 W. R. 281; 3 D. P. & J. 339; 31 L. J. Ch. 410; 5 L. T. N. S. 812; 130 R. R. 159; revd. [1863], (Atkinson v. Holtby), 10 H. L. C. 314; 32 L. J. Ch. 735; 9 Jur. (N. S.) 503; 8 L. T. 583; 11 W. R. 544; afEg. 31 Bea. 272; 9 W. E. 885 247, 248 Atkinson v. Holtby [1863], 10 H. L. C. 314; 32 L. J. Ch. 735; 9 Jur. (N. S.) 503; 8 L. T. 583; 11 W. E. 544 .248 n. Att.-Gen. v. Brazenose College [1834], 2 CI. & Fin. 295; 8 Bli. (N. S.) 377; 1 L. J. (N. S.) Ch. 66; 37 E. E. 107 '. 87 Att.-Gen. v. Bristol (Mayor of) [1818], 2 J. & W. 294; 3 Madd. 319; 22 E. E. 136 87, 88 Att.-Gen. v. Drapers' Company [1841], 4 Bea. 67; 55 E. E. 20... 89 Att.-Gen. v. JefEerys, [1908] A. C. 411; 77 L. J. Ch. 684; 99 L. T. 737; 24T. L. E. 793; 52 Sol. J. 660 367 TABLE OF CASES. XXV PAOE Att.-Gen. v. Johnson [1753], Amb. 190 86 Att.-Gen. v. Johnstone [1769], Amb. 577 54 Att.-Gen. v. Price [1810], 17 Ves. 371 137 Att.-Gen. v. Skinners' Company [1826], 2 Russ. 407; 5 Madd. 173; Jac. 629; 26 R. R. 126 86, 89 Att.-Gen. v. Trinity College, Cambridge [1857], 24 Bea. 383; 116 E. R. 156 87 Att.-Gen. v. Vigor [1803], 8 Ves. 256; 90 R. R. 833 49 Att.-Gen. v. Was Chandlers' Company [1873], L. R. 6 H. L. 1; 28 L. T. 681; 42 L. J. Ch. 425; 21 W. R. 361 86 Att.-Gen. V. Wilkinson [1866], L. R. 2 Eq. 816; 12 Jur. (N. S.) 593; 14 L. T. 725; 14 W. R. 910 38 Attwater v. Attwater [1853], 18 Bea. 330; 23 L. J. Ch. 692; 2 W. R. 81j 18 Jur. 50; 22 L. T. 0. S. 150; 104 R. R. 458... 221 Andsley v. Horn [1860], 1 D. F. & J. 226; 29 L. J. Ch. 201; 6 Jur. (N. S.) 205; 8 W. R. 150; 1 L. T. N. S. 317; 125 R. E. 424; a.Sg. 26 Bea. 195; 28 L. J. Ch. 293; 4 Jur. (N. S.) 1267 243, 245 Avison V. Simpson [1859], Johns. 43; 5 Jur. (N. S.) 594; 7 W. R. 277; 123 R. R. 16 129 Aylwin's Trusts, Re [1873], L. R. 16 Eq. 585; 42 L. J. Ch. 745; 28 L. T. 865; 21 W. R. 864 96 B. Bagley v. MoUard [1830], 1 R. & My. 581; 8 L. J. (0. S.) Ch. 145; 32 R. R. 281 Ill Bagot, Ee, Paton v. Ormerod, [1893] 3 Ch. 348; 69 L. T. 399; 62 L. J. Ch. 1006 54 Bailey, Ee, Bailey v. Bailey [1879], 12 Ch. D. 268; 48 L. J. Ch. 628; 27 W. E. 909; 41 L. T. 157 333, 335 Bain v. Lescher [1840], 11 Sim. 397; 54 E. R. 408 92 Bainbridge v. Ashburton (Lord) [1836], 2 Y. & C. Ex. Eq. 347; 47 R. R. 429 46, 48 Baines v. Ottey [1832], 1 My. & K. 465; 1 L. J. Ch. 210; 36 R. R. 352 143 Baker v. Mosley [1848], 12 Jur. 749; 84 E. R. 869 200 Baker 1). Parson [1872], 42 L. J. Ch. 228 180 Baker v. White [1875], L. E. 20 Eq. 168; 44 L. J. Ch. 651; 33 L. T. 347; 23 W. E. 670 175, 180 Baldwin v. Rogers [1853], 3 D. M. & G. 649; 17 Jur. 267; 22 L. J. Ch. 665; 98 E. R. 267 90, <)5 Ballance, Re. Ballanoe v. Lanphier [1889], 42 Ch. D. 62; 58 L. J. Ch. 53t; 61 L. T. 158; 37 W. E. 600 55 Balls, Ee, Trewby v. Balls, [1909] 1 Ch. 791; 78 L. J. Ch. 341; 100 L. T. 780 345 XXVI TABLE OF CASES. PAOK Bank of Ireland v. M'Carthy, [1898] A. C. 181; 67 L. J. P. C. 13; 77 L. T. 777 348. Banks, Re, Banks v. Busbridge, [1905] 1 Ch. 547; 74 L. J. Ch. 336; 92 L. T. 225 336, 338, 339 Barber, Ex parte [1832], 5 Sim. 451 65 BardsweU v. BardsweE [1839], 9 Sim. 319; 7 L. J. (N. S.) Ch. 268; 47 R. R. 232 204 Barker, Re, Capon v. Flick [1905], 92 L. T. 831 102 Barker v. Barker [1852], 5 De a. & Sm. 753; 21 L. J. Ch. 794; 17 Jur. 125; 19 L. T. (0. S.) 268; 90 R. E. 223 303 Barker v. Cooks [1843], 6 Bea. 82; 63 R. R. 17 308 Barker v. Greenwood [1838], 4 M. & W. 421; 8 L. J. (N. S.) Ex. 5; 51 R. R. 666 174, 175, 182 Barker v. Gyles [1727], 3 Bro. P. C. Toml. 104; affg. [1725], 2 P. Wms. 280; 9 Mod. 157; 14 Vin. 481; 2 Eq. Cas. Ab. 536, pi. 4 317 Barlow v. Orde [1870], L. R. 3 P. C. 164; 18 W. R. 737; 6 Moo. P. C. C. (N. S.) 437 11 Barnes v. Patch [1803], 8 Ves. 604; 7 R. R. 127 72, 120, 149 Barnet v. Barnet [1861], 29 Bea. 239; 131 R. R. 546 220 Barraclough v. Cooper [1905], [1908] 2 Ch. 121 n 298 Barrett v. White [1855], 24 L. J. Ch. 724; 1 Jur. (N. S.) 652; 3 W. R. 578; 101 R. R. 891 71 Harrington v. Tristram [1801], 6 Ves. 345; 5 R. R. 322 101 Bartholomew's Trusts, Re [1849], 1 Mac. & G. 354; 1 H. & Tw. 565; 19 L. J. (N. S.) Ch. 237; 14 Jur. 181; affg. 16 Sim. 585; 84 R. R. 95 270 Bastard v. Proby [1788], 2 Cox, 6 231 Bathurst v. Errington [1877], 2 A. C. 698; 46 L. J. Ch. 748; 25 W. R. 908; 37 L. T. 338; 4 Ch. D. 251 4n. Batsford v. Kebbell [1797], 3 Ves. 363; 4 R. R. 15 274, 275 Bawden, Re, National Provincial Bank of England v. Cresswell, [1894] 1 Ch. 693; 42 W. R. 233; 63 L. J. Ch. 412; 8 R. 76; 70 L. T. 526 59, 345 Beaohcroft v. Beachcroft [1816], 1 Mad. 430; 16 R. R. 242 110 Bearpark v. Hutchinson [1830], 7 Bing. 178; 4 M. & Pay. 848; 9 L. J. C. P. 1; 33 R. R. 428 165 Beauclerk v. Dormer [1742], 2 Atk. 308 258 Beaumont v. Fell [1723], 2 P. Wms. 141 19 Beotive v. Hodgson [1864], 10 H. L. C. 658; 10 L. T. 202; 3 N. R. 654; 12 W. R. 625; 10 Jur. (N. S.) 373 57 Bedson's Trusts, Re [1885], 28 Ch. D. 523; 54 L. J. Ch. 644; 62 L. T. 554; 33 W. R. 386; affg. 25 Ch. D. 458 96 Begley v. Cook [1856], 3 Dr. 662; 5 W. R. 66; 28 L. T. 0. S. 138; 106 R. R. 476 248 Belaney v. Belaney [1868], L. R. 2 Ch. 138; 36 L. J. Ch. 265; 16 L. T. 269; 15 W. R. 369; 12 Jur. (N. S.) 445; affg. L. R. 2 Eq. 210 74 Belk 1'. Slack [1836], 1 Kee. 238; 44 R. R. 71 318 TABLE OF CASES. XXVll PAOE Bellairg v. Bellairs [1874], L. R. 18 Bq. 510; 43 L. J. Ch. 669; 22 W. R. 942 283 Bellia' Trusts, Re [1877], 5 Ch. D. 504; 46 L. J. Ch. 353; 36 L. T. 644; 25 W. R. 456 47 Bench v. Biles [1819], 4 Mad. 187; 20 R. R. 292 346 Benn, Re, Benn v. Benn [1885], 29 Ch. D. 839; 53 L. T. 240; 34 W. R. 6 250 Bennett's Trust, Re [1857], 3 K. & J. 280; 112 R. R. 149 302 Bennett v. Houldsworth [1911], 104 L. T. 304; 55 Sol. J. 270 148 Bennett v. Marshall [1856], 2 K. & J. 740; 110 R. R. 448 18, 19 Benson v. Whittam {or Hemming v. Whittam) [1831], 5 Sim. 22; 1 L. J. (N. S.) Ch. 94; 2 Sim. 493; 35 R. R. 113 205 Bent V. CuUen [1871], L. R. 6 Ch. 235; 40 L. J. Ch. 250; 19 W. R. 368 168 Berkeley v. Swinburne [1848], 16 Sim. 275; 17 L. J. Ch. 416; 12 Jur. 571 278 Bernal v. Bernal [1838], 3 My. & Cr. 559; C. P. Coop. 55; 7 L. J. (N. S.) Ch. 116; 2 Jur. 273; 45 R. R. 330 10, 211 Bernard v. MinshuU [1859], Johns. 276; 28 L. J. Ch. 649; 5 Jur. (N. S.) 931; 123 R. R. 114 30, 53, 54, 199, 206 Bernasconi v. Atkinson [1853], 10 Hare, 345; 20 L. T. 0. S. 217; 17 Jur. 128; 1 W. R. 125; 90 R. R. 387 18 Berry v. Berry [1861], 3 Gif. 134; 4 L. T. 635; 7 Jur. (N. S.) 752; 9 W. R. 889 113 Berry v. Briant [1862], 2 Dr. & Sm. 1; 31 L. J. Ch. 327 316 Besooby v. Pack [1823], 1 S. & St. 500; 2 L. J. (0. S.) Ch. 17; 24 R. R. 217 67 Bevan's Trusts, Re [1887], 34 Ch. D. 716; 56 L. J. Ch. 652; 56 L. T. 277; 35 W. R. 400 269 Beverley (Mayor of) v. Att.-Gen. [1857], 6 PI. L. C. 310; 27 L. J. Ch. 66; 3 Jur. (N. S.) 871; 108 R. R. 123 86,89 Bickham v. Cruttwell [1838], 3 My. & Cr. 763; 7 L. J. (N. S.) Ch. 198; 2 Jur. 342; 45 R. R. 380 330 Bilham, Re, Buchanan v. HQl, [1901] 2 Ch. 169; 70 L. J. Ch. 518; 84 L. T. 499; 49 W. R. 483 251 Birch, Re, Hunt v. Thorn, [1909] 1 Ch. 787; [1909] W. N. 85; 75 L. J. Ch. 385; 101 L. T. 101 330 Bird V. Luckie [1850], 8 Hare, 301; 14 Jur. 1015; 85 R. R. 297.. .4, 131 Birdsall -6/. York [1859], 5 Jur. (N. S.) 1237; 115 R. R. 1063... 119 Birks, Re, Kenyon v. Birks, [1900] 1 Ch. 417; 69 L. J. 124; 81 L. T. 741 119 Birmingham v. Kirwan [1805], 2 Sch. & Lef. 444 326, 327 Biss V. Smith [1857], 2 H. & N. 105; 26 L. J. Ex. 295; 29 L. T. 0. S. 164; 5 W. R. 610 215 Blackborn v. Edgley [1719], 1 P. Wma. 600 246 Blacklow V. Laws [1842], 2 Hare, 40; 62 R. R. 11 156 Blaokman u. Fysh, [1892] 3 Ch. 209; 67 L. T. 802; 2 R. 1 96 Blackmore v. Snee [1857], 1 De G. & J. 455; 118 R. R. 170 314 Blackwell v. Bull [1836], 1 Keen, 176; 5 L. J. (N. S.) Ch. 251; 44 R. R. 62 121, 221 XXVIU TABLE OF CASES. PAOE BJagrave «>. Blagrave [1849], i Ex. 550; 19 L. J. Ex. 414; 80 R. R. 686 178, 179, 185, 186 Bland „. Williams [1834], 3 My. & K. 411; 3 L. J. (N. S.) Ch. 218; 41 E. R. 93 269 Blann v. BeU [1852], 5 De G. & S. 658; affd. 2 De G. M. & G. 775; 22 L. J. Ch. 236; 16 Jur. 1103; 95 E. R. 318 162, 163 Blasson v. Blasson [1864], 2 D. J. & S. 665; 11 L. T. 353; 5 N. R. 65; 13 W. R. 113; 34 L. J. Ch. 18; 10 Jur.. (N. S.) 1113 105 Blease v. Burgh [1840], 2 Bea. 221; 9 L. J. (N. S.) Ch. 226; 50 R. R. 165 271 Blewitt V. Roberts [1841], Cr. & Ph. 274; 10 L. J. Ch. 342; 5 Jur. 979; revg. 10 Sim. 491; 9 L. J. (N. S.) 209; 4 Jur. 501; 54 E. R. 291 164, 1G8 Blight V. HartnoU [1881], 19 Ch. D. 294; 51 L. J. Ch. 162; 45 L. T. 524; 30 W. R. 513; afpd. [1883], 23 Ch. D. 218; 52 L. J. Ch. 672; 48 L. T. 543; 31 W. R. 535 52, 53, 54, 169 Blount V. Hipklns [1834], 7 Sim. 43; 4 L. J. (N. S.) Ch. 13; 40 R. R. 74 338 Blower's Trusts, Re [1871], L. R. 6 Ch. 351; 42 L. J. Ch. 24; 25 L. T. 181; 19 W. R. 666; revg. L. R. 11 Eq. 97 114 Blundell v. Gladstone [1841—2], 1 Ph. 279; 11 Sim. 467; 12 L. J. (N". S.) Ch. 22.5; 5 Jur. 481; 7 Jur. 269; affd. [1847— 1848] (Camoys v. BlundeU), 1 H. L. C. 778 '. 18 Boddington. Re, Boddington v. Clairat [1884], 25 Ch. D. 685; 53 L. J. Ch. 475; SO L. T. 761; 32 W. R. 448 163 Bone V. Cook [1824], M'Cl. 188; 13 Price, 332; 28 R. R. 697.. .294, 295 Boorer, Re, Boorer v. Boorer, [1908] W. N. 189 67 Booth v. Booth [1799], 4 Ves. 399; 4 R. R. 235 278 Booth V. Coulton [1870], L. R. 5 Ch. 684; 39 L. J. Ch. 622; 18 W. R. 877 161 Bootle V. Blundell [1815], 1 ller. 193; 19 Ves. 494; G. Coop. 136; 15 R. R. 93 7, 159, 160, 161, 336, 337 Boraston's Case [1587], 3 Rep. 16a; 2 Ro. Ab. 419; Eq. Ab. 190; Tudor's L. C, 4th ed., p. 427 284, 285, 286 Borton v. Dunbar [1859], 2 GifiE. 221; affd. [1860], 2 D. P. & J. 338; 30 L. J. Ch. 8; 3 L. T. 519; 9 W. R. 41; 6 Jur. (N. S.) 1128 76 Bothamley v. Sherson [1875], L. R. 20 Eq. 304; 44 L. J. Ch. 689; 23 W. E. 848; S3 L. T. N. S. 150 Boughton V. Boughton [1848], 1 H. L. C. 406; varying (Boughton V. James), 1 Coll. C. C. 26; 8 Jur. 329; 73 E. E. 116 341,342 Boughton V. James, 1 Coll. C. C. 26 (see above) 226 Boulton V. Beard [1853], 3 D. M. & G. 608; 98 E. R. 252 261 Bouverie v. Bouverie [1847], 2 Ph. 349; 16 L. J. Ch. 411; 11 Jur. 661; 78 R. R. Ill 311,316 Bowen v. Barlow [1872], L. R. 8 Ch. 171; 42 L. J. Ch. 82; 27 L. T. 733; '21 W. E. 149; affg. [1871], L. R. 11 Eq. 458 50 Bowen v. Lewis [1884], 9 A. C. 890; 54 L. J. Q. B. 55; 52 L- T. 189 256 352 TABLE OF CASES. XXIX PAGE Bowen v. Scowcroft [1837], 2 Y. & C. Ex. Eq. 640; 7 L. J. (N. S.) Ex. Eq. 25 307 Bowers v. Bowers [1870], L. E. 5 Oh. 244; 39 L. J. Ch. 351; 18W. E. 301; 23L. T. 33; revg. 21 L. T. 134 310 Bowman, Re, Whitehead v. Boulton [1889], 41 Ch. D. 525; 60 L. T. 888; 37 W. R. 583 250, 251 Boyea v. Bedale [1863], 1 H. & M. 798; 33 L. J. Ch. 283; 10 Jur. (N. S.) 196; 10 L. T. 131; 12 W. R. 232 10, 11 Boyes v. Cook [1880], 14 Ch. D. 53; 49 L. J. Ch. 350; 42 L. T. 556; 28 W. R. 754 15n, 23 Brace, Re, Welch v. Colt, [1891] 2 Ch. 671; 60 L. J. Ch. 505; 64 L. T. 525; 39 W. R. 508 30 Bradley v. Cartwright [1877], L. R. 2 C. P. 511; 36 L. J. C. P. 218; 16 L. T. 587; 15 W. R. 922 239, 241 Bradshaw v. Melling [1853], 19 Bea. 417; 23 L. J. Ch. 603; 105 R. R. 194 118 Braithwaite v. Britain [1836], 1 Keen, 206; 44 R. R. 56 335 Bramley, In bonis, [1902] P. 106; 71 L. J. P. 32; 85 L. T. 645... 67 Branstromi). Wilkinson [1802], 7 Ves. 421; 6 E. E. 146 277 Bray v. Stevens [1865], 12 Ch. D. 162 345 Braybroke (Lord) v. Inakip [1803], 8 Ves. 417; 7 E. R. 106; Tudor's L. C, 4th ed., 322 46,49 Bree v. Perfect [1844], 1 Coll. C. C. 128; 8 Jur. 282; 66 E. E. 35 269 Bridget-. Abbott [1791], 3 Br. C. C. 224 143,144 Bridgwater -o. Bolton [1702], 1 Salk. 236 72 Brierley, Re, Brierley v. Brierley [1895], 43 W. R. 36; 12 R. 55... 78 Briggs V. Penny [1849], 16 Jur. 93; 18 L. T. 0. S. 101; 3 Mac. & G. 546; 21 L. J. Ch. 265; affg. 3 De G. &S. 525; 13 Jur. 905; 87 E. E. 192 196, 197, 201, 206 Bright V. Larcher [1858], 3 De G. & J. 148; 5 Jur. (N. S.) 1283; 28 L. J. Ch. 837; 7 W. R. 658; on appeal, 4 De G. & J. 608; 121 R. R. 50 344 Bright u. Eowe [1835], 3 My. & K. 316; 41 R. R. 75 262, 2G4, 321 Bristowj;. Warde [1794], 2 Ves. Jun. 336; 2 R. R. 235 225 Britton v. Twining [1817], 3 Mer. 176; 17 E. E. 53 232 Bromfield v. Crowder [1805], 1 B. & P. N. E. 313; 8 E. R. 805... 285, 287 Bromheadt-. Hunt[1821], 2J. &W. 459; 22 R. R. 200 261 Bromley v. Wright [1849], 7 Hare, 334; 82 R. R. 136 349 Brook V. Brook [1856], 3 Sm. & G. 280 81, 201 Brooke, Re, Brooke v. Brooke, [1894] 1 Ch. 43; 63 L. J. Ch. 159; 70 L. T. 71; 42 W. R. 186 188, 334 Brown, Ee [1855], 1 K. & J. 522; (Re Brown's Trusts), 3 W. R. 642; 103 R. R. 216 59 Brown, Re, Golding v. Brady [1910], 54 Sol. J. 251; 26 T. L. R. 257 113 Brown, Re, Walsh v. Browne [1890], 62 L. T. 899 112 Brown and Sibley's Contract, Re [1876], 3 Ch. D. 156; 24 W. E. 782 47 XXX TABLE OF CASES. PAGE Brown v. Bigg [1802], 7 Ves. 279 317 Brown V. Higgs [1799—1803], 4 Ves. 708; 5 Ves. 495; 8 Ves. 661; 18 Ves. 192; 4 E. R. 323 77, 78, 79, 81, 82, 83 Brown v. Pocock [1833], 6 Sim. 257; 38 K. E. 107 78 Brown v. Whiteway [1846], 8 Hare, 145; 85 R. R. 261 183 Brown v. Wooler [1843], 2 Y. & C. C. 0. 134; 60 R. R. 82 281 Browne v. Browne [1857], 3 Sm. & G. 568; 107 R. R. 167 289 Browne v. De Laet [1794], 4 Br. C. C. 527 7 Browne v. Hammond [1858], Johns. 210; 123 R. R. 78 95 Browne v. Kenyon (Lord) [1818], 3 Mad. 410; 18 R. R. 261... 318, 319 Browne v. Paull [1850], 1 Sim. (N. S.) 92; 20 L. J. Ch. 75; 15 Jur. 5; 89 R. R. 31 205 Bubb V. Yelvorton [1871], L. R. 13 Eq. 131; 20 W. R. 164 363 Buck d. Whalley v. Nurton [1797], 1 B. & P. 53; 4 R. R. 762 ... 5 Buekenham v. Cook [1708], Holt, 248; S.C. (Bunter v. Coke), 1 Salk. 237; (Bunker v. Cook), 3 Br. P. C. 19 28 Buckle, Re, Williams v. Marson, [1894] 1 Ch. 286; 7 R. 72; 63 L. J. Ch. 330; 70 L. T. 115; 42 W. R. 229 362 Buckle V. Pawoett [1852], 4 Hare, 536; 9 Jur. 891 118, 313 Buckmere's Case [1610], 8 Rep. 86 258 BufEar v. Bradford [1741], 2 Atk. 220 243 Bull V. Pritohard [1846—7], 5 Hare, 567; 16 L. J. Ch. 185; 11 Jur. (N. S.) 34; 71 R. E. 229 288, 289 Buller, Re, BuUer v. Giberne [1885], 74 L. T. 406 67 Bullock V. Downes [1860], 9 H. L. C. 1; 3 L. T. N. S. 194; 131 R. R. 1; affg. (Downes v. Bullock), 25 Bea. 54 126, 127, 128, 131, 133, 135, 138, 144, 146 Bullock V. Stones [1754], 2 Ves. Sen. 521 57 Burdus V. Dixon [1858], 4 Jur. (N. S.) 967; 6 W. R. 427; 111 R. R. 920 50 Burgess v. Burgess [1844], 1 Coll. C. C. 367; 8 Jur. 660; 66 E- B. 98 363 Burke v. Annis [1853], 11 Hare, 232 172 Burrough v. Philcox [1840], 5 My. & C. 72; 5 Jur. 453; 48 R- R- 236 77, 78, 79 Burt V. Hellyar [1872], L. E. 14 Eq. 160; 41 L. J. Ch. 430; 26 L- T. 833 121, 301 Burton's Will, Ee, Banks v. Heaven, [1892] 2 Ch. 38; 61 L. J. Ch. 702; 67 L. T. 221 61 Burton v. Powers [1857], 3 K. & J. 170; 26 L. J. Ch. 330; 5 W. R. 242 '. 172 Bush V. Cowan [1863], 32 Bea. 228 54 Butler V. Butler [1885], 28 Ch. D. 66; 54 L. J. Ch. 197; 52 L. T. 90; 33 W. E. 192 ' 4^ Butler V. Gray [1870], L. E. 5 Ch. 26; 39 L. J. Ch. 291 78 Butler V. Lowe [1839], 10 Sim. 317; 3 Jur. 1143; 51 R. E. 259... 93 Butler V. Ommaney [1827], 4 Euss. 70; 6 L. J. (0. S.) Ch. 54; 28 E. R. 6 OQQ Butler V. Stratton [1791], 3 Br. C. C. 367 !!!!!"" 149 TABLE OF CASES. XXXI PAGE Byae -v. Blackburn [1858], 26 Bea. 41; 27 L. J. Oh. 788; i Jur. (N. S.) 803; 6 W. R. 861; 122 R. R. 17 205 Byrom v. Brandreth [1873], L. R. 16 Eq. 475; 42 L. J. Ch. 824; 21 W. R. 942 68 Byron's Settlement, Re, Williams v. Mitchell, [1891] 3 Ch. 474; 60 L. J. Ch. 807; 65 L. T. 218; 40 W. R. 11 31 Bythesea v. Bythesea [1854], 23 L. J. Ch. 1004; 2 W. R. 667; 98 R. R. 467; affg. 17 Jur. 645; 1 W. R. 257 261, 264 Cable V. Cable [1853], 16 Bea. 507; 96 R. R. 243 133 Cadogan, Re, Cadogan u. Pelagi [1883], 25 Ch. D. 154; 49 L. T. 666; 32 W. R. 67; 53 L. J. Ch. 207 67,71 CaUow V. Callow [1889], 42 Ch. D. 550; 58 L. J. Ch. 698; 38 W. R. 104 67 Calvert v. Sebbon [1841], 4 Bea. 222; 55 R. R. 58 363 Cambridge v. Rous [1802], 8 Ves. 12; 6 R. R. 199 52, 53, 305 Camfield ■,,. Gilbert [1803], 3 East, 516; 7 R. R. 892 74,75 €amoy3 v. Blundell [1847—8], 1 H. L. C. 778; 73 R. R. 257; afEg. (Blundell v. Gladstone), 1 Ph. 279; 12 L. J. Ch. 225; 7 Jur. 269; 11 Sim. 467 18 Campbell's Trusts, Re [1886], 33 Ch. D. 98; 55 L. J. Ch. 911; 55 L. T. 763; 34 W. R. 629; a£Eg. 31 Ch. D. 685; 55 L. J. Ch. 389; 54 L. T. 419; 31 W. R. 396 151 Candy v. CampbeU [1834], 2 CI. & Fin. 421; 8 Bli. (N. S.) 469; 37 R. R. 655; aflfg. (Campbell v. Harding), 2 R. & My. 390... 258 Cantley, Re [1853], 17 Jur. 124; 94 R. R. 104; (Ex parte Cautley) 22 L. J. Ch. 391 65 Carter, Re, Dodds v. Pearson, [1900] 1 Ch. 801; 69 L. J. Ch. 423; 82 L. T. 526; 48 W. R. 555 50 Carter v. BentaU [1840], 2 Bea. 551; 9 L. J. (N. S.) Ch. 303; 4 Jur. 691; 50 R. R. 283 241 Carter v. Taggart [1848], 16 Sim. 423; 80 R. R. 113 57 Cartwright v. Vawdry [1800], 5 V63. 530; 5 R. R. 108 Ill Carver v. Burgess [1853], 18 Bea. 541; affd. 7 D. M. & G. 96; 24 L. J. Ch. 401; 3 W. R. 308; 3 Eq. R. 421 312 Gary v. Gary [1804], 2 Soh. & L. 173 196 Caaamajor v. Strode [1843], 8 Jur. 14; 69 R. R. 899 260 Casterton v. Sutherland [1804], 9 Ves. 445 79 Cautley, Ex parte [1853], 22 L. J. Ch. 391; (Re Cantley), 17 Jur. 124; 1 W. R. 158; 94 R. R. 804 66 ■ChaUenger v. Shephard [1800], 8 T. R. 597 172, 173, 334 Chajnberlayne v. Chamberlayne [1856], 6 EU. & Bl. 625; 25 L. J. Q. B. 357; 4 W. R. 614; 2 Jur. (N. S.) 258; 106 R. R. 736... 214 XXXH TABLE OF CASES. PAGE Chambers v. Taylor [1837], 2 Myl. & Cr. 376; 6 L. J. (N. S.) Ch. 193; 45 K. E. 94 209, 213 Chancey's Case [1717], 1 P. Wms. 408; 10 Mod. 399; 2 Eq. Ca. Ab. 354, pi. 18; Wli. & Tud. L. C. 8th ed. vol. ii. p. 379 350, 351 Chandos (Duke of) v. Talbot [1731], 2 P. Wma. 601 281, 283 Chapman's Case [1573], Dyer, 333b 121n Charge v. Goodyer [1826], 3 Euss. 140; 27 E. E. 42 116 Charter v. Charter [1874], L. E. 7 H. L. 364; 43 L. J. P. 43 14,19 Ghaston, Ee, Chaaton u. Seago [1881], 18 Ch. D. 218; 50 L. J. Ch. 716; 45 L. T. 20; 29 W. E. 778 262, 321 Chatham v. TothiU [1771], 7 Br. P. C. 453 232 Chatteris v. Young [1827], 2 Euss. 183; a%. 6 Mad. 30; 26 E. E 44 361 Chester v. Chester [1727], 3 P. Wms. 56; 2 Eq. Ca. Ab. 330, pi. 9; Eitzg. 150 43 CHchester v. Quatrefages, [1895] P. 186; 64 L. J. P. 79; 43 W. E. 667; 72 L. T. 475; 11 E. 605 357 ChUd V. Elsworth [1852], 2 D. M. & G. 679; 95 E. E. 285 12 Chinery, Ee, Chinery v. Hill [1888], 39 Ch. D. 614; 57 L. J. Ch. 804; 59 L. T. 303 299 Cholmondeley v. Cholmondeley [1845], 14 Sim. 590; 65 E. E. 650 199 Christie v. Ovington [1875], 1 Ch. D. 279; 24 W. E. 204 45 Christopherson v. Naylor [1816], 1 Mer. 320; 15 E. E. 120. ..298, 299 Church V. Mundy [1808], 12 Ves. 426; 15 Vea. 396 7, 42 Churchill v. Dibben [1753], 9 Sim. 447n.; 1 Sug. Pow., 6th ed., 407 35 Clanoarty u. Clancarty, [1893] 31 L. E. Ir. 530 201 Clapton V. Bulmer [1840], 10 Sim. 426; affd. 5 My. & Cr. 108; 9 L. J. (N. S.) Ch. 261; 4 Jur. 288; 5 Jur. 477; 51 E. E. 287... 134 Clay, Ee, Clay v. Clay [1885], 52 L. T. 641; 54 L. J. Ch. 648; a£Eg. 32 W. E. 516 142n Clayton v. Lowe [1822], 5 B. & Aid. 636; 24 E. E. 509 310 Clayton v. Nugent (Lord) [1844], 13 M. & W. 200; 13 L. J. Ex. 363; 67 E. E. 560 20 Clere's Case [1-599], 6 Eep. 17b; Cro. Eliz. 877 33 Clergy Society, Ee [1856], 2 K. & J. 615; 110 E. E. 396 18 Clifford, Ee, Mallam v. McFie, [1912] 1 Ch. 29; 106 L. T. 14; 56 Sol. J. 91; 28 T. L. E. 57; 81 L. J. Ch. 220 27 Clifford v. Koe [1880], 5 A. C. 447; 43 L. T. 322; 24 W. E. 633... 243 Clifford V. Lewis [1821], 6 Mad. 33; 22 E. E. 228 331 Clifton V. Goodbun [1868], L. E. 6 Eq. 278 112 Cloughj). Wynne [1817], 2 Mad. 188 163 Cloves V. Awdry [1850], 12 Bea. 604; 85 E. E. 357 30 Clowdsley v. Pelliam [1686], 1 Vern. 411 ; Eq. Ca. Ab. 198, pi. 2... 335 Clowes, Ee, [1893] 1 Ch. 214; 68 L. T. 395; 41 W. E. 69- 2 E. 115 50 Cloyne (Bishop of) v. Young [1750], 2 Ves. Sen. 91 366 Coard •«. Holderness [1855], 20 Bea. 147; 24 L. J. Ch. 388; 1 Jur. (N. S.) 316; 3W. E. 311; 109 E. E. 378 72 TABLE OP CASES. XXXIU PAGE Cobbold, Ee, Cobbold v. Lawton, [1903] 2 Ch. 299; 72 L. J. Ch. 588; 88 L. T. 745 261 Cooterell v. Barber [1826], 2 Euss. 585; 5 L. J. Ch. 77; 1 Sim. 23; 28 R. E. 181 363 Coe V. Bigg [1862], 1 N. E. 536 149 Cogswell V. Armstrong [1837], 2 K. & J. 227; 1 Jur. (N. S.) 1162; 110 E. E. 199 58 Cole V. Goble [1853], 13 C. B. 445; 22 L. J. C. P. 148; 17 Jur. 800; 1 W. E. 309 258 Cole V. Scott [1849], 1 Mac. & G. 518; 1 H. & Tw. 477; 19 I,. J. Ch. 63; 14 Jur. 25; 84 E. E. 141; afpg. 16 Sim. 259... 24 Cole V. Sewell [1843], 4 D. & War. 1; 6 Ir. Eq. E. 66;' 2 Con. & L. 344; affd. 2 H. L. C. 186; 12 Jur. 927; 65 R. E. 668; 81 E. E. 109 250 Cole V. Willard [1858], 25 Bea. 568; 4 Jur. (N. S.) 988; 6 W. E. 712; 119 E. E. 545 350, 351 Coles' Will, Re [1869], L. E. 8 Eq. 271 362 Collier v. McBean [1865], L. E. 1 Ch. 81; 34 Bea. 426; 11 Jur. (N. S.) 592; 34 L. J. Ch. 555 185 Collier v. Walters [1874], L. E. 17 Eq. 252; 43 L. J. Ch. 216; 29 L. T. 868; 22 W. E. 209 187 Collins V. Johnson [1835], 8 Sim. 356 n.; 4 L. J. (N. S.) Ch. 226; 41 E. E. 211 297 CoUis V. Eobins [1847], 1 De G. & S. 131; 16 L. J. Ch. 251; 11 Jur. 362; 75 E. R. 68 338 Collison V. Girling [1837], 4 My. & Cr. 63; 2 Jur. 983; affd. (Collison V. Curling) [1842], 9 CI. & Fin. 88; 6 Jur. 673... 51 Combe v. Hughes [1872], L. E. 14 Eq. 415; 41 L. J. Ch. 693; 20 W. E. 793; 27 L. T. 366 244 Compton V. Bloxham [1845], 2 Coll. C. C. 201; 9 Jur. 935; 70 E. E. 178 12 Congreve v. Palmer [1852], 16 Bea. 435; 23 L. J. Ch. 54; 1 W. E. 156; 96 E. E. 212 297 Conron v. Conron [1857], 7 H. L. C. 168; 115 E. E. 92 347, 348 Cook V. Dawson [1861], 29 Bea. 123; 30 L. J. Ch. 359; 7 Jur. (N. S.) 130; 3 L. T. N. S. 801; 9 W. E.' 305; affd. 3 D. F. & J. 127; 9 W. E. 434; 131 E. R. 486 332, 334 Cook V. Gerard [1668], 1 Saund. 181; 1 Lev. 212 221 Cooke V. Bowen [1839], 4 Y. & C. 244 96 Cookson V. Hancock [1836], 1 Keen, 817; 5 L. J. (N. S.) Ch. 245; affd. 2 My. & Cr. 606; 6 L. J. Ch. 56; 45 R. R. 136 9 Cooper V. Cooper [1861], 29 Bea. 229; 7 Jur. (N. S.) 178; 9 W. R. 354; 3 L. T. N. S. 800; 131 R. R. 540 279, 280 Cooper V. Cooper [1854], 1 K. & J. 658; 3 W. R. 470; 103 E. E. 306 309, 310 Cooper •■.. Day [1817], 3 Mer. 154 358, 361 Coote V. Boyd [1789], 2 Br. C. C. 521 357 Cope, Ee, Cross o. Cross, [1908] 2 Ch. 1; 77 L. J. Ch. 558; 99 L. T. 374 299 H. C XXXIV TABLE OF CASES. PAGE Coppard's Estate, Re, Hewlett v. Hodson [1887], 35 Ch. D. 350; 56 L. J. Cli. 606; 56 L. T. 359; 35 W. R. 473 102 Corballis v. C!orballis [1882], 9 L. E. Ir. 309 330, 339 Corbett's Trusts, Re [1859], Johns. 591; 29 L. J. Ch. 458; 6 Jur. (N. S.) 339; 8 W. R. 257; 123 R. R. 253 250 Corbyn v. French [1799], 4 Ves. 418; 4 R. R. 254 294 Cordall's Case [1593], Cro. Eliz. 315 176 Corlass, Re [1875], 1 Ch. D. 460; 45 L. J. Ch. 119; 33 L. T. 30; 24 W. E. 204 105 Corneck v. Wadman [1869], L. R. 7 Eq. 80 316, 317 Corsellis, Re, Freeborn u. Napper, [1906] 2 Ch. 316; 75 L. J. Ch. 607; 95 L. T. 583; 54 W. E. 536 113 Corser v. Cartwright [1875], L. E. 7 H. L. 731; 45 L. J. Ch. 605; affg. L. E. 8 Ch. 971; 29 L. T. 596; 21 W. R. 938 332 Cort V. Winder [1844], 1 Coll. C. C. 320; 66 E. E. 86 300, 301 Coryton v. Helyar [1745], 2 Cox, 340; 2 E. E. 75 7 Costabadie v. Costabadie [1847], 6 Hare, 410; 77 R. R. 160 205 Cotton u. Cotton [1839], 2 Bea. 67; 8 L. J. (N. S.) Ch. 349; 3 Jur. 886; 50 E. E. 99 143, 144 Coulthurst V. Carter [1852], 15 Bea. 421; 21 L. J. Ch. 555; 16 Jur. 532; 92 E. R. 489 298 Counden v. Clerke [1615], Moore, 860, pi. 1181; Hob. 29; Bq. Ca. Ab. 213, pi. 10; 1 Brownl. 129; Jenk. 294; Went. 445 ... 121 Courtenay, Re, Pearce v. Foxwell [1905], 74 L. J. Ch. 654 102 Couturier, Re, Couturier v. Shea, [1907] 1 Ch. 470; 76 L. J. Ch. 296 270 Couturier, Re, Couturier v. Shea [1907], 96 L. T. 560 112 Coward, Ee, Coward v. Larkman [1889], 60 L. T. 1 158 Cowman v. Harrison [1852], 22 L. J. Ch. 993; 17 Jur. 313; 1 W. E. 96; 10 Hare, 234; 90 R. E. 356 203 Coxwell's Trusts, Re, Kinlook-Cook v. Public Trustee, [1910] 1 Ch. 63; 79 L. J. Ch. 62; 101 L. T. 627 362 Cozens, Re, Miles v. Wilson, [1903] 1 Ch. 138; 72 L. J. Ch. 39; 87 L. T. 581; 51 W. R. 220 114, 115 Cradock v. Cradock [1858], 4 Jur. (N. S.) 626; 6 W. E. 710; 111 E. E. 884 147 Cranley v. Dixon [1857], 23 Bea. 512; 3 Jur. (N. S.) 531; 26 L. J. Ch. 529; 113 E. E. 242 219 Crause v. Cooper [1859], 1 J. & H. 207; 128 R. R. 327 302, 304 Craven, Re [1856], 23 Bea. 333; 113 R. R. 160 123 Crawford's Trusts, Ee [1853], 2 Dr. ■230;.2 Eq. E. 553; 23 L. J. Ch. 625; 18 Jur. 616; 2 W. E. 341 141, 142, 143, 144, 294 Crawhall's Trust, Re [1857], 8 D. M. & G. 480; 2 Jur. (N S ) 892- 114 R. R. 208 Sl'e^ 323 Crawshaw v. Crawshaw [1880], 14 Ch. D. 817; 49 L. J Ch 662- 43 L. T. 309; 29 W. R. 68; 40 R. R. 170 ' 55 Creaton v. Creaton [1856], 3 Sm. & G. 386; 26 L. J. Ch 266- 2 Jur. (N. S.) 1223; 5 W. E. 123; 107 R. E. 120 .'188, 334 Creeds. Creed [1844], 11 01. & Fin. 491; 65iE. R. 252; revg-. 1 Dr fi War. 416; 4 Ir. Eq. R. 299 ' 340 TABLE OF CASES. XXXV PAGE Cripps V. Wolcott [1819], 4 Mad. 15; 20 E. R. 268 312, 313, 314, 316, 317, 318 Crockett v. Crockett [1847], 2 Phil. 553; 17 L. J. Ch. 230; 12 Jur. 234; revg. 5 Hare, 326; 11 L. J. Ch. 278; 78 E. R. 183 204, 244 Crook V. Whitley [1857], 7 B. M. & G. 490; 3 Jur. (N. S.) 703; 26 L. J. Ch. 350; 5 W. R. 383; 109 E. E. 214 114 Crooke v. Brookeing (or Crook v. Brooking) [1688], 2 Vern. 50, 107 113 Crooke?;. DeVandea [1803], 9 Ves. 197; [1805], 11 Ves. 330 146 Crowder v. Clowes [1794], 2 Vea. Jun. 449 358, 360 Crowder v. Stone [1827—9], 3 Russ. 217; 7 L. J. (0. S.) Ch. 93; 27 R. E. 68 250,321 Crozier t,. Crozier [1843], 3 Dr. & War. 373; 2 Con. & L. 309; 5 Ir. Eq. E. 416; 61 E. E. 65 237, 238 Crozier v. Fisher [1828], 4 Euss. 398; 6 L. J. (0. S.) Ch. 118; 28 E. E. 141 311, 316 Crumpe v. Crumpe, [1900] A. C. 127; [1899] 1 Ir. 359; 69 L. J. P. C. 7; 82 L. T. 130 212 Crutchley, Ee, Kidson v. Marsden, [1912] 2 Ch. 335; 81 L. J. Ch. 644 252 Cruwys v. Colman [1804], 9 Vea. 319; 7 E. E. 210 137, 199 Cunliffe ^. Brancker [1876], 3 Ch. D. 393; 46 L. J. Ch. 128; 35 L. T. 578 182 Cunningham and Frayling, Ee, [1891] 2 Ch. 567; 39 W. E. 469; 60 L. J. Ch. 591; 64 L. T. 558 45 Cunningham v. Murray [1846], 1 D. G. & S. 366; 16 L. J. (N. S.) Ch. 484; 11 Jur. 814; on app. 17 L. J. Ch. 407; 12 Jur. 547.. 244 Curnickt). Tucker [1874], L. R. 17 Eq. 320 200, 202 D. Da Costa v. Keir [1827], 3 Eusa. 360; 5 L. J. (0. S.) Ch. 161; 27 R. R. 93 310 Dacre v. Patrickson [1860], 1 Dr. & Sm. 182; 6 Jur. (N". S.) 863; 29 L. J. Ch. 846; 8 W. R. 597, 647; 2 L. T. N. S. 500, 764; 127 R. R. 69 365 D'Almaine ■- Cursopp) [1838], 2 Keen, 653; 6 L. J. (N. S.) Ch. 261; 44 E. E. 305 77 Griffiths c. HamUton [1806], 12 Ves. 298 367 Griffiths V. Pruen [1840], 11 Sim. 202; 54 E. E. 345 363 Grimson v. Downing [1857], 4 Drew. 125; 5 W. R. 767; 113 R. E. 320 228 xlvi TABLE OF CASES. PAGE Groom, Ee, Booty v. Groom, [1897] 2 Ch. 407; 66 L. J. Ch. 778; 77 L. T. 154 84 Grosvenor v. Durston [1858], 25 Bea. 97; 119 E. R. 344 69 Gue, Re, Smith v. Gue [1892], 67 L. T. 823; aSg. 61 L. J. Ch. 510; [1892] W. N. 132; 40 W. R. 553 153 Gully V. Crejoo [1857], 24 Bea. 185; 116 R. R. 88 200, 202 Gun^moe v. Howes [1856], 23 Bea. 184; 3 Jur. (N. S.) 176; 26 L. J. Ch. 323; 5 W. R. 219; 113 R. R. 88 230 Gimdry v. Pinniger [1852], 14 Bea. 94; 20 L. J. Ch. 405; 16 Jur. 488; 17 L. T. 0. S. 217; a£Ed. 1 D. M. & G. 502; 21 L.J. Ch. 405; 92 R. R. 40 4, 125, 131, 135, 139 Guthrie v. Walrond [1883], 22 Ch. D. 573; 52 L. J. Ch. 165; 47 L. T. 614; 31 W. R. 285 58 Guyton and Rosenberg, R«, [1901] 2 Ch. 591; 70 L. J. Ch. 751; 85 L. T. 66; 50 W. R. 38 41 Gyett V. WiUiams [1862], 2 J. & H. 429; 6 L. T. 279 345, 346, 347 Haddelsey v. Adams [1856], 22 Bea. 266; 25 L. J. Ch. 826; 2 Jur. (N. S.) 724; 111 R. R. 356 182, 313 Hadwen v. Hadwen [1857], 23 Bea. 551; 113 R. R. 266 241 Hagger v. Payne [1857], 23 Bea. 474; 23 L. J. Ch. 617; 3 Jur. (N. S.) 479; 113 R. R. 231 99 Haig V. Swiney [1823], 1 Sim. & St. 487; 2 L. J. (0. S.) Ch. 26. .162, 163 Hale V. Pew [1858], 25 Bea. 335; 119 R. R. 437 225 Hales V. Darell [1840], 3 Bea. 324; 10 L. J. Ch. 10; 52 R. R. 138... 351 Hales X.. Margerum [1796], 3 Ves. 299 33 HaHhead v. Shepherd [1859], 28 L. J. Q. B. 248; (Halfhead V. Sheppard), 7 W. E. 480 83 HaU V. Hall, [1891] 3 Ch. 389; [1892] 1 Ch. 381; 61 L. J. Ch. 289; 66 L. T. 206; 40 W. R. 277 75 Hall V. Hill [1841], 1 Dr. & War. 94; 1 Con. & L. 120; 4 Ir. Eq. R. 27; 58 R. R. 223 326 Hallett, E«, Hiallett v. Hallett, [1892] W. N. 148 100 n. HaUifax v. Wilson [1809], 16 Ves. 168; 10 R. R. 146 262, 278 Halston, Re, Ewen v. Halston, [1912] 1 Ch. 435; 106 L. T. 182; 56 Sol. J. 311; 81 L. J. Ch. 265 19 n. Ham's Trust, Re, Ex parte Biles [1851], 2 Sim. (N. S.) 106; 21 L. J. Ch. 217; 15 Jur. 1121; 89 R. R. 230 140 Hamilton, Re, Trench v. Hamilton, [1895] 2 Ch. 370; 64 L. J. Ch. 799; 12 R. 355; 72 L. T. 748; 43 W. R. 577 198 Hamilton v. Buckmaster [1867], L. R. 3 Eq. 323; 36 L. J. Ch. 51; 12 Jur. (N. S.) 986; 15 L. T. 177; 15 W. R. 149 74 Hamilton (Mayor of) v. Hodsdon [1847], 11 Jur. 193; 6 Moo. P. C. C. 76; 79 E. R. 1 72 TABLE OF CASES. xlvii PAOB Hairilton v. West [1846], 10 Ir. Eq. Eep. 75 229, 240 Hamlet, Re, Stephen v. Cunningham [1888], 39 Ch. D. 428; 58 L. J. Cli. 242; 59 L. T. 745; 37 W. E. 245; affg. 38 Ch. D. 183 261, 264 Hammersley, Re [1886], 2 T. L. R. 459 115 Hammond v. Maule [1844], 1 Coll. C. C. 231; 13 L. J. Ch. 386; 8 Jur. 568 272 Hammond v. Neame [1818], 1 Sw. 35; 1 Wils. Ch. 9; 18 R. R. 15.. 205 Hampton v. Holman [1877], 5 Ch. D. 183; 36 L. T. N. S. 287; 25 W. R. 459; 46 L. J. Ch. 248 226 Hanbury, Re, Hanbury v. Fisher, [1904] 1 Ch. 415; revd. (Comiskey v. Bowring-Hanbury), [1905] A. C. 84; 74 L. J. Ch. 263 200 Hancock v. Watson, [1902] A. C. 14; 71 L. J. Ch. 149; 85 L. T. 729; 50 W. E. 321 320 Hanoox v. Abbey [1805], 11 Ves. 179; 8 R. R. 124 339, 340 Hannam, Re, Haddelsey v. Hannam, [1897] 2 Ch. 39;, 66 L. J. Ch. 471; 76 L. T. 681; 45 W. R. 613 297, 300 Hannam v. Sims [1858], 2 De G. & J. 151; 27 L. J. Ch. 251; 6 W. E. 347; 4 Jur. (N. S.) 863; 119 E. E. 61 293 Hanson v. Graham [1801], 6 Ves. 239; 5 R. R. 277; Tudor's L. C. 4th ed. 440 268, 269, 270, 272 Harding v. Glyn [1739], 1 Atk. 469, n.; stated 5 Ves. 501; W. &T. L. C. 8th ed. Vol. II. p. 339 77, 82, 137, 138 Harland v. Trigg [1782], 1 Br. C. C. 142 201, 205 Harries' Trusts, Re [1859], Johns. 199; 123 R. R. 71 57 Harris v. Davis [1844], 1 Coll. C. C. 416; 9 Jur. 269; 66 R. R. 130 217, 218, 222 Harris v. Ingledew [1730], 3 P. Wms. 91 332 Harris v. Lloyd [1823], T. & E. 310; 24 E. R. 68 58, 94 Harris v. Watkins [1854], Kay, 438; 23 L. J. Ch. 540; 101 R. R. 698 333, 3.35 Harrison, Re, Harrison v. Higson, [1894] 1 Ch. 561 ; 63 L. J. Ch. 385; 70 L. T. 868 112 Harrison, Re, Turner v. Hellard [1885], 30 Ch. D. 390; 55 L. J. Ch. 799; 53 L. T. 799; 34 W. R. 420 13 Harrison v. Foreman [1799—1800], 5 Ves. 207; 5 R. R. 28 319 Harrison v. Grimwood [1849], 12 Bea. 192; 18 L. J. Ch. 485; 13 Jur. 864; 85 R. R. 66 275 Harrison v. Harrison [1829], 1 R. & My. 71; Taralyn, 273; 32 R. R. 145 85 Harrison v. Harrison, [1901] 2 Ch. 136; 70 L. J. Ch. 551; 85 L. T. 39; 49 W. R. 63 251 Harrison v. Harrison [1844], 7 M. & Gr. 938 234, 238 Hart's Trusts, Re [1858], 3 De G. & J. 195; 28 L. J. Ch. 7; 4 Jur. (N. S.) 1264; 7 W. R. 28 272, 274, 283 Hart V. Durand [1796], 3 Anst. 684 109 Hart V. Hernandez [1885], 52 L. T. 217 71 xlviii TABLE OF CASES. PAGE Hart V. Tribe (No. 4) [1863], 32 Bea. 279 120 Hart V. Tulk [1852], 2 D. M. & G. 300; 22 L. J. Ch. 649; 95 E. R. 116 7 Hartford v. Power [1868], 2 Ir. R. Eq. 204 155 Hartland v. MurreU [1859], 27 Bea. 204; 122 R. R. 373 333 Hartley v. Hurle [1801], 5 Ves. 540; 5 R. R. 113 156 Hartley v. Tribber [1853], 16 Bea. 510; 96 R. R. 245 110 Harton v. Harton [1798], 7 T. R. 652; 4 R. R. 537 176, 182, 183 Harvey v. Stracey [1852], 1 Dr. 73; 22 L. J. (N. S.) Ch. 23; 16 Jur. 771; 20 L. T. 0. S. 61; 94 R. R. 588 91, 96, 98 Haseldine, Re, Grange v. Sturdy [1886], 31 Ch. D. 511; 54 L. T. 322; 34 W. R. 327; 50 J. P. 390 112 Havergal v. Plarrison [1843], 7 Bea. 49; 13 L. J. (N". S.) Ch. 30; 7 Jur. 1100; 64 R. R. 13 92 Hawes i;. Hawes [1880], 14 Ch. D. 614; 43 L. T. 280 150 Hawkins v. Hamerton [1848], 16 Sim. 410; 13 Jur. 2; 80 R. R. 105 250 Hawkins v. Luscombe [1818], 2 Sw. 375 183 Hawthorn v. Shedden [1856], 3 Sm. & Gif. 293; 2 Jur. (N. S.) 749; 25 L. J. Ch. 833; 107 R. R. 90 31 Haydon v. Rose [1870], L. R. 10 Eq. 224; 39 L. J. Ch. 688; 23 L. T. 334; 18 W. R. 1146 262 Hayes, Re, Turnbull v. Hayes, [1901] 2 Ch. 529; 70 L. J. Ch. 770; 85 L. T. 85; 49 W. E. 659; 17 T. L. R. 740; aSg. [1900] 2Ch. 332 22,23,24 Haynes v. Haynes [1853], 3 D. M. & G. 590; 1 W. R. 204; 98 R. R. 240 362 Hayward, Re, Creery v. Lingwood [1882], 19 Ch. D. 470; 51 L. J. Ch. 513; 45 L. T. 790; 30 W. R. 315 309 Hayward v. James [1860], 28 Bea. 523; 29 L. J. Ch. 882; 6 Jur. (N. S.) 689; 8 W. R. 676; 2 L. T. N. S. 452; 126 R. R. 247.. 262 Heardson v. Williamson [1836], 1 Keen, 33; 5 L. J. (N. S.) Ch. 165; 44 R. 11. 7 185 Hearle -u. Hicks [1832], 1 CI. & Fin. 20. See Doe d. Hearle v. Hicks 9 Hearn v. Baker [1856], 2 K. & J. 383; 110 R. R. 281 312 Heasman v. Pcarse [1871], L. R. 7 Ch. 275; 41 L. J. Ch. 705; 26 L. T. N. S. 299; 20 W. R. 271 299 Heath . 406; 51 L. J. Ch. 455 249 Hudsons, Ee [1843], Dru. t. Sugd. 6; 67 E. E. 169 283 HufiEam v. Hubbard [1853], 16 Bea. 579; 96 E. E. 269 312 Hughes V. Sayer [1718], 1 P. Wms. 534 251, 259 Hughes u. Turner [1834], 3 My. & K. 666; 4 L. J. (N. S.) Ch. 141; 41 E. E. 171 35 Huish, Ee, Bradshaw v. Huish [1890], 43 Ch. D. 260; 59 L. J. Ch. 135; 62 L. T. 52; 38 W. E. 199 351 Hulmo V. Hulmo [1839], 9 Sim. 644; 47 E. E. 326 320 Humberston v. Humberston [1716], 1 P. Wms. 332; 2 Vern. 737; Pre. Ch. 455; (Humerstoa v. Humerston), 1 Gilb. 128.. .223, 226 Humberstone «. Stanton [1813], 1 V. & B. 385; 12 E. E. 243... 291, 293 Humble v. Shore [1847], 7 Hare, 247; 1 H. & M. 550, ii.; 33 L. J. Ch. 188, n.; 82 E. E. 96 55,56 Hume, Ee, Public Trustee x.. Mabey, [1912] 1 Ch. 693; 106 L. T. 335; 56 Sol. J. 414 276 Humfrey v. Humfrey [1862], 2 Dr. & Sm. 49 302, 303 Humphrey u. Humphrey [1851], 1 Sim. (N. S.) 536; 20 L. J. Ch. 425; 89 E. E. 182 163 Humphreys v. Howes [1830], 1 E. & M. 639; Taml. 497; 8 L. J. (0. S.) Ch. 165 293 Humphreys v. Humphreys [1867], L. E. 4 Eq. 475; 14 L. T. 557; 15 W. E. 391 221 Humphries, Ee, Smith v. Millidge [1883], 24 Ch. D. 691; 49 L. T. 594 112 Hunloke v. Gell [1830], 1 E. & My. 515; 32 E. E. 264 35 Hunter v. Cheshire [1873], L. E. 8 Ch. 751; 29 L. T. 383; 21 W. E. 778 300 Hunter's Trusts, Ee [1866], L. E. 1 Eq. 295 280 Hurlstone v. Ashton [1865], 11 Jur. (N. S.) 725 32 Hurry v. Morgan [1868], L. E. 3 Eq. 152; 36 L. J. Ch. 105; 15 W. E. 87 250 Hurst V. Beach [1821], 5 Mad. 351; 21 E. E. 304... 14, 17, 355, 357, 358 Hutchinson v. Barron [1861], 6 H. & N. 583; 9 W. E. 538; 30 L. J. Ex. 280; 123 E. E. 703 24 Hutchinson and Tenant, Ee [1878], 8 Ch. D. 540; 26 W. E. 904; 39 L. T. 86 120, 200, 202 n. Hutchinson's Trusts, Ee [1882], 21 Ch. D. 811; 61 L. J. Ch. 924; 47 L. T. 573 151 Hutton V. Simpson [1716], 2 Vern. 722; Pre. Ch. 439; (Sympson V. Hornby), Gilb. Eq. E. 115; Eq. Ca. Ab. 216, pi. 6, 407, pi. 6 220 d2 lii TABLE OF CASES. I. PAQE Ibbetson, R«, Ibbetson v. Ibbetson [1903], 88 L. T. 461 222, 297 Incorporated Society v. Eiohards [1841], 1 D. & War. 258; 1 Con. & L. 58; 4 Ir. Eq. K. 177; Sav. & So. 559 43 Inderwick v. Tatchell, [1903] A. C. 120; 72 L. J. Ch. 393; 88 L. T. 399 250 Inglefield o. Coghlan [1845], 2 CoU. C. C. 247; 70 E. R. 197... 154 Ingram v. Soutten [1874], L. B. 7 H. L. 408; 44 L. J. Ch. 55; 31 L. T. 215; 23 W. E. 363 309 Ingram i;. Suckling [1859], 7 W. E. 386; 113 E. E. 1009 269 Innes v. Mitchell [1803], 9 Ves. 212, below 6 Vea. 464; 5 E. E. 360 166 Innes v. Sayer (Sayer v. Sayer) [1852], 21 L. J. Ch. 190; 16 Jur. 21; 3 Mao. & G. 606; a£Bg. 7 Hare, 377; 13 Jur. 402; 18 L. J. (N. S.) Ch. 274; 87 E. E. 217 34 Ion V. Ashton [1860], 28 Bea. 379; 6 Jur. (N. S.) 879; 8 W. E. 573; 2 L. T. N. S. 686; 126 E. E. 180 340 IredeU v. Iredell [1857], 25 Bea. 485; 119 E. E. 501 100, 102 Isaac, Ee, Harrison v. Isaac, [1905] 1 Ch. 427; 74 L. J. Ch. 277; 92 L. T. 227 53 Ive V. King [1852], 16 Bea. 46; 16 Jvir. 489; 21 L. J. Ch. 560; 96 R. E. 23 293, 294, 296, 297, 301 J. Jackson v. Calvert [1860], 1 J. & H. 235; 128 R. E. 341 235 Jackson v. Dover [1864], 2 H. & M. 209; 4 N. E. 136; 10 Jur. (N. S.) 631; 10 L. T. 489; 12 W. E. 855 264 Jacobs V. Jacobs '[1853], 16 Bea. 557; 22 L. J. Ch. 668; 17 Jur. 293; 1 W. E. 238; 21 L. T. 0. S. 97; 96 E. E. 260 123, 125 James v. Dean [1805—8], 11 Ves. 383; afid. 15 Ves. 236; 8 E. E 178 28 James v. Irving [1847], 10 Bea. 276 54 James v. Smith [1844], 14 Sim. 214; 13 L. J. Ch. 376; 8 Jur. 594, 65 E. E. 562 114 James -i^. Wynford (Lord) [1852], 1 Sm. & GifB. 40; 22 L. J. Ch. 450; 1 W. R. 61; 17 Jur. 17; 20 L. T. 0. S. 273; 96 R. R. 308 286 Jarvis v. Pond [1839], 9 Sim. 549; 8 L. J. (N. S.) Ch. 167; 47 R. R. 309 299 Jeaffreson's Trusts, Ee [1866], L. E. 2 Eq. 276; 35 L. J. Ch. 622; 12 Jur. (N. S.) 660; 14 W. R. 759 ' 57 Jefferies v. Michell [1855], 20 Bea. 15; 109 R. R. 331 351 Jeffreys v. Jeffreys [1742], 3 Atk. 120 353 TABLE OF CASES. liii PAGE Jenings v. Baily [1853], 17 Bea. 118; 22 L. J. Ch. 977; 17 Jur. 433; 99 R. E. 64 163 Jervoise v. Northumberland (Duke of) [1820], 1 J. & W. 559; 21 R. R. 229 231 Jesson XI. Wright [1820], 2 Bli. 1; revg. (Doe d. Wright v. Jesson), 5 M. & S. 95; 21 R. R. 1 5,226,227,228,230,236 Jevons, Re, Jevons v. PubEo Trustee [1911], 56 Sol. J. 860 199 Jewis V. Lawrence [1869], L. R. 8 Bq. 345 364 Jobsou, Re, Jobson v. Richardson [1890], 44 Ch. D. 154; 59 L. J. Ch. 245; 62 L. T. 148 279 Johnson v. Crook [1879], 12 Ch. D. 639; 48 L. J. Ch. 777; 41 L. T. 400; 28 W. R. 12 262 Johnson v. Simcock [1860], 7 H. & N. 344; 31 L. J. Ex. 38; 4 L. T. N. S. 836; 9 W. R. 895; 8 Jur. (N. S.) 284; 126 R. R. 467; affg. 6 H. & N. 6 253 Johnston v. Antrobus [1856], 21 Bea. 556; 111 R. R. 204... 308, 309, 310 Johnston u. Rowlands [1848], 2 De G. & Sm. 356; 17 L. J. Ch. 438; 12 Jur. 769; 79 R. R. 245 202 Johnstone v. Harrowby (Lord) [1859], Johns. 425; on appeal, 1 D. F. & J. 183; 29 L. J. Ch. 145; 6 Jur. (N. S.) 153; 1 L. T. N. S. 390; 8 W. R. 105; 125 R. R. 400 356, 358, 359 Jones, Re, Lewis v. Lewis, [1910] 1 Ch. 167; 79 L. J. Ch. 34; 101 L. T. 549 245, u., 246 Jones V. Bruce [1840], 11 Sim. 221; 4 Jur. 1055; 54 R. R. 347 ... 340 Jones V. Jones [1843], 13 Sim. 561; 13 L. J. Ch. 16; 7 Jur. 986; 60 R. R. 402 264 Jones V. Mcllwain [1825], 1 Russ. 220; 25 R. R. 32 274 Jones V. Sldnuer [1835], 5 L. J. (N. S.) Ch. 87; 42 R. R. 274... 43 Jones V. Tucker [1817], 2 Mer. 533; 33 R. R. 112 36 Jordan v. Adams [1861], 9 C. B. N. S. 483; 30 L. J. C. P. 161; 7 Jur. (N. S.) 973; 4 L. T. 775; 9 W. R. 593; 127 R. R. 730; affg. [1859], 6 C. B. (N. S.) 748; 29 L. J. C. P. 180; 6 Jur. (N. S.) 536; 8 W. R. 580; 120 R. R. 350 ...226, 227, 230 Joseph, Re, Pain v. Joseph, [1908] 2 Ch. 507; 77 L. J. Ch. 832; 90 L. T. 539; 24 T. L. R. 770; revg., [1908] 1 Ch. 599 361 Josselyn v. Josselyn [1837], 9 Sim. 63 271 Judd V. Judd [1830], 3 Sim. 525; (Hunter v. Judd), 4 Sim. 455; (Judd v. Hobbs), 8 L. J. Ch. 119; 30 R. R. 203 271 Jupp, Re, Jupp V. BuckweU [1888], 39 Ch. D. 148; 57 L. J. Ch. 744; 59 L. T. 129; 36 W. R. 712 153 K. Kavanagh v. Morland [1854], Kay, 16; 23 L. J. Ch. 41; 18 Jur. 185; 2 Eq. R. 771; 2 W. R. 8; 101 R. R. 498... 234, 236, 237, 238 Keay v. Boulton [1884], 25 Ch. D. 212; 54 L. J. Ch. 48; 49 L. T. 631; 32 W. R. 591 124 liv TABLE OP CASES. PAGE KeeUn^ v. Brown [1800], 5 Ves. 359; 5 E. K. 70 331 Kekewich v. Barker [1903], 88 L. T. 130 1*9 KeU V. Charmer [1856], 23 Bea. 195; 4 W. R. 787; 113 B. E. 93... 20 KendaU v. KendaU [1828], 4 Euss. 360; 6 L. J. (0. S.) Ill; 28 E. E. 125 76 Kenebel •. Mildmay [1797], 3 Ves. 306; 4 E. E. 1 19 Serlo V. St. Eloy [1726], 2 P. Wms. 386 330 Seymour's Trusts, Ee [1859], Johns. 472; 28 L. J. Ch. 765; 5 Jur. (N. S.) 1049; 7 W. E. 609; 123 E. E. 194 142 Seyton, Ee, Seyton u. Satterthwaite [1887], 34 Ch. D. 511; 56 L. J. Ch. 775; 56 L. T. 479; 35 W. E. 373 245 Shaftesbury (Earl of) v. Marlborough (Duke of) [1835], 7 Sim. 237; 3 L. J. (N. S.) Ch. 30; 2 M. & K. Ill; 40 E. E. 129... 358, 359 Shallcross v. Einden [1798], 3 Ves. 738; 3 E. E. 75 331, 332 Shaplana v. Smith [1780], 1 Br. C. C. 75 175 Sharp, Ee, Maddison v. Gill, [1908] 2 Ch. 190; 77 L. J. Ch. 724; 99 L. T. 129; a£Eg., [1908] 1 Ch. 372 85 Sharpe v. Sharpe [1848], 17 L. J. (N. S.) Ch. 384; 12 Jur. 598; 80 E. E. 185 48 Shaw, Ex parte [1836], 8 Sim. 159; 5 L. J. (N. S.) Ch. 384 48 Shaw v. Cunliffe [1792], 4 Br. C. C. 144 58 Shelford v. Acland [1855], 23 Bea. 10; 3 Jur. (N. S.) 8; 26 L. J. Ch. 144; 5 W. E. 170; 113 E. E. 6 38 SheUey'a Case {1581], 1 Eep. 936; 1 And. 69; Mo. 136; Dy. 373, pi. 15; Tudor's L. C. 4th ed. 332 177, 182, 183, 228, 238 SheUey v. Bryer [1821], Jao. 207; 32 E. E. 32 114 Shelmer's (Mary) Will [1725], Gilb. Eq. Eep. 200 67 Shepherd v. Ingram [1764], Amb. 448 94 Sheppard's Trusts, Ee [1855], 1 K. & J. 269; 103 E. E. 75 293 Sherratt v. Mountford [1873], L. E. 8 Ch. 928; 42 L. J. Ch. 688; 29 L. T. 284; 21 W. E. 818 H5 Shev.ell V. Dwarris [1858], Johns. 172; 123 E. E. 54 156 Sliipperdson v. Tower [1842], 1 Y. & C. C. C. 441; 6 Jur. 658; 57 K. E. 421 350 Shore v. Wilson [1842], 9 CI. & Fin. 355; (Att.-Geu. v. WUson), 16 Sim. 210; (Att.-Gen. v. Shore), 11 Sim. 592; 7 Sim. 309, n.;' 57 E. E. 2 ' 1^ 3 Shum V. Hobbs [1855], 3 Drew. 93; 24 L. J. Ch. 377; 3 W. E. 221; 106 E. E. 293 '. 271 Sibley v. Perry [1802], 7 Ves. 522; 6 E. E. 183 117, 118, 119, 349, 352, 354 SUcox V. BeU [1823], 1 S. & St. 301; 1 L. J. (0. S.) Ch. 137; 24 E. E. 173 ' ug Simmonds v. Cock [1861], 29 Bea. 455; 7 Jur. (N. S.) 718; 9 W. E. 517; 131 E. E. 666 .'.... 290 TABLE OP CASES. Ixxi PAGE Simmons v. Rose [1856], 6 D. M. & G. 411; 25 L. J. Ch. 615; 2 Jur. (N. S.) 73; 4 W. R. 225; 26 L. T. O. S. 265; 106 R. R- 125 341, 344 Simmona v. Rudall [1851], 1 Sim. (N. S.) 115; 15 Jur. 162; 89 R. R. 44 56 Simmona v. VaUance [1793], 4 Br. C. C. 345 352 Simpson v. Ashworth [1843], 6 Bea. 412; 7 Jur. 410; 63 R. R. 130 219 Simpson v. Peach [1873], L. R. 16 Eq. 208; 42 L. J. Ch. 816; 28 L. T. 731; 21 W. R. 728 278 Singleton v. Gilbert [1784], 1 Cox, 68; 1 Br. C. C. 542, n 99 Sinnott v. Walsh [1880], 5 L. R. Ir. 27; 3 L. R. Ir. 12 79 Skottowe v. Young [1871], L. R. 11 Eq. 474; 40 L. J. Ch. 366; 24 L. T. 220; 19 W. R. 583 11 Skrymsher v. Northcote [1818], 1 Sw. 566; 1 Wils. Ch. 248; 18 R. R. 142 65, 56 Sladen v. Sladen [1862], 2 J. & H. 369; 8 Jur. (N. S.) 1075; 31 L. J. Ch. 775; 7 L, T. 63; 10 W. R. 579 208 Slater, Re, Slater w. Slater, [1907] 1 Ch. 665; 76 L. J. Ch. 472; 97 L. T. 74; 51 Sol. J. 426; affg., [1906] 2 Ch. 480 27, 354 Slater v. Dangerfield [1845—6], 15 M. & W. 273; 16 L. J. Ex. 139; 71 R. R. 659 236 Sleeoh v. Thorington [1754], 2 Ves. Sen. 560 84, 352 Small V. Wing [1730], 3 B. P. C. Toml. 66 161 Smilter, Re, Bedford v. Hughes, [1903] 1 Ch. 198; 72 L. J. Ch. loa 112 Smith, Re, Lord v. Hayward [1887], 35 Ch. D. 558; 56 L. J. Ch. 771; 56 L. T. 878; 35 W. R. 663 113 Smith, Re [1862], 2 J. & H. 594 96 Smith, Re, Henderson-Roe v. Hitchings [1889], 42 Ch. D. 302; 58 L. J. Ch. 860; 61 L. T. 363; 37 W. R. 705 69 Smith's Trusts, Re [1878], 7 Ch. D. 665; 47 L. J. Ch. 265; 26 W. R. 418 303 Smith V. Butcher [1879], 10 Ch. D. 113; 48 L. J. Ch. 136; 27 W. R. 281 123 Smith V. Camelford (Lord) [1795], 2 Ves. Jun. 698; 2 R. E. 36.. 225 Smith V. CampbeU [1815], 19 Ves. 400; G. Coop. 275; 13 R. R. 224 140 Smith V. Horsfall [1857], 25 Bea. 628; 119 R. R. 575 118 Smith V. Lidiard [1857], 3 K. & J. 252; 112 R. R. 139 115 Smith V. Osborne [1857], 6 H. L. C. 375; 3 Jur. (N. S.) 1181; 6 W. R. 21; 108 R. R. 161 250 Smith V. Palmer [1848—9], 7 Hare, 225; 13 Jur. 94; 82 R. R. 80.. 142 Smith V. Smith [1861], 31 L. J. C. P. 25 173 Smith V. Smith [1861], 11 C. B. N. S. 121; 8 Jur. (N. S.) 459; 5 L. T. 447; 10 W. R. 18 187 Smith V. Smith [1837], 8 Sim. 353; 6 L. J. (N. S.) Ch. 175; 42 R. R. 203 297, 298 Smith V. Streatfield [1816], 1 Mer. 358; 15 R. R. 132 151 Ixxii TABLE OF CASES. PAGE Smither v. Willook [1804], 9 Vea. 233 319 Smyth V. Smyth [1878], 8 Ch. D. 561; 38 L. T. 633; 26 W. B. 736 .V , 75 Smythies, Ee, Weyman v. Smythies, [1903] 1 Ch. 259; 72 L. J. Ch. 216; 87 L. T. 742; 51 W. R. 284 357 Snow V. Teed [1870], L. R. 9 Eq. 622; 39 L. J. Ch. 420; 23 L. T. 303; 18 W. E. 623 121 n. SonUe V. Gerard [1596], Cro. Eliz. 525 251 South Molton (Mayor of) v. Att.-Gen. [1856], 5 H. L. C. 1; 23 L. J. Ch. 567; 18 Jur. 435; 101 R. R. 1 89 Southern v. WoUaston [1852], 16 Bea. 166; 21 L. J. Ch. 456; 96 R. R. 78 273 Spence . 617; 54 L. J. Ch. 1172; 53 L. T. 336; 33 W. E. 930 35 Waite V. Ooombes [1852], 5 De G. & S. 676; 21 L. J. Ch. 814; 17 Jut 155; 90 E. E. 194 66, 67, 71 Walbran, Be, MUner v. Walbran, [1906] 1 Ch. 64; 75 L. J. Ch. 105; 93 L. T. 745; 54 W. E. 167 150 Walford, Be, Kenyon v. Walford [1911], 55 Sol. J. 384 83 Walker, Ee, Mackintosh- Walker v. Walker, [1908] 2 Ch. 705; 77 L. J. Ch. 755; 99 L. T. 469 233 Walker, Re, Walker v. Lutyena, [1897] 2 Ch. 238; 66 L. J. Ch. 238; 77 L. T. 94; 45 W. E. 647 112 Walker v. Camden (Marquis of) [1848], 16 Sim. 329; 17 L. J. (N. S.) Ch. 488; 12 Jur. 932; 80 R. R. 84 128, 144 Walker v. Mackie [1827], 4 Russ. 76 34, 35 Walker v. Main [1819], 1 J. & W. 1; 20 R. R. 202. ..262, 291, 292, 297 Walker v. Mower [1852], 16 Bea. 365; 96 R. E. 176 269, 287 Walker v. Shore [1808], 15 Ves. 122; 10 R. R. 41 98 Walker v. Simpson [1854], 1 K. & J. 713; 1 Jur. (N. S.) 675; 103 R. R. 330 264 Wall V. Bright [1820], 1 J. & W. 494; 21 R. R. 219 46, 47 WaUaoe v. Pomfret [1805], 11 Vea. 542; 8 E. E. 241 14,350 Walsh V. WaUinger [1830], 2 E. &; My. 78; Taml. 425; 9 L,. J. (0. S.) Ch. 7; 34 E. E. 23 83 Walter v. Makin [1833], 6 Sim. 148; 2 L. J. Ch. 173 143 Wand, Ee, Eacritt ». Wand, [1907] 1 Ch. 391; 76 L. J. Ch. 253; 96 L. T. 425 56 Warburton v. Loveland [1828], 1 Huda. & Br. 623 4 Ward V. Burbury [1854], 18 Bea. 190; 104 E. E. 425 191 Ward V. Grey [1859], 26 Bea. 485; 29 L. J. Oh. 74; 7 W. E. 569; 122 E. E. 202 120, 245, 349 Ware, Ee, Cumberlege v. Oumberlege Ware [1890], 45 Ch. D. 269; 59 L. J. Oh. 717; 63 L. T. 52; 38 W. E. 767 142, 143 Ware v. Rowland [1848], 2 Ph. 635; 17 L. J. Oh. 147; 12 Jur. 165; afeg. 15 Sim. 587; 78 R. R. 228 132 Ware v. Wataon [1856], 7 D. M. & G. 248; 25 L. J. Ch. 199; 2 Jur. (N. S.) 129; 4 W. R. 223; 109 E. E. 99 8, n., 309, 320 Waring v. Lee [1845], 8 Bea. 247; 9 Jur. 170; 68 E. R. 85 114 Warman v. Seaman [1677], Finch, 282 234 Warren v. Daviea [1833], 2 My. & K. 49; 2 L. J. (N. S.) Ch. 203; 39 R. R. 133 334 Ixxviii TABLE OP CASES. PAGE Warrington v. Warrington [1842], 2 Hare, 54; 6 Jur. 872; 62 R. E. 21 153 Warwick v. Hawkins [1852], 5 De G. & S. 481; 21 L. J. Ch. 796; 16 Jur. 902; 90 R. R. 124 359 Wasse V. Heslington [1834], 3 My. & K. 495; 3 L. J. (N. S.) Ch. 221; 41 R. R. 110 334 Watkins v. Cheek [1825], 2 S. & St. 199; 25 R. R. 181 282 Watkins v. Frederick [1864—5], 11 H. L. C. 358 186 n. Watson's Trusts, Re [1870], L. R. 10 Eq. 36; 39 L. J. Ch. 770; 18 W. E. 642 261 Watson ('. Brickwood [1804], 9 Ves. 447 336 Watson c: Hayes [1839], 5 My. & Cr. 125; 9 L. J. (N. S.) Ch. 49; 4 Jur. 186; 48 R. R. 249; revg. 9 Sim. 500 274 Watson V. Pearson [1848], 2 Ex. 581; 18 L. J. Ex. 46; 76 R. R. 689 178, 179, 190 Watson I'. Young [1885], 28 Ch. D. 436; 54 L. J. Ch. 502; 33 W. R. 637 96 Waugh, Re, Waugh v. Cripps, [1903] 1 Ch. 744; 72 L. J. Ch. 586; 88 L. T. 54; 51 W. R. 461; 19 T. L. R. 238 218 Weale v. Ollive [1863], 32 Bea. 421 163 Webb V. Byng [1855], 1 K. & J. 580; 1 Jur. (N. S.) 696; 103 R. R. 249 26 Webb V. Byng [1856], 2 K. & J. 669; 8 D. M. & G. 633; 2 Jur. (N. S.) 1248; 5 W. R. 64; 26 L. J. Ch. 107; affd. (Byng v. Byng) [1862], 10 H. L. C. 171; 31 L. J. Ch. 470; 8 Jur. (N. S.) 1135; 7 L. T. 1; 10 W. R. 633 243, 244 Webb V. Hearing [1615], Cro. Jac. 415; 3 Bulst. 194; Roll. Rep. 399, pi. 25; 8 Vin. Ab. 209, pi. 17 217 Webb V. Honnor [1820], 1 J. & W. 352; 21 R. R. 180 33 Webb V. Jones [1786], 2 Br. C. C. 60; 1 Cox, 245; 1 R. R. 29... 329 Webb V. Wools [1852], 2 Sim. (N. S.) 267; 21 L. J. Ch. 625; 89 R. R. 29 202 Webber v. Corbett [1873], L. R. 16 Eq. 515; 43 L. J. Ch. 164; 29 L. T. 365 18 n. Webster's Estate, Re, Widgen v. Mello [1883], 23 Ch. D. 737; 52 L. J. Ch. 767; 49 L. T. 585 300 Webster v. Hale [1803], 8 Ves. 410; 7 R. R. 103 352 Weedon v. Fell [1740], 2 Atk. 123 316 Weekes' Settlement, Re, [1897] 1 Ch. 289; 66 L. J. Ch. 179; 76 L. T. 112; 45 W. R. 265 81 Wellington v. Wellington [1767], 4 Burr. 2165; 1 W. Bl. 645 257 WeUs' Trusts, Re, Hardisty v. Wells [1889], 42 Ch. D. 646; 58 L. J. Ch. 835; 61 L. T. 588; 38 W. R. 229 24 Wells V. Wells [1874], L. R. 18 Eq. 504; 43 L. J. Ch. 681; 31 L. T. 16; 22 W. R. 893 19 n., 115 Wenmoth's Estate, Re, Wenmoth v. Wenmoth [1888], 37 Ch. D. 266; 57 L. J. Ch. 649; 57 L. T. 709; 36 W. R. 409 91, 101 West, Ex parte [1784], 1 Br. C. C. 575; 1 P. Wms. 275 321 West V. Orr [1877], 8 Ch. D. 60; 47 L. J. Ch. 294; 38 L. T. 5; 26 W. R. 409; a%. 35 L. T. 51 299 TABLE OP CASES. Ixxix PAGE Weston's Settlement, Ee, Neeves v. Weston, [1906] 2 Ch. 620; 76 L. J. Ch. 54; 95 L. T. 581 33 Wharton v. Barker [1858], 4 K. & J. 483; 4 Jur. (N. S.) 553; 6 W. B. 534 126, 132, 134, 135 Whatford v. Moore [1828], 3 My. & Cr. 270; 6 L. J. Ch. 378; affg. 7 Sim. 574; 5 L. J. Ch. 105 264 Wheeler, Ee, Hankinson v. Hayter, [1904] 2 Ch. 66; 73 L. J. Ch. 576; 91 L. T. 227; 52 W. R. 586 69 Wheeler v. Addams [1854], 17 Bea. 417; 99 R. E. 215 134 Wheeler v. Howell [1857], 3 K. & J. 198; 112 R. E. 105 345, 346 Whitbread v. St. John (Lord) [1804], 10 Ves. 152; 7 E. E. 366... 93, 100, 102 White's Trusts, Ee [1860], Johns. 656; 123 E. R. 278 79, 82 White V. Baker [1860], 2D. F. & J. 55; 8 W. R. 533; 29 L. J. Ch. 577; 6 Jur. (N. S.) 591; 2 L. T. N. S. 583; 129 E. E. 9... 311, 314, 315, 319 White V. CoUins [1718], 1 Com. Eep. 289 213 White V. Coram [1857], 3 K. & J. 652 171 White V. Erans [1798], 4 Ves. 21 366, 367 White V. HiU [1867], L. E. 4 Eq. 265; 16 L. T. N. S. 821 261 White V. Parker [1835], 1 Scott, 542; 1 Bing. N. C. 573; 4 L. J. (N. S.) C. P. 178; 41 E. E. 636 175 Whitehorne v. Harris [1754], 2 Ves. Sen. 527 140 Whitman v. Aitken [1866], L. R. 2 Eq. 414; 12 Jur. (N. S.) 350; 14 L. T. 248 262 Whitmore, Re, Walters v. Harrison, [1902] 2 Ch. 66; 71 L. J. Ch. 673; 87 L. T. 210 300 WhitteU V. Dudin [1820], 2 J. & W. 279; 22 R. R. 124 320 Whittemore v. Whittemore [1869], 38 L. J. Ch. 17; 19 L. T. 236 189 Whitter «. Bremridge [1866], L. R. 2 Eq. 736; 35 L. J. Ch. 807; 14 W. R. 912 288 Whittome v. Lamb [1844], 12 M. & W. 813 157 Whyte V. Whyte [1874], L. R. 17 Eq. 50; 43 L. J. Ch. 104; 22 W. R. 180 357 Wild's Case [1599], 6 Rep. 16b; Tudor's L. C. 4th ed. 361; (Richardson v. Yardley), Moore, 397, pi. 619; Anon. Gouldsb. 139 243, 244 Wildes V. Davies [1853], 1 Sm. & G. 475; 22 L. J. Ch. 495; 1 W. R. 253; 21 L. T. 0. S. 206; 96 E. E. 445 364 Wildman's Trusts, Ee [1860], 1 J. & H. 299; 30 L. J. Ch. 174; 7 Jur. (N. S.) 121; 3 L. T. N. S. 908; 128 E. E. 375... 302, 303 Wnkins, Re, Spencer v. Duckworth [1881], 18 Ch. D. 634; 50 L. J. Ch. 774; 45 L. T. 244; 29 W. E. 911 262 Wilkinson, Ee [1869], L. E. 4 Ch. 587; 17 W. R. 839 32 Wilkinson -u. Adam [1812—3], 1 V. & B. 422; affd., 12 Pri. 470; 12 R. R. 255 7, 106, 107, 110 Wilks V. Bannister [1885], 30 Ch. D. 512; 54 L. J. Ch. 1139; 53 L. T. 247; 33 W. E. 922 116, 262 IXXX TABLE OF CASES. PAGE Willatts, Ee, WUlatts v. Astley, [1905] 1 Ch. 378; 92 L. T. 195; 74 L. J. Ch. 269; 21 T. L. E. 194; on appeal, [1905] 2 Ch. 135; 74 L. J. Ch. 564; 93 L. T. 256; 21 T. L. R. 571 220 Williams, Esther, Ee, Eoulkes v. WnUams [1889], 42 Ch. D. 93; 58 L. J. Ch. 451; 61 L. T. 58 23, 37 Williams, Ee, Williams v. Williams, [1897] 2 Ch. 12; 66 L. J. Ch. 485; 76 L. T. 600; 45 W. R. 519 198, 200, 205 n. Williams, Ee, WilUams v. Williams, [1907] 1 Ch. 180; 76 L. J. Ch. 41; 95 L. T. 759; 51 Sol. J. 68 273,276 Williams v. Clark [1851], 4 De G. & S. 472; 87 E. E. 449 270 Williams v. Evans [1853], 1 EU. & B. 727; 22 L. J. Q. B. 241; 17 Jur. 1093; 93 E. E. 362 9 Williams v. Haythorne [1871], L. E. 6 Ch. 782 278 Williams v. James [1872], 20 W. E. 1010 250 Williams v. Lewis [1859], 6 H. L. C. 1013; 28 L. J. Ch. 605; 3 L. T. N. S. 23; 5 Jur. (N. S.) 323; 7 W. E. 349; 108 E. E. 410; below (Lewis v. Hopkins), 3 Dr. 668; 5 W. E. 17, 243... 232 Williams v. Williams [1851], 1 Sim. N. S. 358; 20 L. J. Ch. 280; 15 Jur. 715; 89 E. E. 121 205 Williams v. WUUams [1878], 8 Ch. D. 789; 47 L. J. Ch. 857; 39 L. T. 180; 27 W. E. 100 66 Willing V. Baine [1731], 3 P. Wms. 113 291, 292, 301, 306 WUIist). HiBoox[1838], 4My. &Ctr. 197;i4 Jut. 738; 48 E. R. 69... 214 WiUis V. Plaskett [1841], 4 Bea. 208; 5 Jur. 572; 55 E. E. 54.. .70, 71 WiUmott's Trusts, Ee [1869], L. E. 7 Eq. 532; 38 L. J. Ch. 275... 262 WiUs V. Palmer [1770], 5 Burr. 2615; 2 W. Bl. 687 209 WiUs V. Sayers [1819], 4 Mad. 409 155 Wills V. Wills [1841], 1 Dr. & War. 439; 4 Ir. Eq. E. 531 62 WiUs V. WUIs [1875], L. E. 20 Eq. 342; 44 L. J. Ch. 582; 23 W. E. 784 151 Wilmot V. Wilmot [1802], 8 Ves. 10; 6 E. E. 196 250 Wilson, Re, Wilson v. Batohelor, [1907] 2 Ch. 572; 77 L. J. Ch. 13; 97 L. T. 656; 52 Sol. J. 11 132, 135 Wilson V- Duguid [1883], 24 Ch. D. 244; 53 L. J. Ch. 52: 49 L. T. 124; 31 W. E. 945 83, 138 Wilson V. Eden [1850], 5 Exch. 752; 20 L. J. Ex. 73; 82 E. E. 855; [1852], 21 L. J. Q. B. 385; 18 Q. B. 474; 16 Jur. 1017; 19 L. T. 0. S. 137; 88 E. E. 667; below [1848], 11 Bea. 237; 17 L. J. Ch. 459; 12 Jur. 488; see also 14 Bea. 317; 16 Bea. 153 40 Wilson V. HaUiley [1830], 1 E. & My. 590; 8 L. J. (0. S.) Ch. 171; 32 E. E. 286 1S9, 160 Wikou V. Maddison [1843], 2 Y. & C. C. C. 372; 12 L. J (N. S.) Ch. 420; 7 Jur. 572; 60 E. E. 198 165 Wilson V. O'Leary [1872], L. E. 7 Ch. 448; 41 L. J. Ch. 342; 26 L. T. 463; 20 W. E. 601; affg. L. E. 12 Eq. 525; 40 L. J. Ch. 709; 25 L. T. 327; 20 W. E. 28 357 Winch V. Brutton [1844], 14 Sim. 379; 8 Jur. 1086; 65 E. E. 613... 202 Wingfield v. Wingfield [1878], 9 Ch. D. 658; 47 L. J. Ch. 768- 39 L. T. 227; 26 W. E. 711 124, 297 TABLE OP GASES. Ixxxi Winn, Ee, Brook v. WMtton, [1910J 1 Ch. 278; 79 L. J. Ch. 165; 101 L. T. 737 133 Wintle, Ee, Tucker v. Wintle, [1896] 2 Ch. 711; 65 L. J. Ch. 863; 75 L. T. 207; 45 W. E. 91 276 Withers v. Kennedy [1833], 2 My. & K. 607; 3 L. J. (N. S.) Ch. 29; 39 E. E. 310 332 Withy V. Mangles [1843], 10 CI. & Kn. 215; 8 Jur. 69; affg. 10 L. J. Ch. 391; 4 Bea. 358; 59 E. E. 95 129, 130 Wolverton Mortgaged Estates, Ee [1878], 7 Ch. D. 197; 47 L. J. Ch. 127; 26 W. E. 138; 37 L. T. 573 14 Wood, Ee, Wood v. Wood, [1902] 2 Ch. 542; 71 L. J. Ch. 723; 87 L. T. 316; 50 W. E. 695; 18 T. L. E. 710; revg., [1901] 2 Ch. 578 113 Woodcock V. Dorset (Duke of) [1789—92], 3 Br. C. C. 569; 3 V. & B. 82, n 264 Woodgate v. Unwin [1831], 4 Sim. 129; 9 L. J. (0. S.) Ch. 166; 33 E. E. 101 147 Woodhouse v. Herrick [1855], 1 K. & J. 352; 3 Eq. E. 817; 24 L. J. Ch. 649; 3 W. E. 303; 103 E. E. 119 233, 234 Woodhouse v. Meredith [1816], 1 Mer. 450; 15 E. E. 145 50 Woodhouse v. Spurgeon [1883], 52 L. J. Ch. 825; 49 L. T. 97; 32 W. E. 225 220 Woodhouselee (Lord) v. Dalrymple [1817], 2 Mer. 419; 16 E. E. 193> 108 Woodin, Ee, Woodin v. Glass, [1895] 2 Ch. 309; 64 L. J. Ch. 501; 12 E. 302; 72 L. T. 740; 43 W. E. 615 58 Woods V. Woods [1836], 1 My. & Cr. 401; 43 E. E. 214 204 Woollani V. Kenworthy [1803], 9 Ves. 137 72 Woolley, Ee, Wormald v. WooUey, [1903] 2 Ch. 206; 72 L. J. Ch. 602; 89 L. T. 16 303, 304 Woolrich, Ee, Harris v. Harris [1879], U Ch. D. 663; 48 L. J. Ch. 321 298 Worlidge V. Churchill [1792], 3 Br. C. C. 465 322 Worts ^. Cubltt [1854], 19 Bea. 421; 2 W. E. 633; 105 E. E. 197 Ill Wrench v. Jutting [1841], 3 Bea. 521; 5 Jur. 145; 52 E. E. 210.. 76 Wrey, Ee, Stuart v. Wrey [1885], 30 Ch. D. 507; 54 L. J. Ch. 1098; 53 L. T. 334 274 ^ Wright V. Atkyns [1815], G. Coop. Ill; 17 Ves. 255; 19 Ves. 299; 1 V. & B. 313; T. & E. 143; 13 E. E. 199 121, 205 Wright ,/. Home [1723], 8 Mod. 222 59 Wright V. Pearson [1758], 1 Ed. 129; Amb. 358; Fearne, C. E. 126 229 Wrightson v. Calvert [1860], 1 J. & H. 250; 128 E. E. 350 84, 85 Wrightson v. Macaulay [1845], 14 M. & W. 214; 15 L. J. (N. S.) Ex. 121; 4 Hare, 487; 69 E. E. 679 210 Wykham u. Wykham [1811], 18 Ves. 395 7 Wylde, Ee [1853], 2 D. M. & G. 724; 16 Jur. 1029; 22 L. J. Ch. 87; 20 L. T. 0. S. 162; 95 E. E. 307 152 H. / Ixxxii TABLE OF CASES. PAGE WyUe, Re, WyUe v. Moffat, [1895] 2 Ch. 116; 64 L. J. Ch. 613... 27 Wynch, Ex parte [1854], 5 D. M. & G. 188; 23 L. T. 0. S. 259; 104 R. R. 74; (Re Wynch's Trusts), 18 Jur. 659; 2 W. R. 570; 2 Eq. R. 1025; 23 L. J. Ch. 938; affg. 1 Sm. & G. 427 194, 242 Wyndham v. Wyndham [1790], 3 Br. C. C. 58 58 Wynne v. Hawkins [1782], 1 Br. C. C. 179 203 Yates, Re, Yates v. Wyatt, [1901] 2 Ch. 438; 70 L. J. Ch. 725; 85 L. T. 398; 49 W. R. 646 165 Yates, Re, Bostock v. D'Eyncourt, [1891] 3 Ch. 53; 64 L. T. 819; 39 W. R. 573 149 Yates V. Maddan [1851], 3 Mao. & G. 532; 21 L. J. Ch. 24; 16 Jur. 45; revg. [1849], 16 Sim. 413; 18 L. J. Ch. 310; 13 Jur. 331; 87 R. R. 184 168 Yates V. Thomson [1835], 3 CI. & Pin. 544; 39 R. R. 40 10 Yates's Trust, Re [1852], 21 L. J. Ch. 281; 16 Jur. 78; 91 R. E. 319 262 Yeats V. Yeats [1852], 16 Bea. 170; 96 E. E. 80 84 Youman's Will, Re, [1901] 1 Ch. 720; 70 L. J. Ch. 430; 84 L. T. 201; 49 W. R. 509 191 Young V. Turner [1861], 1 B. & S. 550; 30 L. J. Q. B. 268; 8 Jur. (N. S.) 52; 5 L. T. N. S. 56; 124 R. R. 645 261 ADDENDA. p. 129. As to nearest of kin of A. and his wife, see Re Soper, Naylor V. Kettle, [1912] 2 Ch. 467. P. 161. Add to last line, Re Young, Brown v. Hodgson, [1912] 2 Ch. 479. P. 210 As to a devise to "next male heir," see Re Watkins, Maybery V. Lightfoot, [1912] 2 Ch. 430. P. 259. As to " die without leaving a male heir,'' see Re Leach, Leaoh V. Leach, [1912] 2 Ch. 422. THE LAW OP CONSTEUCTION OF WILLS. INTEODUCTION. 1. General Principles of Construction. Mr. Hawkins observes — " The General Principles which govern the Construc- " tion of Wills are fully settled by authority, and may be " conveniently expressed, for purposes of reference, in the " Four Propositions following, with the accompanying " quotations, viz. — Pkop. I. In construins' a will, the obiect of the Meaning and ™ . .,..., intention. Courts IS to ascertain, not the intention simply, but the expressed intentions of the testator, i.e., the intention which the will itself, either expressly or by implication, declares : or (which is the same thing) the meaning of the words, — the meaning, that is, which the words of the will, properly interpreted, convey. In Shore v. Wilson (9 01. & F. 525), Coleridge, J., says: "The object of all exposition of written instru- ments must be, to ascertain the expressed meaning or intention of the writer, the expressed meaning being equivalent to the intention." In Doe d. Brodbelt v. Thomson (12 Moo. P. C. C. H. 1 GENERAL PRINCIPLES OF CONSTRUCTION. 116), Turner, L. J., says: "It is upon intention either expressly declared or collected by just reasoning upon the terms of the instrument, or evidenced by surrounding circumstances, where surrounding circumstances can be called in aid, and not upon conjecture merely, their Lordships feel bound to proceed" [at p. 127]. In Abbott V. Middleton (7 H. L. C. 68), Lord Cran- worth says : It is not the duty of a Court of Justice "to search for the testator's meaning, otherwise than by fairly interpreting the words he has used." And Lord Wensleydale, in the same case: "The use of the expression, that the intention of the testator is to be the guide, unaccompanied by the constant explana- tion that it is to be sought in his words, and a rigoroua attention to them, is apt to lead the mind insensibly to speculate upon what the testator may be supposed to have intended to do, instead of strictly attending to the true question, which is, what thut whioh he has written means. The wiU must be in writing, and that writing only is to be considered" [at p. 114]. In Ralph v. Carrick (11 Ch. D. at p. 878), Cotton, L. J., says: " As regards our duty when wills come before us for construction, it is obvious to say that it is in each case to consider the words of the will. I say that, for the purpose of calling attention to the argument that in the absence of any rule laid down or established by cases, we are at liberty to construe wills as ordinary intelligent persons would do. There is a fallacy in this. We are bound to have regard to any rules of construction which have been established by the Courts, and subject to that we are bound to construe the wiU as trained legal minds would do. Even very intelligent persons whose minds are not so trained are accustomed to jump at a conclusion as to what a person means by considering what they, under similar circumstances, think they would have done. That is conjecture only, and conjecture on an imperfect knowledge of the circumstances of the case, because the facts known to the testator may not all be before them, and the testator's mind, as regards the attention to be SENSE OF WORDS AND EXPEESSIONS. paid to the claims of the different parties dependent upon him, may not have been constituted as their minds are constituted, so that it cannot be concluded that he would have acted in the same way as they. We therefore must construe the wiU as we should construe any other docu- ment, subject to this, that in wills, if the intention is shown, it is not necessary that the technical words which are necessary in some instruments should be used by the purpose of giving effect to it." Prop. II. In construing a will, the words and Sense of . . , words and expressions used are to be taken m tneir ordinary, expressions. proper, and grammatical sense ; — unless upon so reading them in connection with the entire will, or upon applying them to the facts of the case, an ambiguity or difficulty of construction, in the opinion of the Court, arises : in which case the primary meaning of the words may be modified, extended, or abridged, and words and expressions supplied or rejected, in accordance with the pre- sumed intention, so far as to remove or avoid the difficulty or ambiguity in question, but no further. It follows from Prop. I., that in every case the words used must be capable of bearing the meaning sought to be put upon them. In Shore v. Wilson (9 CI. & F.. 565), Tindal, C. J., says: " The general rule I tate to be, that where the words of any written instrument are free from ambiguity in themselves, and where external oiroumstanaes do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument, or the subject-matter to which the instrument relates, such in- strument is always to be construed according to the strict, plain, common meaning of the words themselves." In Abbott V. MiMleton (7 H. L. C. 68), Lord Wensley- 1(2) GENERAL PRINCIPLES OP CONSTRUCTION. dale says: " It is now, I believe, universally admitted, that in construing [a will], the rule is to read it in the ordi- nary and grammatical sense of the words, unless some obvious absurdity, or some repugnance or inconsistency with the declared intentions of the writer, to be extracted from the whole instrument, should follow from so reading it. Then the sense may be modified, extended, or abridged, so as to avoid those consequences, but no farther. This rule, in substance, is laid down by Mr. Justice Burton, in the case so frequently quoted of Warburton v. Loveland (1 Huds. & Br. 648). It had been pre- viously described as ' a rule of common sense as strong as can be,' by Lord EUenborough, in the case of Doe v. Jessep (12 East, 293). It is stated as 'a cardinal rule,' from which, if we depart, we launch into a sea of difficul- ties not easy to fathom, by my noble and learned friend when Chancellor, in Gundry v. Pinniger (1 D. M. & G. 502); and as 'the golden rule,' when applied to Acts of ParKament, by C. J. Jervis, in Mattison v. Hart (14 C. B. 385), and by the late Mr. Justice Maule, as 'the most general of rules, a general rule of great utility.' Gether v. Cupper (24 L. J. C. P 71). Many other authorities might be cited, but there is no doubt of the excellence and generality of the rule. " Quite consistently with this rule, words and limita- tions may be suppHed or rejected when warranted by the immediate context or the general scheme of the will, but not merely on a conjectural hypothesis of the testator's intention, however reasonable, in opposition to the plain and obvious sense of the instrument" [at p. 114 (a)]. In a MS. note, Mr. Hawkins adds: "That the proper "sense of words is not to be departed from because "the disposition made appears improbable, see per " Wigram, V.-C, in Bird v. Luckie (8 Hare, 306, 307)." " No man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise, or the (a) See also Gordon v. Gordon, L. E. 6 H. L. 254 ; and Bathurst t. Errington, 2 A. C. at p. 709 (Ed.). TECHNICAL WORDS, good. A testator is permitted to be capricious and im- provident, and is, moreover, at liberty to conceal the cir- cumstances and the motives by which he has been actuated in his dispositions. Many a testamentary disposition may seem to the world arbitrary, capricious, and eccentric, for which the testator, if he could be heard, might be able to answer most satisfactorily." Prop. III. As a corollary to, or part of, the Technical last Proposition, — technical words and expressions must be taken in their technical sense, unless a clear intention can be collected to use them in another sense, and that other can be ascertained. In Doe d. Winter v. Perratt (6 Man. & G. 342), Lord WensleydaJe (then Parke, J.) says: "It is a rule in the judicial exposition of wills, that technical words, or words of known legal import, are to be considered as having been used in their technical sense, or according to their strict acceptation, unless the context contains a plain in- dication to the contrary. Such is the rule laid down by Eyre, C. J., in Buck v. Nurton (1 B. & P. 57), by Lord Alvanley, M. E., in Thellusson v. Woodford (4 Ves. 329), and in Poole v. Poole (3 B. & P. 620), citing Good- right V. Pulleyn (2 Lord Raym. 1437), and lastly by Lord Eedesdale, in Jesson v. Wright (2 Bligh, 1), and other authorities." In Roddy v. Fitzgerald (6 H. L. C. 877), Lord Weneleydale says: " Another rule of construction has been referred to by several of the Irish as well as by some of the English Judges, viz., that the general intention of the testator was to prevail over the particular intention. This doctrine, which commenced, I believe, with Lord C. J. Wilmot, and has prevailed a long time, had, I thought, notwithstanding the use of those terms by Lord Eldon in the leading case of Jesson v. Wright, been put an end to by Lord Redesdale's opinion in the same case, and by the powerful arguments against its adoption in Mr. Hayes's Principles, by Mr. Jarman in his excel- O GENERAL PRINCIPLES OF CONSTRUCTION. lent work on Wills, and by the judgment of the Court delivered by Lord Denman in Doe v. Gallini (5 B. & Ad. 640), in which the opinion of Lord Redesdale is approved and adopted. And certainly, if accuracy of expression is important, the use of those terms had better be discon- tinued, though if qualified and understood as explained in the last mentioned case, and in the opinion of some of the Judges — Baron Watson for example — it can make no difference in the result. Lord Redesdale says, ' that the general intent shall overrule the particular, is not the most accurate expression of the principle of decision. The rule is, that technical words shall have their legal effect, unless from other words it is very clear that the testator rrmant otherwise.' " Letter and Prop. IV. Notwithstanding the last two Pro- positions — the intention of the testator, which can be collected with reasonable certainty from the entire will, with the aid of extrinsic evidence of a kind properly admissible, must have effect given to it, beyond, and even against, the literal sense of particular words and expressions. The inten- tion, when legitimately proved, is competent not only to fix the sense of ambiguous words, but to control the sense even of clear words, and to supply the place of express words, in cases of difficulty or ambiguity. In Keyv. Key (4 D. M. & G. 73), Knight Bruce, L. J., says: "I agree 'certa pro incertis non relinquenda ; ' but I say also 'in obscuris quod verisimilius,' and as 'leges non ex verbis sed ex mente inteUigendas,' so of wills. In common with aU. men, I must acknowledge that there are many cases upon the construction of documents, in which the spirit is strong enough to overcome the letter; CEises in which it is impossible for a reasonable being, upon a careful perusal of an instrument, not to be satis- fied from its contents that a literal, a strict, or an ordinary INTENTION CONTROLS THE LETTERS. interpretation given to particular passages, would dis- appoint and defeat the intention with whioh the instru- ment, read as a whole, persuades and convinces him that it was framed. A man so convinced is authorised and bound to construe the writing accordingly. " Such decisions upon controversies ' ex scripto ct sententia' — as Cicero terms them (De Inv. II., c. 42); — 'script! et voluntatis' — in the language of Quintilian (Inst. Or. VII., c. 6, s. 1), who, citing the Judicium Curianum, says, ' In testamentis et iUa accidunt ut voluntas manifesta sit, scriptum nihil sit,' and adds, ' Id quoque, quod huic contrarium est, aocidit nuper ut esset scriptum quod appareret scriptorem noluisse,' have been of course frequent and familiar, when and wherever justice has been administered among civilised and en- lightened men. This is a controversy of that class; and though it may perhaps seem neither necessary nor very apt in a cause of the particular species of the present to refer to such cases as Browne v. De Laet (4 B. C. C. 527). Church v. Mundy (12 Ves. 426), and Booth v. Blundell (1 Mer. 193; 19 Ves. 494), yet the language of Lord Thurlow and Lord Eldon in those instances seems to me not without application. Nor does Lord Eldon's reference, with apparent assent, in WyMiam v. Wykham (18 Ves. 395), and Wilkinson v. Adam (1 V. & B. 466) to Lord Hardwicke's expression in Cory ton v. Helyar (2 Cox, 340). The language as given in Wilkinson v. Adam is, ' Necessary implication means, not natural necessity, but so strong a probability of intention, that an intention contrary to that which is imputed to the testator cannot be supposed.' The phrases given in Wykham v. Wyk- ham, are ' probable necessity,' and ' an implication so probable that the mind could not resist it.' Mr. Cox's report is thus: 'There is hardly any case where an im- plication is of necessity, but it is called " necessary " because the Court finds it so to answer the intention of the devisor.' Finally, I may mention the present Lord Chancellor's opinion in a recent case of Hart v. Tulk (2 D. M. & G. 300), where it was held by his lordship and GENERAL PRINCIPLES OF CONSTRUCTION. myself that a schedule had been described in a will by a wrong number, and the authorities there referred to" [p. 84 et seq. (&)]. Lord St. Leonards in Grei/ v. Pearson (6 H. L. C. 61) says: " Nobody is more disposed than I am to abide by dear words, and to give to them their natural and gram- matical meaning; Ibut I neVer did and I never can oome to this conclusion, that the words of a will Cannot admit of modification according to the real intention of the testator, as you find it from other expressions, or from the whole context of the will. It is difficult to lay down any ahetraot rule upon the subject, but where I find the intention, and I find words pointing out the intention, and that if I give to the words their simple meaning according to grammar and according to their plain prima facie import, I defeat; the intention, — I hold that I am bound, by every rule both of law and equity, to see whetlier I cannot give to them, by natural construction, an import which will effectuate and not defeat the intention" [at p. 99]. Lord Kingsdown, in ToKms'v. Wentworth (11 Moo. P. C. C. 526), says: " In order to determine the meaning of a will, the Court must read the language of the testator in the sense which it appears he himself attached to the expressions which he has used, — with this qualification, that when a rule of law has affixed a certain determinate meaning to technical expressions, that meaning must he given to them, unless the testator has by his will excluded, beyond all doubt, such construction. "When the main purpose and intention of the testator are ascertained to the satisfaction of the Court, if parti- cular expressions are found in the will which are incon- sistent with such intention, though not sufficient to control it, or which indicate an intention w'hiA the law will not permit to take eflect, siulh expressions must i>e discarded or modified; and on the other hand, if the will shows that the testator must necessarily have intended an interest to (J) See also Ware v. Watson, 7 De G. M. & G. at p. 259 (En.). WILL AND CODICIL EEAD TOGETHER. 9 be given which there are no words in the will expressly to devise, the Court is to supply the dsffict by implication, and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has on the whole will suffi- ciently declared" [at p. 543]. In a MS. note Mr. Hawkins adds: "See also Lang- " ston V. Larigston, 2 01. & Pin. 194 ('second, third, "and other sons' held to include an eldest son); NeW- " burgh v. Neivhurgh, Sugd. Law of Property in House "of Lords, p. 367 ('in county of Sussex' struck out "so as to include estates in county of Gloucester)." Will and Codicil read together. — " It is a general -S"' i. Starie "principle to construe a codicil so as to interfere "as little as may be with the dispositions of the will: "and the onus pr^db(t^i is on those claiming under "the codicil to show that it displaces the will. Doe "d. Hearle v. Hicks, 1 CL & Pin. 20; Robertson v. " Poufell, 2 H. & C. 762 (life interest in particular "estate not revoked by general devise); Williams v. " Evans, 1 EU. & Bl. 727 (gift of tithes not revoked by "devise of 'all my real estate'); CooJcson v. Hancoclc, "2 My. & Cr. 606 (trusts of legacies not altered by "making the division equal); Nei&man v. Lade, 1 " Y. & C. C. C. 680 (or by change of trustee)." " If such idevise in the will is clear, it is incumbent on those who contend it is not to take effect by reason of a revocation in the codicil, to show that the intention to revoke is equally clear and free from doubt as the original intention to devise; for if there is only a reason- able doubt whether the clause of revocation was intended to include the particular devise, then such devise ought undoubtedly to stand." {Per Tindal, C. J., Hearle v. Kicks, 1 CI. & Pin. 20) [at p. 24]. Effect of Domicil on Construction. The following observations on domicil are also taken from the MS. of Mr. Hawkins, who says — " We may distinguish between (1) general principles of DomioU. 10 GENERAL PEINCIPLES OP CONSTRUCTION. " construotion, (2) rules of evidenoe, (3) special rules of "construction, and (4) rules of law. Domioil. " (1) The general principles of construotion seem to "apply to all wills, independently of domicil. The rule "laid down in Di Sora v. PhilUpps (10 H. L. C. 624, "the case of an Italian settlement) will apply to the will "of a domiciLed foreigner." " Where a written contract is made in a foreign country, and in a foreign language, the Court, in order to inter- pret it, must first obtain a translation of the instrument; secondly, an explanation of the terms of art (if it con- tains any); thirdly, evidence of any foreign law appli- cable to the case; and fourthly, evidence of any peculiar rules of construction, if any such rules exist by the foreign law. With this assistance the Court must in- terpret the contract itself on ordinary principles of con- struction." (Per Lord Cranworth, 10 H. L. C. 633.) " Thus," continues Mr. Hawkins, " in Bernal v. Bernal " (3 Myl. & Cr. 559), a bequest by a domiciled Dutch- "man to 'male descendants' was construed as in an " English will, the Dutch law furnishing no special rule "of construction. " (2) The Courts here would it seems in all oases " apply their own rule as to the admissibility of evidence. " (Per Lord Brougham, Yates v. Thomson, 3 CI. & Fin. "544.) " (3) It is clear, as regards personal estate, that those "special rules of construction (i.e., rules for ascertaining "the testator's meaning), if any, must be applied, which " are found in the law of the domicil. " Thus, in Anstruther v. Chalmer (2 Sim. 1), the "domicil being English, a bequest to 'A. and his heirs,' "though in a wiU. in the Scotch form made in Scotland, "was held liable to lapse; the expression used not being " peculiar to Scotch law, but common to and on this point " interpreted differently in the two countries. " So, a bequest to the children of a foreigner is confined "to legitimate children, if the testator's domicil be " English (Boyes v. Bedale, 1 H. & M. 798), though if PUNCTUATION. 11 " the domicil were foreign and no rule of construction DomicU. "proved it would, it seems, extend to reputed children. "(Barlow v. Orde, 3 L. R. P C. 164.) In Boyes v. " Bedale, it was held that the legitimacy must be accord- " ing to the law of domicil of the testator, not of the father "at the birth and marriage; but qu. as to this, and see "Skottowe V. Young, L. R. 11 Eq. 474." Boi/es V. Bedale (1 H. &M. 798) has not been approved. (Re Goodman's Trusts, 17 Ch. D. 266; Re Andros, 24 Ch. D. 637.) Mr. Hawkins continues — " So, the domicil being Scotch, a charitable legacy was " construed not liable to abate in the proportion of impure "to the whole personalty. (Macdonald v. Macdonald, "L. E. 14Eq. 60.) " What special rules of construction are to be applied " to gifts of real estate seems uncertain. " (4) When the testator's meaning is ascertained, the " rules of law to be applied to the dispositions contained " in it are, as regards personal estate (other than lease- " holds), those of the domicil, and as regards immoveable " or real estate, those of the lex loci. Thus, if a testator "domiciled in Ireland directs the income of his English "leaseholds and general personal estate to be accumu- "lated during the life of A. (a living person), this is "good as to the general personal estate, and void as to " the leaseholds beyond twenty-one years from his death. " (Freke v. Carberfy, L. E. 16 Eq. 461.)" [See also Re Hoyles, (1910) 2 Ch. 333; (1911) 1 Ch. 179.] 2. On Punctuation. Punctuation, &c. to he adverted to. — Mr. Hawkins Punctuation observes: "Notwithstanding a dictum of Sir W. Grant ™iu"^™ "in Sanfard v. Raikes (1 Mer. 651) (c), it appears to be " settled, that in construing a will marks of punctuation. (c) Lord Westbury approved of this dictum in Gordon v. Gordon, L. E. 7H. L. at p. 276 (Ed.). 12 GENKKAL PEINCIPLES OF CONSTRUCTION. "as parentheses, stops, capital letters, &c., may be taken "into consideration." "In Morrall v. Sutton (1 Phill. 533), there was a be- " quest of leaseholds 'to Sarah Callcott, her executors, " administrators, and assigns (subject to the said an- " unities charged thereon),' in a parenthesis, 'during the "term of her natural life.' Parke, J., in his judgment, Parenthesis, "observed:" "That proposed by the appellant, besides being a very strained construction, requires us to reject the marks of parenthesis which are clearly visible in the probate of the will, and which show that the testator means the sentence to be read;, passing over the inter- mediate words, as if it had contained a gift to Sarah Callcott, her executors, adtoinistrators, and assigns, for her natural life" [at p. 538]. Mr. Hawkins continues — " In Compton v. Bloxham (2 Coll. 201), V.-C. Knight " Bruce sent for and examined the original will, and "decided on the ground that the words 'my monies' "began an entirely new sentence. " It would seem that marks of punctuation, as stops, " capital letters; &c., in the original wiU may be adverted "to, though not in the probate, and though the question "relates to personal estate. (Oppenheim v. Henry, "9 Hare, 802 n.) But the probate is conclusive as to " what the words of the will are. " In Manning v. Purcell (7 D. M. & G. 55), where the " will, one of personalty, was a common printed form " filled up by the testator, with parts of the form struck "out, the original will was sent for, and Turner, L. J., " in giving judgment, said : ' In coming to this conclusion, gjagnrgg " I have not overlooked the efiect to be given to the "erasures, as they appear on the original will.' (p. 66.) "In ChiU\. Elsioorth (2 D. M. & G. 679), there were " several gifts of legacies, the last gift followed by the "words 'to be paid twelve months after the decease of "A.' The question was, whether the direction for "postponement of payment applied to all the legacies, "or only to the last of them. It was held to apply to ADMISSIBILITY OF EVIDENCE. 13 "all the leg^acies; and Cranworth, L. J., in giving judg- ment, said": "It is only necessary to add, that we have cau&ed the original will to be examined, and it appears that the whole gift in question to the children and grand- children of W. D., including the direction for the time of payment, is ^^Titten continuously as one sentence, and is closed with a full stop." (p. 683.) Mr.. Hawkins continues — "In Gauntlett V. Carter (17 B. 586), the testator de- " vised his freehold estates, 'situate in Bullen Court, "Strand, and Maiden Lane.' Before and after the word Commas. "'Strand' there were commas. The testator having "houses in Bullen Court, and others in the Strand but "not in Bullen Court, the question was whether the word "'Strand' was part of the description of Bullen Court, "or whether it operated to pass freehold estates of the "testator situate in the Strand. Eomilly, M.E., de- " cided in favour of the latter construction; and observed," " the introduction of the commas before and after the word Strand is a circumstance of importance" (p. 591). In Ee Harrison (30 Ch. D. 390), Lord lilsher said: Blank. " The main argument in this case is founded on there being a blank in the will, and how can you tell that there is a blank without looking at the will? I know of no rule that, for the purpose of construing a will, you may not look at the original will itseK." See also Reeves v. Reeves, (1909) 2 Ir. 521; Gaskin v. Rogers, L. E. 2 Eq. 284 (erasures). Experts in writing may be consulted. (Goblet v. Beachey, 2 R. & My. 624.J 3. Admissibility of Evidence. Mr. Hawkins re-wrote the section headed " Parol Evi- dence of Intention, when admissible," which is here replaced by the following taken from Mr. Hawkins' MS.; he says— " To all Courts of construction must be conceded the Admiesibility "assistance (if necessary) of experts in writing, and of g^j^g^g "a general or local dictionary. On the other hand, if a 14 GENERAL PRINCIPLES OP CONSTRUCTION. Bqaivocai deeoriptions. nuncupative will be unlawful, the admission in any case of evidence to show what were the testator's actual /in- tentions is an anomaly, not a deduction from strict prin- ciple. The general rule is, however, now conclusively established that — Rule. Evidence of the circumstances surround- ing the testator at the date of the will, the state of his family, and his property, is admissible in aid of construction. But, Evidence to show what were the actual testa- mentary intentions of the testator (as the instruc- tions for will, declarations as to what he would do or had done by his will and the like) are admissible only, (a) to determine which of several persons or things was intended under an equivocal description {Doe d. Hiscocks v. Hiscocks, 5 M. & W. 363 ; Miller v. Travers, 8 Bing. 244 ; Drake v. Drake, 8 H. L. C. 172 ; Charter v. Charter, L. R. 7 H. L. 364); (b) to rebut, or again to support, a bare legal " presumption " {Hurst \. Beach, 5 Madd. 351 ; Wallace v. Pomfret, 11 Ves. 542). " Equivocal descriptions are such as apply with Buffi- " cient legal certainty to each of several persons or things: " as a devise to A. B., or 'of my close at X. in the occupa- " tion of Y .,' there being at the date of the will two persons "named A. B., or two closes at X. in Y.'s occupation. A " description, part of which applies to one person or thing, "and part to another, as a devise to John Thomas S., "there being a John S. and also a Thomas S., is not "equivocal. (Doe v. Hisoocks, Drake v. Drake, Charter "v. Charter, ubi supra (d).) [d) See also Se Wolverton Mortgaged Estates, 7 Ch. D. 197 (Ed.). EVIDENCE OP CIRCUMSTANCES. 15 The (so-called) ' Presumptions ' are, in fact, certain Presumptions. " civil law rules of construction, which, having been un- " willingly adopted by Courts of equity, aje allowed to " be repelled by evidence which would have been admis- "sible in the system from which they are derived. The ' presumptions ' now existing seem to be four, 1 ■ ) 1 1 • 1 money at a a bequest oi the testator s monies, though it does not banker's, "ordinarily pass money in the funds, includes money "standing to the testator's account at his banker's, "whether on a current account (Parker v. Marchant, 1 "Phill. 356), or on a deposit account. {Manning v. "Purcell, 7 D. M. G. 55.)" But " cash at my banker's " does not include money on deposit if notice of withdrawal is required {Re Boorer [1908], W. N. 189); see also post, p. 69, as to "ready money." Mr. Hawkins continues — " It seems that stock in the funds may pass under a Securities for "bequest of 'securities for money.' {Bescoby. v. Pack, ™°°^y' "1 Sim. &Stu. 500.)" Securities for money includes a vendor's lien for un- paid purchase-money {Callow v. Callow, 42 Ch. D. 550); and the word "securities" has been held to mean invest- ments (Be Rayner, [1904] 1 Ch. 176); but money on deposit at a bank does not pass under securities for money. {Hopkins v. Abbott, L. R. 19 Eq. 222.) Whether "Consols" purchased through the Post Office Consols pass under monies at the Post Office Savings Bank, seems through P.O. to turn on the general nature of the will, (fie Mannj [1912] 1 Ch. 388, distinguishing Re Adkins, 98 L. T. 667.) Monies due. — ^Mr. Hawkins continues: "In an old case " {Mary Shelmer's Will, Gilb. Eq. Rep. 200) it was said "Monies," " that ' money ' comprehends both money in the possession including "of the testator, and money due to him; but it seems monies due. " {Langdale v. Whitfeld, 4 K. & J, 426) that a bequest 5(2) ^ READY MONEY. " of the testator's monies would not now be held, without " aid from the context, to pass monies due to the testator "on securitj or otherwise. In Langdale v. Whitfeldy " however, a bequest of the residue of the monies of which " the testatrix might at her death be absolutely possessed, "was held, upon the whole will, to include monies due " on security or otherwise." In Byrom v. Brandreth (L. R. 16 Eq. 475), Lord Selborne held that a gift of " any money of which I may die possessed " only passed money of which the testatrix might claim immediate payment, and did not pass a legacy which had not been assented to, or apportioned parts of an annuity or interest, since the last date for payment. (See also Martin v. Hobson, L. R. 8 Ch. 401 — sums of money due and owing; and Petty v. Willson^ L. E,. 4 Ch. 574 — monies receivable under a policy on the testator's Hfe.) A more detailed account of the construction placed upon the word "money" will be found in Jarman on Wills, pp. 1300 et seq. Ready Money. Ready money RuLE. A bequGst of the testator's "ready inclndes cash 11 -ii i/iii at abanker's. monej includes casu at a banker s on a current account. (Parker v. Marehant, 1 Phill. 356 ; Manning v. Purcell, 7 D. M. Gr. 55 (a).) " Everybody speaks of the sum which he has at his banker's as money; 'my money at my banker's,' is a usual mode of expression. And if it is money at the banker's, it is emphatically ready money, because it is placed there for the purpose of being ready when occa- sion requires." (Parker v. Marehant, 1 PhiU. 360; [per Lord Lyndhurst, C.].) Mr. Hawkins continues — " A bequest of ' ready money,' however, wiU not include (o) In Manning v. Purcell the words were " all my monies " (Ed,). ROGERS V. THOMAS. 69 " unreceived dividends on stock in the funds. (May v. " Grave, 3 De G. & Sm. 462.)" "Ready money" does not include money on deposit Money on with hankers subject to more than twenty -four hours' notice (Re Price, [1905] 2 Ch. at p. 56; Be Wheeler, [1904] 2 Ch. 66), but " monies owing" do. (Be Derby- shire, [1906] 1 Ch. 135.) Rogers v. Thomas. Mr. Hawkins continues — " The word ' money,' however, Rogers v. "is in one instance considered as being used in its most " comprehensive meaning, including the whole personal " estate of the testator; viz. — Rule. Where there is no other general residuary " Money " bequest, and there is a bequest of the "money" ^ter^^ent remaining, or which may remain after payment of ^eans*the the testator's debts and legacies, or after payment general o ' ■■■ •' residue. of his debts (Stocks v. Barre, Johns. 54), the word " money" is held to comprise the whole residuary personal estate of the testator. (Rogers v. Thomas, 2 Keen, 8 ; Stocks v. Barre, Johns. 54 ; Grosvenor V. Durston, 25 B. 97.) [i2e Pringle, 17 Ch. D. 819 ; Be Smith, 42 Ch. D. 302; Be Egan, [1899] 1 Ch. 688 — reversionary interest.] "In this case the general rule of construction must prevail, viz., that where there is no other gift of the residue of the testator's personal estate, and there is a bequest of any 'money' which may remain after pay- ment of his debts, the Court must construe the word ' money ' as including the general residue of the personal estate not specifically bequeathed, and which by law is liable to the payment of his debts." (Stocks v. Barre, Johns. 54; [per Page-Wood, V.-C, at p. 56].) Funeral Expenses. — Mr. Hawkins continues: " The So, after pay- "same rule applies where the bequest is of the 'money' funeral expenses. io MONET LEFT AFTER LEGACIES PAID. which may remain after payment of the testator's funeral expenses. (Leffffe v. Asgill, T. & E. 265, n.; Willis V. Flasketti 4 B.208 (&).) In Legge v. Asgill^ the testatrix in the body of the will said, 'I believe there will be sufficient money left to pay my funeral expenses;' and in the codicil, 'If there is money left unemployed, I desire it may be given in charity.' Ifc was held that in the will, the word ' money ' must have referred to the general residue, because it was out of the general residue that the funeral expenses must be paid; and that the same word in the codicil must have reference to the same subject." Whether, after payment of legaoiea. Legacies. — "In Gosden v. Dotterill (1 My. & K. 56), " a bequest of ' the rest of my money,' following gifts of "pecuniary legacies, was held not to carry the general "residue. This case, therefore, is an authority against "extending the rule in Rogers v. Thomas to a bequest "after payment of legacies; but the reason of the rule "would seem to extend to this case; and Gosden v. "Dotterill was decided before the rule itself was well "established. In Dowson v. Gaskoin (2 Keen, 14), the "testatrix gave certain special directions respecting hetf "burial (which might perhaps be held equivalent to a: " direction for payment of funeral expenses), and gave a' " legacy to her executors, and then bequeathed ' whatever "remains of money:' and it was held that the latter "bequest carried stock." Gosden v. Dotterill was treated by Wood, V.-C, in Lowe V. Thomas (Kay, 369), as a binding authority, but (in accordance with Mr. Hawkins' views) it seems to be overruled by Re Pringle (17 Ch. D. 819); see also •Jarman on WiUs, p. 1035, note (y). In Re Douglas ([1905] 1 Ch. 279), a gift of "any little money left" after bequests of legacies was held to carry the general residue . (4) In this case the context prevented the word "money" from havings the extended meaning : see post, p. 71 (En.). INTENTION TO DISPOSE OP ALL PERSONALTY. 71 General Intention to Dispose of all Personalty. — General o .• iiij 1 1 • • T intention oometimea tne testator shows a clear intention to dispose to dispose of of all his personalty, and this can only be given effeut to allper«>na%- by construing the word "money" to include all the general personal estate. (Pritchard v. Pritehard, L. R. 11 Eq. 232; Re Cadogan, 25 Ch. D. 151; Waite v. CoombeSi supra, p. 66.) The question when the general residue of the personal estate wiU pass by the word "money" is discussed in Jarman on Wills, pp. 1033 et seq. In some cases " money " means aU the general personal estate, except a certain part of it. {Barrett v. White, 24 L. J. Ch. 724; Hart V. Hernandez, 52 L. T. 217; Lloi/d V. Lloyid, 54 L. iT. 841 ; Re lowmley, 53 L. J. Ch. 516.) Exceptions. — Mr. Hawkins continues: "If the gift of Where rule is "the remainder of the testator's monies be followed by '■ a bequest of ' wearing apparel, trinkets, and all other "property I may die possessed of,' the rule is of course " excluded, and the word ' monies ' cannot have its ex- " tended meaning. {Willis v. PlasJcett, 4 B. 208.) "And where the testator directed his books, plate, and '" household furniture to be sold, and after giving a legacy "added, 'in case there is any money remaining I wish it "to be given in charity,' the latter words were held not to "comprise the general residue, on the ground that the "testator was adverting to that which, he had directed tt» "be converted into money, and that the words applied "only to the residue of the produce of the particular " articles directed to be sold, after providing for the pay- "ment ordered to be made. {Ommanney v. Butcher, "T. &R. 260.) " The rule cannot be extended to a bequest of ' ready "money,' so as to make a gift of the testator's 'ready " money ' remaining after payment of his debts carry the "whole personal estate. {Powell's Trust, Johns. 49; "\Nevinson v. Lennard, 34 B. 487 — cash].) 72 ESTATE. "Estate" includes both real and per- sonal estate. " Estate." " The word ' estate ' was in the older cases not unfre- " quently held to be confined to personal estate. In " Woollam V. Kmworthy (9 Ves. 137), Lord Eldon said: "'The question whether the words "all my estate and "effects" will include a real estate or not, depends upon "the context of the will.' But the rule seems to be ob- " served with consider ahly greater strictness in modern " times, that, — Rule. The word "estate" comprehends both the real and personal estate of the testator. {[^Bridgwater v. Bolton], 1 Salk. 236 ; Barnes v. Patch, 8 Ves. 604 ; Mayor of Hamilton v. Hodsdon, 6 Moo. P. C. C. 76.) "The word 'estate' is genus generalissimurr„, and in- cludes all things real and personal." {Per Lord Holt, 1 Salk. 237.) Mr. Hawkins continues: — " It was formerly considered that where the word " ' estate ' occurred among words descriptive of personal " property only, and the limitations and trusts declared " were appropriate only to personal estate, the meaning " of ' estate ' was to he restricted to personal estate. Thus "in Doe d. Spearing v. Buckner (6 T. R. 610), where "the testator gave all the rest of his estate and effects "of what nature soever to A. and B., their executors "and administrators, in trust to add the interest to the " principal so as to accumulate the same, real estate was "held not to pass. And this construction was adopted "in the recent case of Coard v. HoMerness (20 B. 147): "whHe in Saumarez v. Saumarez (4 My. & Cr. 331), "and StoJces v. Salomons (9 Hare, 75), although the word " ' estate ' was upon the whole will held to carry real " estate, yet the question was considered doubtful by "reason of the applicability of the trusts declared to per- "sonal estate only. [Llo^d v. Lloyds L.E. 7 Eq. 458. J ESTATE. 73 " But the case of 'O'Tooh v. Browne (3 Ell. & Bl. 572) Notwith- " seems to put an end to this class of exceptions to the rule, the language " In 0' Toole v. Browne the testator 'by a will made in o^tjiewiu u -lo An A 1 • applies to 1849, aflter bequests of legacies and of household goods personal "and furniture, gave 'all the rest, residue, and remain- ^\^^°^^' "der of my goods, chattels, stock in trade, estate, and Broume. " effects of what nature and kind soever,' not therein- " before bequeathed, to trustees to hold to them and to ',' their executors, administrators, and assigns, in trust to "sell, &c., and to assign and convey the said residue of "his estate and effects, and the interest, dividends, and " produce thereof, to the testator's children on the youngest "attaining twenty-one. The testator had no real estate "at the date of the will: but it Was held that after-ac- " quired real estate passed. "In Doe V. Evans (9 Ad. & Ell. 719) and D'Almaine "v. Moseley (1 Drew. 629), in both of which cases real "estate was held to pass, a distinction was mentioned, "that where the word 'estate' was associated with other " words sufficient to pass the whole personal estate, it "would carry real estate, but not otherwise (the trusts "declared being applicable to personal estate only): so "that a bequest of 'estate and effects' would carry real "estate, where 'estate' alone would not do so. But qu. "whether this distinction would now be attended to." InD'Almaine v. Moseley {supra at p. 632) Kindersley, V.-C, said: "The general principles applicable to cases of this sort are well established; . . . one rule is, that the word testate simply, is sufficient to pass real estate; but in most cases the word estate is not used simply; and another rule is this, that, supposing there is nothing in other parts of the will to control the meaning of the gift, the /effect of the word estate, coupled with other words, is this: if the other words would without the word estate not be sufficient to pass the whole personal estate, the word estate will be considered as used to effect a complete passing of the personal estate; but if the other words are sufficient to pass all the personal estate, then the word estate Imust be read as intended to apply to real estate.!' 74 EFFECTS. This statement was quoted with approval by Buckley, J.,, in Eirhy-Smith v. Parnell ([1903] 1 Ch. at p. 490, in which there were other words sufficient to pass the per- sonal estate). Nevertheless it is submitted that Mr. Hawkins' rule is correct, and his qucere well founded, and that the modern rule is that the word estate has its full meaning- unless the context clearly restricts it. (Loftus v. Stoney^ 17 Ir. Ch. 178; Hamilton v. BucTcmaster, L. E. 3 Eq. 323; in Belan&y v. Belaniet/^ L. E. 2 Ch. 138, there waa a restrictive context.) For a further discussion of the matter see Jarnmn on, Wills, pp. 991 et seq. "Effects" does not primi facie include real estate. "Efeds." Mr. Hawkins continues: — " Notvdthstanding some " cases inconsistent with the rule, it appears to be settled "by authority that, — Rule. The word "efEects" is confined to per- sonal estate, and does not include real estate, unless an intention appear to the contrary. {Doe d. Hick V. Bring, 2 M. & Sel. 448 ; Doe d. Haw v. Earhs, 15 M. & W. 450.) " In Hogan v. Jaekson, Lord Mansfield certainly con- sidered effects as a word of very general and extensive signification, and if his authority stood alone, I should be inclined to think that he considered the word effects as sufficient in itself to pass the real estate. But the sub- sequent cases of Camfield v. Gilbert and Doe v. Lainch- hwry, have treated it otherwise, and as applying only to personalty in its primary signification." {Per Bayley, J., in Doe v. Dring, 2 M. & Sel. 458.) " There is no doubt that the meaning of the word 'effects' is, in common parlance, confined to personal things; and it has been judicially decided to bear that meaning, unless the context shows that the testator used GOODS, CHATTELS. 75 it in a more.oomiprehensiVe sense. iThis was held by all the Court of King's Bench, in the eases of CamfieM v. Gilbert (3 East, 516) and of Doe v. Langlands (14 East, 370); and although according to the report of the case of The Marquis of TitchfieM v. Harncastle (2 Jur. 610), Lord Langdale appears to have thought that the word might originally have been construed to embrace all the effects, real and personal, of a man's industry, he does not intimate any opinion that the decisions ought not to be abided by." {Per Parke, B., in Doe v. Earies, 15 M. & ,W. 456.) Mr. Hawkins continues — " In Doe d. Hick v. Dring (2 M. & Sel. 448), the will in exfenso was as follows: 'I, A. B., declare this to be my will, by which I give and bequeath to my wife all and singular my effects of what nature or kind soever^ to her own use and enjoyment during her natural life, and at her death to be equally divided between our surviving children.' It was held that real estate could not pass. " But the context may show an intention to include real estate under the word ' effects ; ' as if the testator speaks of 'my said effects,' referring to a previous devise of land {Doe'T. Whiter 1 East, 33; Den v. Trout, 15 East, 394), or direct an annuity to be paid out of his real and personal estate by the persons to whom the ' effects ' are given. {Marquis of TitchfieM v. Horncastlei 2 Jur. 610.)" In EaU V. Rail ([1892] 1 Ch. 361), a devise of effects wheresoever situate was held to pass real estate. In a farmer's wiU "effects" has been held to pass real estate. {Smyth V. Smyth, 8 Ch. D. 561; Stelfox v. Stelfox [1874] Wt. N. 161.) The cases are set out in more detail in Jarman on Wills, pp. 1018 et seq. "Goods," "Chattels." Rule. The "word "goods," and equally the word "Goods," "chattels," prima facie comprise the whole per- " ciiatteis.'" 76 " EFFECTS " KESTKAINED BY CONTEXT. sonal estate of every description. [Kendall v. Kendall, 4 Russ. 370.) Mr. Hawkins observes that — " In some cases the nature of the bequest may show that " particular species of personal estate could not be intended "to pass by it. In Borton v. Dunbar (30 L. J. Ch. 8), "where the testator bequeathed the remainder of his " ' money and effects ' to be expended in purchasing a " suitable present for his godson, it was held that a con- "tingent reversionary interest in stock did not pass: but "the case seems one of difSculty." The word "goods" was restrained by the context in Wrench v. Jutting (3 B. 521), and the word "Sects'" in RawUngs v. Jennings (13 Ves. 39). On this subject, see Jarman on WiUs, pp. 1022 et seq. 77 CHAPTEE VI. OBJECTS OF GIFT GENERALLY. Brown v. Higgs. Mr. Hawkins observes — " If the testator by will leaves the objects of his bounty "to be selected by a given person, and no selection is made, "either by the death of the person to whom the duty is " entrusted or otherwise, it might be argued that there iwas "in event no devise or bequest; but the Court, where a " class of objects are pointed outamong whom the selection "is to be made, carries out the intention of the testator "cypres, whether the power be one of selection or dis- "tribution: and it is a rule that, — Rule. If real or personal estate be given to or £rou>n v. for the benefit of such 0/ certain objects as A. shall 5'^^*" ^ ■^ •" _ _ Power of appoint, or to or for the benefit of certain objects selection or in such proportions as A. shall appoint, and there is not being • i», ■jniij' * t I '.cai exercised, the no gilt in deiault of appointment: — 11 the power property is of selection or distribution be not exercised, the a^^g the ffift is not void for uncertainty, but the property o^Jeo^ of the o J f r r J power is held divisible among all the objects of the equaUy. power equally. [Brown v. Higgs, 4 Ves. 708 ; 8 Ves. 561 ; Burrough v. Philcox, 5 My, & Cr. 72.) " Thus if the testator bequeath property to such of his "relations as A. shall think most deserving {Harding v. " Glyn, 1 Atk. 469), or to his widow to divide among his "children as she shall think fit (Grieveson v. Kirsopp, 2 "Keen, 653), or for the benefit of the wife and children of 78 BKOWN V. HIGGS. "A. in such manner as he shall by will bequeath {Brown "v. Pocock, 6 Sim. 257), and the power be not exercised, "as by the death of the donee of the power or by his " declining to exercise it, the Court wiU divide the pro- " perty equally among the class of objects mentioned, per " capita." " When there appears a general intention in favour of a class, and a particular intention in favour of individuals of a class to be selected by another person, and the par- ticular intention fails, from that selection not being made, the Court wiU carry into eSect the general intention in favour of the class. When such an intention appears, the case arises, as stated by Lord Eldon in Brown v. Kiggs, of the power being so given as to make it the duty of the donee to execute it; and in such case, the Court will not permit the objects of the power to suffer by the negligence or conduct of the donee, but fastens upon the property a trust for their benefit." (Burrough v. Philcox, 5 My. & Cr. 92; [per Cottenham, C.].) "A bequest to A. or B. is void; but a bequest to A. or B. at the discretion of C. is good, for he may divide it between them. That is the case of this wiU .... The executors then having that discretion might say to whom the fund should be given, the parents or the children . But the Court has not that discretion, but has only to eay, what class are to take; and then the distribution must be equal." (Longmore v. Broom, 7 Ves. 128 ; [per Grant, M. E.].) A residuary gift does not operate as a gift in default of appointment so as to exclude the implied gift to the objects of the power {Re Brierley, 43 W. R. 36); nor does a gift over in default of objects of the power prevent the im- plied gift in their favour. {Butler v. Gray, L. E.. 5 Ch. 26.) Gift to A. or . Power to appoint to some objects " or " to others. — appoint! Mr. Hawkins observes: "The rule in Broum v. Higgs " is applicable, although the language of the power is "alternative. Thus if property be bequeathed to the SEVERAL SETS OF OBJECTS. 79 testator's brothers and sisters or their children in such shares and proportions and at such times as the trustees shall think fit, in default of appointment the property is divisible among all the children and their parents equally per capita. {Longmore v. Broom, 7 Ves. 128; Penny v. Turner, 2 PhiU. 493.) So if the gift be 'to such children of A. as B. shall think most deserving, or to the children of C {Brown v. Higgs, 8 Ves. 561); or if the gift be ' amongst my nephews and nieces or their children, either all to one of them or to as many of them as my surviving child shall think proper.' {Burrough V. Philcox, 5 My. & Cr. 73.)" If the power is to appoint to one only of a class it is ■difficult to see bow there can be an implied gift to the class. (Sugden on Powers, 8th ed. 593; Jarman on Wills, p. 653; and see Brown v. Higgs, supra — as to Lower SweU.) This difficulty was avoided in Sinnott v. Walsh (5 L. B.. Ir. 27), by holding the words "whatever exist- ing member of my family " to be nomen collectivum. Tenancy in common. — ^Mr. Hawkins continues: "It "seems that wherever the rule in Brown v. Higgs is " applied, the objects will take the property among tbem " as tenants in common, and not as joint tenants. This is " certainly the case if the power be to divide the property "'amongst' or 'between' the objects {Casterton v. "Sutherland, 9 Ves. 445): and in Ee White's Trusts " (Johns. 656), a gift to ' sucb other of my cbildren or their "issue' as A. should appoint, was held, in default of "appointment, to create a tenancy in common between "all the children and issue. In fact, any power which " enables the donee either to select objects, or to fix pro- " portions, seems to contain that reference to plurality "of interest among the objects which is sufficient to create "a tenancy in common." Several sets of objects. — " The rule has been applied to When several " cases where the power of appointment was among several objeots. " sets of objects entirely unconnected with each other. In 80 SEVERAL SETS OF OBJECTS. "these cases the distribution is, it seems, per stirpes, one "set of objects taking one half of the fund, and the other "set taking the remainder. "Thus in Doyley v. Attorney-General (4 Vin. Abr. " 485), where property was bequeathed to trustees, in trust "to dispose of it to such of the testator's relations of his " mother's side who were most deserving, in such manner "as they thought fit, and for such charitable uses and " purposes as they should also think most proper and con- "venient, the Court directed that one half of the estate "should go to the testator's relations on the mother's side, "and the other half to charitable uses. " So in Salushury v. Denton (3 K. & J. 529), where the " testator bequeathed property ' to be at the disposal of my " said wife to apply a part to such charitable endowment "for the benefit of the poor of Offley as she may prefer, " and the remainder to be at her disposal among my rela- "tions in such proportions as she may direct,' it was held " that the property was divisible in equal parts, one of such " parts to be for charitable purposes, and the other for the " only child of the testator absolutely. " Again in Fordyee y. Bridges (2 PhiU. 497), where the "testator gave his residuary personal estate to trustees, to " invest in the purchase of estates in England or Scotland, " such estates, if in England, to be settled upon one set of "trusts, and if in Scotland upon another set of trusts; it " was held that, the discretionary power having ceased to " exist, the unappointed fund was divisible into moieties, " one half to be invested in land in Scotland, and the other " half being payable to those entitled under the trusts "declared of the English estates. "In Down v. Worrall (1 My. & K. 561), where pro- "perty was left to trustees to settle either for charitable " purposes at their discretion or for the separate benefit of " the testator's sister and her children, the fund was held " (no settlement having been made) to be undisposed of; "but this case seems not to be consistent with Doyley v. " Attorney-General, and Salushury v. Denton, there being "no difference, as regards the application of the rule, SEVERAL SETS OF OBJECTS. 81 "between a bequest to A. or B. at the discretion of C, "and a bequest to A. and B. in such, proportions as C. "shall appoint. The rule applies equally to both cases." In Parwell on Powers, 2nd ed. p. 471, Doww v.Worrall is called " a very doubtful case." Mr. Hawkins continues — " In Re Eddowes (1 Dr. & Sm. 395), where the testator "by will bequeathed his real and personal estate equally " among his children, and by a codicil revoked the share of " one of his sons, and gave that share to trustees upon " trust at their discretion to apply the whole or such part "thereof for the benefit of his said son, or otherwise to "apply the whole or such part thereof in augmentation of "the shares of the other children: the power not having " been exercised, there was held to be an intestacy as to "the share in question. Sed qu. as to this case." Re Eddowes is treated as good law in Farwell on Powers, 2nd ed. p. 469. Mr. Hawkins continues — " The rule in Brown v. Higgs, however, does not apply " where there is a mere permission to give to certain objects, " as if property be given to a married woman for her sepa- "rate use, with power for her (if she chooses) to bequeath "it by will to her husband and children. (BrooJc v. "Brook, 3 Sm. &G. 280.)" For the rule to operate the power must be in the nature of a trust. (Re Weekes' Settlement, [1897] 1 Ch. 289, where the cases are examined by Homer, J. (a).) Mr. Hawkins continues — " In Little v. Neil (10 W E. 592, V.-C. K.), property "was vested in trustees, with a direction to apply the " income for the benefit of such one or more of the wife "and children of A. as the trustees should think fit, but " any provision made for the wife was to be in the shape of "an annuity for her separate use, determinable on the .life " of her husband; the power not having been exercised, it (a) Romer, J.,'s decision in. Se WeeJces' Settlement is severely criticised by Professor Gray in an article in Vol. 25 of the Harward Law Eeview. H. 6 82 OBJECTS WHEN ASCEETAINED. Partial ap- pointment : no clause of hotchpot in - serted. Period for ascertaining the objects. Gift to A. for life with a power of dis- position to relations. " was held that the fund was divisible equally among the "wife and children of A. the wife taking her share, not "in the form of an annuity, but absolutely." Power exercised in part. — " If the power has been par- "tially exercised, the rule in Brown v. Higgs applies, and " the unappointed part is divisible equally among the " objects of the power, without regard to the appointment. " (Maddison v. Andrew, 1 Ves. sen. 57; Fordyce v. "Bridges, 2 Phill. 513.)" Objects token ascertained. — " It would seem that the period for ascertaining the objects to take in default of appointment should be the time when the power ought to have been exercised. Thus in Longmore v. Broom (7 Ves. 124), where there was an immediate gift to the children of A. as B. should appoint, it was held that the fund vested at the testator's death, and that after- born children could not take. [Ee Phene's Trusts, L. R. 5 Eq. 346.J "So in Re White's Trusts (Johns. 656), where a sum of 2,500L was given to trustees in trust for the testator's son A . for life, with remainder to his children, ' but should A. die childless, I confide in the said trustees for applying the said sum of 2,5001. for the benefit of such other of my children or their issue, as they may think fit,' it was held that the children and issue of children living at the death of A., took the fund per capita, the trustees having died in the lifetime of A. " If the bequest be to A. for life, with a power of dis- position among the testator's relations by deed or will, and A. dies without exercising the power, it is settled that the class to take under the rule in Brown v. Higgs are those who would be the next of kin, according to the Statutes of Distribution, of the testator at the death of A., and not at the death of the testator (2 Sugd. Pow. 268, 271, 6th ed.), whether the power be on© of selec- tion (Harding v. Glyn, 1 Atk. 469), or of distribution (Pope v. Whitcombe, see Finch v. Hollingsworthj 21 B. 112). GAEVEY V. HIBBEET. 83 "If the power of appointment is not to arise until a Whentlie a ■ -1 1 ■ 111- power IS not given period, no objects can take, under the rule m to arise till a "Brown v. Higgs, who die before that period. Thus, gi^^n period. " if the gift be to A. for life, and after his decease to his "children, as he shall by ivill (only) appoint, children "dying in the lifetime of A. are excluded. (Walsh v. "Wallinger, 2 R. & My. 78; Kennedy v. Kingston, 2 "J. & W. 431.)" But it would be otherwise if the power were to appoint by deed or writing (Wilson v. Duguid, 24 Ch. D. 244; Re Walford, 55 Sol. J. 384), or if the gift is among a class in such shares as A. should by will appoint. (Lambert v. Thwaites, L. R. 2 Eq. 151.) Mr. Hawkins continues — " So where the testator devised his real estate to his wife "for life, and after her death directed that his brother "should divide the estate among his children as they " should attain twenty-one, and the children all died in the " Lifetime of the testator's widow, it was held that the " estate was in event undisposed of. (Half head v. Shep- "herd,7W. R. 480.)" GrAKVEY V. HlBBERT. "It is a convenient rule, to remedy mistakes in the " number of legatees intended by the testator, that — Rule. Where a gift to children describes them Ganei/ v. as consisting oi a specihed number, which is less Mistake in than the number in existence at the date of the *^^ number will, the Court rejects the specified number on children. the presumption of mistake, and all the children in existence at the date of the will are held entitled : unless it can be inferred who were the particular children intended. ( Garvey v. Hibbert, 19 Ves. 126 ; Lee v. Pain, 4 Hare, 249 (J).) (J) Mr. Hawkins' rule is quoted with, approval by Jessel, M. R., in Newman v. Fiercey (4 Ch. D. at p. 48, where it was held that children of a second marriage did not share) . 6(2) 84 MISTAKE IN NUMBEE OP LEGATEES. G-rand- cMldren, servants, &c. Thus if the bequest be of 1,000^. to the " three " children of A., and A. has at the date of the will four, five, or a larger number of children, all are held entitled. [Re Groom, [1897] 2 Ch. 407.] The rule is the same where the legacy is of a given amount to each child, as "to the three children of A. 100^. each," although the total amount of the gift is increased by the construc- tion adopted. {Garvey v. Hibhert, 19 Ves. 125; \_8pencer v. Ward, L. E. 9 Eq. 507].) The same rule applies to gifts to brothers or sisters {Lee v. Pain, 4 Hare, 249), grandchildren ( Wrightson v. Calvert, 1 Johns, & H. 250), servants (Sleech v. Thorington, 2 Ves. sen. 560; [and nieces {McKechnie v. Vaughan, L. E. 15 Eq. 289].) " The ground on which the Court has proceeded is, that it is a mere slip in expression: the meaning is, aU children, or all servants: and the Court conceiving the intention to be to give to each child so much, strikes out the specified number." {Garvey v. Hibbert, 19 Ves. 126; [per Grant, M. E.J.) Mr. Hawkins continues — " In Daniell v. Daniell (3 De G. & Sm. 337), the testa- " trix by will gave ' to the three children of A. 500Z. each,' "A. having then three children, and three only, as the "testatrix knew. The testatrix afterwards made three " other wiUs, repeating in each the above bequest in the "same words. A. had in the meantime other children " born, and at the date of the last will had nine children, of "the birth of each of whom the testatrix had been regu- "larly informed; it was held, however, that the evidence " was not sufficient to negative the claim of the six younger " children to share in the bequest, that the rule in Garvey "v. Hibbert appKed, and that each of the nine children " was entitled to a legacy of 5001. "Again, in Yeats v. Yeats (16 B. 170), where the THETFOED SCHOOL CASE. 85 " testator before making his will caused inquiry to be made "respecting the family of A., and was informed, as was " then the fact, that A. had seven children, and the testator " made his will, giving ' to each of the seven children now "living of A. an annuity of 401. each,' but in the mean- "time, and before the will was made, two more children "of A. had been born; it was held that the rule applied, " and that all the nine children were entitled to an annuity "of 401. each. " But the rule is of course excluded in a case where the " testator points out the particular children intended by an " additional description, as by adding, ' they live near Gr.,' " when only the specified number lived there. (Wriffhtsc^ "v. Calvert, 1 Johns. & H. 250.)" But the rule is not excluded by the fact that the testator knew the true number of children. (Daniell v. Daniell, 3 De G. & S. 337; Scott v. Fenoulhetf, 1 Cox, 79.) The rule does not apply to illegitimate children (Be Mayo, [1901] 1 Ch. 404); and a child en ventre is not in exist- ence for the purpose of the rule. (Se Emery's Estate, 3 Ch. D. 300.) The rule is applied in the converse case when the actual number of children is less than that specified in the wiH. {Be Sharp, [1908] 2 Ch. 190; Harrison v. Harrison, 1 R. & My. 71.) As to the admis- sibility of evidence, see Re Mayo ([1901] 1 Ch. 404). The rule is dealt with in Jarman on Wills, pp. 1706 et seq. Thetfoed School Case. Mr. Hawkins observes— " It not unfrequently happens that the rents of an estate " devised to charitable purposes greatly increase in amount " since the time of the devise, and that the will makes no " express provision for the employment of the surplus " rents. In such cases it is a rule that: — Rule. If sums amounting together to the whole Thetford rents of an estate, at the time of the devise, are given to charitable objects, the objects will take THETFOED SCHOOL CASE. Where the ■whole rents are given to charitable objects the increased rents go in the same proportions. the increased rents in the same proportions, unless an intention appear to the contrary. [Thetford School Case, 8 Co. Rep. 130 b; Attorney- General y. Johnson, Amb. 190 ; Mayor, Sfc. of Beverley v. Attorney -General, 6 H. L. C. 310; '[Attorney-General V. Wax Chandlers^ Company, L. R. 6 H. L. 1].) " In the Thetford School Case (8 Co. Rep. 130 b), land "to the value of 2>ol. a year was devised for the main- "tenance of a preacher, schoolmaster, and poor people in " Thetford: and by the will a special distinction was made, "how much the preacher, schoolmaster, and poor people "should have, amounting in the whole to 35L a year, " which was the value of the land at the time of the devise; " and afterwards the land increased to be of the value of " lOOL a year. It was held ' that the revenue of the lands " should be employed to increase the several stipends of " the persons appointed to be maintained by the devisor.' " " There are many cases which have decided, that where it appears on the will itself, what was the yearly value of the estates given to charitable purposes, and the testator has parcelled among the different charities the whole of that yearly rent or value so attributed to the property, any future increase of rents must go to charity. The Court seems to have said, that the testator has himself declared what constitutes the whole of the estate . . ; and from the circumstance of his knowing what was the then present value of the estate, and devoting it exclu- sively to charity, we have inferred an intention on his part, that the whole of the estate should be given to charitable purposes . The doctrine of these cases is neither more nor less than this: — a gift of the rents and profits of an estate is a gift of the estate itseK; such a devise as I have just mentioned is a gift of the rents and profits; it is there- fore a gift of the estate." {Per Lord Bldon, Attorneyl- General v. Skinners' Company, 2 Russ. 441.) "As far as I have read these ancient cases, they state it to depend upon the intention of the donor, and that WHERE WHOLE RENTS ARE NOT GIVEN. 87 one way of finding out the intention is, to inquire whether the whole of the annual value of the property was, at the time of the foundaition of the charity, distributed among the objects of the charity. If it was, they say that that circumstance is evidence of the donor's intention to give the whole of the increased value to the same objects." {Attorney-General v. Mayor of Bristol, 2 J. & W. 318; [per Lord Eldon, C.].) Mr. Hawkins continues — " The cases not coming within the rule in the Thetford ^'^"f? °°* "School Case will fall under two heads: rule. "First, where the sums given to the various charitable i- Where the 'objects do not exhaust the whole annual value of the are not given, 'lands at the time of the devise. (Attorney-General v. Attorney- Mayor of Bristol, 2 J. & W. 294.) If property be given Mayor of' ' to a corporate body, and certain annual sums are directed -S"**"'- ' to be paid thereout, which are less (by however small an ' amount) than the annual rents at the time of the devise, ' the rule does not apply, and the corporate body will in ' general be held to take the increased rents for their own ' benefit. "Thus, in Attorney -General v. Brazenose College (2 'CI. & F. 295), where the rent was at the time of the ' devise 66L 13s. Ad. a year by the foundation accounts, ' and the charges upon it amounted to 65Z. Zs. 4d. only, 'the increased rents were held to belong to the College. 'So, in Attorney-General v. Trin. Coll. Cambridge (24 ' B. 383), where the testator devised real estates which he ' described as ' of the yearly value of fourscore pounds or 'thereabouts,' to the College, and at the testator's death ' the rents exceeded the specific payments to be made 'thereout by 11. 6s. 8<^., the College was held entitled 'to the whole surplus rents. " But even though the whole rents are not distributed ' among the charitable objects, the will or other instru- ' ment may show an intention that they shall participate 'in the increased rents. As in Mercers' Company v. ' Attorney -General (2 Bligh, N. S. 165), where a rent of ' 150?. was given by deed upon trust, and the payments 88 APPLICATION CYPEES. "to be made amounted to 14:91. lis. only, the augmented " rents were held to belong to the charitable objects: there "being a direction that if the rents fell off, the various "charities should abate in proportion. General intention in favour of charity. Application cypres. 2. Where the whole rents are given, bnt not wholly to charitable objects. Beverley and South Molton Cases. General Charitable Intention. — "It is to be observed " that, where the w'hole rents of an estate are not speci- "fically appropriated, but the Court discovers upon the "will a general intention to devote the whole to charity, " the general charitable intention will be carried out by "the Court, and the whole of the increased as well as the " original rents will be appropriated by the Court of Chan- "cery to charity. {Arnold v. Attorney-General, Show. "P.C.22.)" " If a testator gives all his lands to charitable uses, and then mentions some but not so many as to exhaust the whole value of the land, yet the gift will carry all the rents and profits, in point of application, to charitable purposes." {Attorney-General v. Mayor of Bristol, 2 J. & W. 320.) So also, "if the testator has manifested a general intention to give to charityl, the failure of the particular mode in which the charity is to be eSectuated shall not destroy the charity: but, if the substantial intention is charity, the law will substitute another mode of devoting the property to charitable purposes, although the formal intention as to the mode cannot be accomplished." {Moggridge v. Thackwell, 7 Ves. 69 ; [per Lord Eldon, C.].) Mr. Hawkins continues — " Secondly, the rule in the Thetford School Case does not "apply, where the whole rents at the time of the devise " are disposed of by the wiU, but part only of the rents is "given to charitable objects, and the remaining part, "under the name of surplus or overplus, is given to a " corporate body, or some other object not charitable. In " such cases the charitable objects have no claim to absorb "the whole of the increased rents, and the corporate body " or other person to whom the surplus rents are given will GENERAL CHARITABLE INTENTION. "in general be entitled, after making the specified pay- " ments to the charitable objects, to take the whole of the "increased rents. {Mayor, dc, of South Moltan v. " Attorney-General, 6 H. L. C. 1; Mayor, dc, of Bever- "ley V. Attorney-General, 6 H. L. C. 310.) " It may however be a question in such cases, whether " there is to b© a proportionate augmentation of the sums " devoted to charitable purposes: but such a proportionate " distribution of the increased rents wiU not, it appears, be " made without a special intention appearing to that effect. {Attorney-General v. Skinners' Company, 2 Russ. 438, " 443.) However, where the testator directed lands of the "value of 1001. a year to be purchased, and gave 961. to " charity, and gave ' the residue of the said sum, being "4Z. yearly,' to the Drape;.'s' Company for their pains, it " was held that all the objects were entitled rateably to the "increased rents. {Attorney-General v. Drapers' Com- "pany,4:~B.67.)" 89 90 CHAPTER VII. CHILDREN, ETC., WHEN ASCERTAINED. Mr. Hawkins observes — " It might be supposed that a gift to the children of a "person simpliciter, would include all the children he "might have, whenever coming into existence: but the "testator is considered to intend the objects of his bounty " to be ascertained at as early a period as possible (a); and " it may be laid down as a general rule (qualified by the " other rules which follow in this chapter) that, Gifts to Children, dc, as a Class. Gift to Rule. A devise or bequest to the children of A., children, &o., •-i.itmi means, primd OT 01 the tostator, means, prima facie ^ the children m existence at «w existence at the testator's death: provided there deatMf there ^^^ such children then in existence. ( Viner v. are such. Fruucis, 2 Cox, 190; 3Jann v. Thompson, Kay, 638.) The rule is the same whether the gift be of an aggregate fund to the class, as, 1,000/. to the children of A., or of a certain sum to each member of the class, as, to the children of A. 100/. each. [Mann v. Thompson, Kay, 638.) The rule extends to gifts to grandchildren, issue, brothers, nephews, cousins. [Lee v. Lee, 1 Dr. & Sm. 73 (b); Baldwin v. Borers, 3 D. M. Gr. 649 ; [Biniond v. Bosiock, L. R. 10 Ch. 358].) {a) See L. E. 7 Ch. p. 668 (Ed.). {b) Je«T.ie«, which is reported at p. 86 of 1 Dr. &Sni., is not a very strong authority for this proposition, but, in Baldwin v. Mogers, Knight Bruce, L. J., said : " I do not see by what we are to be guided, if in the case of a gift to a class of relations, that which is held a wise rule with regard to one grade of relationship is not to be eo held with regard to another." The rule is clearly established (Ed.). GIFTS TO CHILDREN AS A CLASS. ^1 Mr. Hawkins' statement of the rule is quoted with approval by Kekewioh, J., in Ee Powell ([1898] 1 Oh. at p. 230). Mr. Hawkins observes — "A gift to all the children, or to 'all and every' the Gift to "all "children of a person, is, for the purpose of this and the children, "the following rules, equivalent to a gift to children " simpliciter; the words 'all and every' not being con- " sidered as emphatic. [Scott v. Harwood, 5 Madd. 332.] " The rule applies where the gift is to and for the benefit " of A. and his children jointly. (De Witte V. De Witte, "11 Sim. 41.) " The rule applies to gifts by way of appointment. "(Harvey v. Stracey, 1 Drew. 73.)" It has been held that the rule applies to gifts of income (Re Powell, [1898] 1 Ch. 227, distinguishing Be Wen- moth's Estate, 37 Ch. D. 266). AcDditional 'description. — Mr. Hawkins continues — Additional " The rule applies, although the class of children entitled does not ex- "may be further limited by an additional description, elude the rule. " Thus, if the gift be ' to all the present horn children "of A.' (Leigh v. Leigh, 17 B. 605), or to the children " of the late A., a person dead at the date of the will, those " children only who answer the description and who after- " wards survive the testator take the whole fund. [Dimond V. Bostock, L.E. 10 Ch. 358.] " So if the gift be to A. for life, and after his decease to "all and every his children living at his decease, and A. " dies in the testator's lifetime, the rule applies, and those "children of A. who survive the testator take the whole "fund. (Lee v. Pain, 4 Hare, 250.) " Again, if the gift be to such of the children of A. as "shall attain 21 the sum of £100 each (Mann v. Thomp- " son, Kay, 638), and none have attained 21 at the death "of the testator, those only who were in existence at the "testator's death and who afterwards attain 21 will be "entitled. "So if there be an immediate bequest to such of the Gift to such children of A. 92 WOEDS OF FUTURITY. as B. shall appoint. B. can appoint only to chil- dren living' at testator's death, there being sneh. " children of A. as B. shall appoint, and there are children " in existence at the testator's death, the power of appoint- " ment is confined to children then in existence. (Paul v. "Compton, 8 Ves. 375.) Exceptions. — "If the description is such as to make " the gift not one to a class, but to particular persons indi- " vidually, the rule of course does not apply. As if the gift " be ' to the children of A., namely, B., C, and D.' (Bain "v. Lescher, 11 Sim. 397), or 'to the brothers and sister " of A.,' A. having several brothers and only one sister at "the date of the wiU. (Havergal v. Harrison, 7 B. 49.) "In this case the share of an object predeceasing the "testator vifill lapse. " And children born after the testator's death may be " admitted under a gift to children as a class, if the inten- "tion clearly appear. Thus where the gift was 'to all "grandchildren now born or hereafter to be horn during " the lifetime of their respective parents,' afterborn objects "were admitted. (Scott v. Lord Scarborough, 1 B. 154.) " The rule, however, is not departed from on slight "grounds of inference. Thus, in Scott v. Hartvood (5 "Madd. 332), the testator devised his real estate to 'all "and every the children of A.,' with a gift over in case '"the said children' should die under 21, and directed "the rents to be accumulated till the children should "attain 21, and divided among such as should attain 21: " and the testator gave his residuary personal estate to the "children of A., payable at 21. Notwithstanding thati " children born after the testator's death were thus entitled "to share in the personal estate, and the correspondence " between the two gifts, it was held that the devise of the "real estate was confined to child en living at the death of "the testator. Children bom Wo^ds of Futurity . — "If words importing futurity be and to be ,< i i i 11 ■« 1 ■« ^ 1 1 -i , born;-Hrhether added to the bequest, as if the giit be to the children ^drenare " ' bom and to be born,' 'begotten and to be begotten,' included in. "'which A. has or shall have,' it is a question whether IF NO CHILDREN AT TESTATOE's DEATH. 93 " the additional words have the effect of letting in children " born after the testator's death to share in the gift. Where " the gift is not immediate, it is settled that the addition of "such words does not alter the construction (Scott v. Lord "Scarborough^ 1 B. 154 (c); Whitbread v. Lord St. "John, 10 Ves. 152 (d)); and it would appear that in "the case of an immediate gift also they will generally " be considered as intended only to provide for the case " of children coming into existence between the date of "the win and the testator's death. ' If there is a bequest "to the children of A., begotten and to be begotten, it " has been generally held that the words " to be begotten " "show only that the testator contemplated children to be "born after the date of his wiU and before his death.' " (Butler V. Lowe, 10 Sim. 325.) The authorities for "this construction aTeSpracklingv. Banier (1 Dick, 344), "Butler V. Lowe, (10 Sim. 325), Starrs v. Benbow (2 "My. & K. 46), and dicta in Mann v. Thompson (Kay, "643). On the other hand, in Defflis v. Goldschmidt " (1 Mer. 417), a gift to ' aU the children of A. whether " now born or hereafter to be born,' and in Mogg v. Mogg " (1 Mer. 654) a devise of real estate in trust to pay the " rents for the maintenance of children begotten and to be "begotten, were held to let in all afterborn children: and "a similar construction was adopted in Gooch v. Gooch " (14 B. 565, see pp. 576, 577), and approved of, see " 3 D . M. G. 380, 394. The point is perhaps not entirely "settled." The point does not yet appear to be settled; it is dis- cussed in Jarman on Wills, pp. 1694 et seq. In Dias V. De Livera (5 A. C 123) the Judicial Committee of the Privy Council seem to prefer the former construction to that laid down in Mogg v. Mogg (see 5 A. C. at p. 135). If no Children at Testator's Death. — Mr. Hawkins con- l^ ^o '^^^^ at tinues: — " If there are no objects in existence at the death death, all afterborn ~~~ children may (c) Seepost, p. 97 (Ee.). [d) Seepost, p. 102 (Ed.). ^^^^' 94 GIFT TO CHILDREN IN REMAINDER. ' of the testator or period of distribution, the rule has no 'application, and all children whenever born may be ■'included, unless an intention appear to the contrary. ' (Harris v. Lloyd, T. & R. 310.) Thus, if the bequest 'be to trustees in trust to invest, and stand possessed in "trust for the children of A., share and share alike, and ■'A. is living- but has no children at the testator's death, ■'afterborn children will take, and the interest tiU the "birth of a child falls into the residue. (Ibid.)" And in the case of a devise of real estate the rents until the birth of a cshild would go to the heir or residuary devisee (Re Movulemj L. E. 18 Eq. 9), but a gift of a residue of personalty would, apparently, carry the inter- mediate income. The children for the time being in ex- istence take the whole income. (Shepherd v. Ingram, Amb. 448.) The question of the destination of the income in these cases is discussed in Jarman on Wills, pp. 1688 et seq. "But," continues Mr. Hawkins, "if the property be "given over in the event of there being no child in ex- "istence when by the terms of the will it should vest in "possession (Godfrey v. Davis^ 6 Ves. 43), or if the "devise be a legal contingent remainder which fails by "the determination of the particular estate before the "birth of a child (e), afterborn children will of course "be excluded." Gift of Aggregate Fun'd to Children, dc, as a Class m Remainder. Mr. Hawkins observes — "Notwithstanding the preceding rule, 'the general "wish of the Court is, if it can, to include all children " coming in esse before a determinate share becomes dis- "tributable to any one.' (2 Madd. 129.) Consequently, "where the total amount of the gift is not dependent "on the number of children admitted, it is the rule that — («) In oases within the Contingent Remainders Act, 1877, the re- mainder could take effect as if it were an executory limitation (Ed.). PERIOD OF DISTKIBUTION. 96 Rule. A devise or bequest of a corpus or aiftofaggre- ,pi I'll 1 Til S^ts iand to aggregate tuna to children as a class, where the children, &c., gift is not immediate, vests in all the children in when notW existence at the death of the testator, but so as to dudefaii"'' open and let in children subsequently coming ^"^r'e^the^"'^ into existence before the period of distribution, period of dis- ^ , tribution. [Devisme v. Mello, 1 Bro. C. C 537 ; Browne v. Hammond, Johns. 212, n. (a); \_Re Dawes' Trusts, 4 Ch. D. 210].) Thus if real or personal estate be given to A. a. for life, for life, and after his decease to the children of decease to the B., all the children in existence at the testator's cMidrenbom death take vested interests, subject to be partially thi^adnitted divested in favour of children subsequently coming into existence during the life of A. So if the gift be to the children of A., to be distributed among them at the end of twenty years from the testator's death, the children living at the testator's death take vested interests, subject to open and let in children coming in esse during the twenty years. {Oppenheim v. Henry, 10 Hare, 441 ; [Watson v. Young, 28 Ch. D. 436].) The rule extends to gifts to grandchildren, issue, brothers, nephews, cousins. [Baldwin v. Rogers, 3 D. M. G. 649 ; [see p. 656].) " Thus the objects among ■whom the fund becomes ulti- " mately distributable are the children who may be living " at the period of distribution, and the representatives of "such as may have died before that period, having sur- "vived the testator. " It has been already stated that a gift to ' all and every ' " the children, &c., is equivalent to a gift to children sim- '' pliciter, a,nd does not let in objects born after the period " of distribution. 96 SEPARATE LEGACIES. Where prior estate ceases on bank- ruptcy ; or re- marriage. " The rule applies where the gift is to A. for life, with "remainder to B. and C. and their children (jointly). " (Cooke V. Bowen, 4 Y. & C. 244.)" Where the prior estate is to be determined by' bankruptcy or some other event prima facie the class will be deter- mined at the date of the bankruptcy (fie Smithj 2 J. & H. 594; Be Aylwin's TrusUi L. E. 16 Eq. at p. 590; see also Be Master's Settlement^ [1911] 1 Ch. 321); but where there is a life interest to A. and a gift to his chil- dren on his death, with a proviso that A.'s interest shall cease on bankruptcy, it seems that notwithstanding the bankruptcy of A. the class is not determined until his death. (Be Bedson's Trusts, 28 Ch. D. 523; Blackman V. Fysh, [1892] 3 Ch. 209.) If the prior gift is during widowhood it seems that the class is ascertained on the remarriage of the widow. (Stanford v. Stanford, 34 Ch. D. 362.) Powers. Gift in re- mainder to such children of B. as A. shall appoint. Gift in re- mainder under power to the children of C. Powers of Appointment. — Mr. Hawkins continues — " The rule applies to gifts in the nature of powers, and "to gifts in exercise of powers of appointment. " Thus, if the bequest be to A. for life, and after his " decease to such of the children of B. as A. shall appoint, "A. can only appoint to children born in his lifetime, "provided there are such. (Paul v. Compton, 8 Ves. "375.) "Again, if property be settled on A. for life, and after "his decease in trust for such persons as B. shall appoint, "and B. by will appoints the property after the death "of A. to aU and every the children of C, and B. dies "in the lifetime of A., the objects to take under the ap- "pointment wiU be the children of C. w'ho may be living "at the death of B., and those who may subsequently "come into existence during the lifetime of A. (Harvey "v. Stracey, 1 Drew. 73.) Legacy of a Separate Legacies. — "The rule which admits objects to^a^Aof°the " I'orn after the testator's death and before the period of children of A. "distribution to share in the bequest, only applies where WORDS OF FUTURITY. 97 'the total amount of the gift is independent of the at a future 'number of objects among whom it is to be divided, and ohUdreubom 'is therefore not increased by the construction adopted, after tenta- , _ . •^ J^ tor s death. Isut a gilt of a certain sum to each of a class of objects and before 'at a future period is confined to those living at the d^stributi\)nf 'testator's death. Thus whereas, under a gift of 500L excluded, 'to aU and every the children of A., payable at 21, 'children born after the testator's death and before the ' eldest child attains 21 are included (see post), if the gift be of 50Z. each to all and every the children of A. 'payable at 21, the children living at the testator's death ' alone are entitled. (Bingrose v. Bramham, 2 Cox, 384; 'Mann V. Thompson, Kay, 638.) The reason given is, 'that in the latter case, if afterborn children were ad- ' mitted, the distribution of the personal estate of the ' testator would have to be postponed till it could be ascer- 'tained how many legacies of the given aimO'Unt would ' be paylable (/) . Words of Futurity, dc. — "Children or other objects "born after the period of distribution may of course be " included by the eSect of express words, as if the bequest " to take effect at a future period, be to ' all children born " or who shall hereafter be born during the lifetime of " their respective parents.' (Scott v. Lord Scarborough, "1 Bea. 154.) " But it is settled that words importing futurity, as if Words of "the gift be to 'children born or to be born,' 'begotten not^t\f° " or to be begotten,' &o., do not extend the gift to objects objects born "born after the period of distribution. (Scott v. Lord period of dis- " Scarborough^ 1 B. 154.) In that case it was said t^^i^tioii- "(p. 168), if "the testator has expressed himself in terms which show that he contemplated a division of the fund at the end of twenty years from his death : and if he had described the objects to be his grandchildren, . . or all such grandchildren born or to be born as many {/) This paragraph is cited with approval by Jessel, M. E., in Sogers T. Mutch, 10 Ch. D. at p. 27- H. 7 98 REVERSIONARY INTERESTS. as there may be, it would, I think, have followed from' the cases which were cited, that the fund would have vested in and become divisible amting the grandchildren answering- the description who were living at the end of the term of twenty years; the generality of the ex- pression ' all my grandchildren,' or ' all my grand- children born and to be born ' being by construction, and, as it is said, for convenience, limited to the time of distribution, and the words applying to afterborn children being satisfied by giving the benefit of the bequest to those born after the testator's death and before the period of distribution. But here the gift is to all the grandchildren answering the description, who are 'now born or who shall hereafter be born during the lifetime of their respective parents;' and the grand- children who may be born after the end of twenty years cannot be excluded without striking these words out of the wm." [Per Lord Langdale, M. E.J Gift of a re- Tersionary interest lets in objects bom before it falls into But not an immediate gift of a fvmd, part only of Reversionm-y Interests. — Mr. Hawkins continues: " The rule which admits objects born after the testa- " tor's death but before the period of distribution, "where the gift is not immediate, applies not only to "the case where the period of distribution is post- "poned until the expiration of a life estate created "by the testator himself, but to the case where he has " only a reversionary interest expectant upon a life estate "previously subsisting, ^nd then disposes of the fund "to take effect after the death of the tenant for life. " (Walker v. Shore^ 15 Ves. 122; Harvey v. Straceyy "1 Drew. 123.) 'I think the distinction too thin, that "the interest for life is not the gift of the testator him- "self.' (Per Lord Eldon, 15 Ves. 125.) And it does "not seem to be necessary that the bequest should ex- "pressly refer to the period of determination of the "previously existing interest. " But i£ there be an immediate bequest of an aglgregate "fund, and part of the fund consists of reversions or " expectancies, or from any other cause is not immedi- GIFT TO CHILDEEN AT GIVEN AGE. 99 "ately distributable, this does not entitle objects born, wMohis " before sucK portion of the fund actually falls into pos- " session to share in it. (Hill v. Chapman^ 3 Bro. C. C. "391; Hagger v. Payne, 23 B. 474.) "A residue may include reversions or expectancies which may come in hereafter, but this Court does not make separate '.and distinct classes as each part of the residue comes in, but when once the residue in general becomes distri- butable, the rights are to be then ascertained and the class determined." (Hagger -v. Payne,- 23 B. 479; [per E-omilly, M.E.J.) "Thus," continues Mr. Hawkins, "if the testator bequeaths a particular fund to A. "for life, and after his decease directs that it shall "fall into the residue, and gives the residue of his estate "to the children of A., children born after the testator's "death will not be admitted to share in the fund given "to A. forlif'e. " So the fact that payment of legacies is by law post- "poned for a year ftom the testator's death, does not "enlarge the class of objects. (lb.) " If lands be devised to trustees for a term of years, and, " subject to the term, to the children of A., the devise to " the class is immediate, and children born after the testa- " tor's death are not admitted. (Singleton v. Gilbert, "1 Cox, 68.)" Possibly the result may be different if it is indicated that the reversionary interests are to be treated separately from the other part of the fund. (King v. Cullen, 2 DeG. &S.252.) Gift to Children at a Given Age. Mr. Hawkins observes — " In the cases considered under the preceding rule, the " shares of all the objects became payable at the same time, " and the period of distribution was th© same for them all: " where the shares become payable at different times, as in " the ordinary case of a gift to children at 21 or marriage, 7(2) 100 GIFT TO CHILDREN AT GIVEN AGE. "the last rule requires to be supplemented by another, "viz. that — GHt to ohii- EuLE. Where there is a bequest of an aggregate given age : fund to children as a class, and the share of each tributionk''" child is made payable on attaining a given age, firat^^UcT'^™ or marriage, the period of distribution is the time becomes when the first child becomes entitled to receive entitled. . . . his share, and children coming into existence after that period are excluded. [Andrews v. Part- ington, 3 Bro. C. C. 401 ; Whitbread v. Lord St. John, 10 Ves. 152; [Picken v. Matthews, 10 Ch. D. 264].) Mr. Hawkins' statement of the rule and introductory observation are quoted with approval by Kekewich, J., in Re Powell, [1898] 1 Ch. at p. 230. " I have always taken the rule to be as it is stated by Mr. Jarman, that where a legacy is given to the children, or all the children, of A., to be payable at the age of 21, or to Z. for life, and after his decease, to the children of A., to be payable at 21 ; and it happens that any child in the former case at the death of the testator, and in the latter at the death of Z., has attained 21, so that his or her share would be immediately payable, no subsequently born child will take: and for this reason, viz. that the child who has attained 21 cannot be kept waiting for his share; and if you have once paid it to him, you cannot get it back." {Gillman v. Daunt, 3 K. & J. 48. [Per Page Wood, V.-C; Be Emmet's Estate, 13 Ch. D. 484.]) Mr. Hawkins observes — " The rule applies to gifts to grandchildren (Iredell v. "Iredell, 25 B. 485; [Gimllett v. Purton, L.E. 12 Eq. " 427]); and, it would seem, to all classes of relatives em- " braced in the preceding rules. [Be Gardiner's Estate, "20 Eq. 647 {g).] (g) As regards the chOd en ventre, this decision is wrong. (Jarman on Wills, p. 1703, note (k) ; Theobald on "Wills, 7th ed. p. 297 ; Re Sallett, [1892] W. N. 148 ; see post, p. 104.) (Ed.) JUN \^ GIFT TO CHILDEEN AT GIVEN AGE. \\ \ 1913 / ■ The rule applies equally, whether the vesting ortagb^^ss^ "payment only be postponed to the given age: e.g., "whether the gift be to 'such children of A. as shall "attain 21,' or 'to the children of A. payable at 21,' or " 'when or as they shall attain 21.' (Gillman v. Daunt, "3K. & J.48.) " This rule, like the preceding one, applies where the "gift is to 'all and every the children.' And it applies " only where the gift is of an aggregate fund, and not to " bequests of a certain amount to each of the children " of a person at a given age — in which case, as already "stated, only those in existence at the testator's death are "entitled. " The rule appears to apply to all cases where the share Gift to chil- "of each child is made payable on an event personal to atTi^oJ^ "him or her. Thus, if the fund be given to the children on death 11 n A 11 i> 1 -1 . • nt under that of A., the share of each to be paid on attaining 21, or on age leaving " death under that age leaving issue, and a child dies under ^^^"®' "21 leaving issue, before any child has attained 21, no "afterborn child can take. (Barrington v. Tristram, 6 "Ves. 345.) " If the gift be in remainder after a life interest, as a " bequest to A. for life and after his decease to the children " of B. payable at 21, the period of distribution is the later " of the two events to which payment is postponed: thus, "if a child attains 21 in the lifetime of A., children born "afterwards in A.'s lifetime are admissible; and if at "the death of A. no child has attained 21, children born "after A.'s death before the first child attains 21 are " admissible." In Be Wenmoth's Estate (37 Ch. D. 266), Chitty, J., Does the rule decided that the rule does not apply to gifts of income; but oFmcome^?**^ see Buckley, J.'s comments on this case in Re Stephens, ([1904] 1 Ch. atp. 330). A direction to accumulate may postpone the period when the class is to be ascertained until the end of the period for accumulation. (Re Stephens, [1904] 1 Ch. 322.) 102 GIFT WHEN YOUNGEST ATTAINS 21. Words of futurity do not exclude the rule. Gift to grand- children of a living person at 25. Words of Futurity, dc. — Mr. Hawkins continues: " It 'is settled that the addition of words of futurity does 'not prevent the application of the rule, so as to let in 'children born after the first share has become payable. 'As if the gift be to 'the children of A. born or to be 'born, as many as there may be' (Whitbread v. Lord 'St. John, 10 Ves. 152); or, 'to all my grandchildren 'whether born in my lifetime or after my death.' (Zre- 'dellv. Iredell, 25 B. 485.) " But the rule may be excluded by inference from the ' context. Thus, where a bequest to all the testator's 'grandchildren who should attain 21 was followed by ' a power of advancement and maintenance to take effect ' ' whether such grandchildren shall or not have attained 'the age of 21,' and notwithstanding the liability of a ' ' subsequent addition to the class entitled,' it was held ' that the rule was excluded, and that grandchildren born 'after the eldest had attained 21 were entitled to shares. ' (Iredell'v. Iredell, 25 B. 485 [followed inEe Courtenay, 74 L. J.Ch. 654].) "Where the bequest Was to A. for life, and after his "decease to the grandchildren of B. payable at the age "of 25, it was held that the class of grandchildren to "take was limited to those born in the lifetime of A. " (Kevern v. Williams, 5 Sim. 171.) Sed qu." On the question whether Kevern v. Williams was correctly decided, see Gray on Perpetuities, §§ 638 etseq., and Jarman ,on Wills, p. 1679, note (n), by Mr. Sweet. Possibly a direction to accumulate interest may cause the shares to be Vested at the testator's death. {Elliott v. Elliott, 12 Sim. 276; Be Coppavd's Estate, 35 Ch. D. 350; Re Mermn, [1891] 3 Ch. at p. 200; Be Barker, 92 L.T. 831.) Gift to chil- dren on the youngest attaining 21 ; all afterbom children admitted. Gift to Children when the Youngest attains 21. — Mr. Hawkins continues: "The rule is not extended to the " case of a gift to children when the shares are made pay- "able on the youngest attaining a given age, so as to "exclude children born after the youngest for the time RULES COMPARED. 103 "being lias attained that age. (Mairtwaring v. Beevor, "8 Hare, 44.) ,The idistribution of the eldest child's "share being postponed beyond the time when he him- " self attains the given age, 'all the inconvenience is let "in, and the eldest may have to wait for an indefinite "time, so long as children may continue to be born.' " (lb.) All chil'dren, whenever born, are therefore ad- " mitted in general, when the payment is postponed till "the happening of an event personal to the youngest. " But the contest may of course show, in a particular " case, that the testator meant the distribution of the fund "to take place when the youngest for the time being in "esse should attain a given age; as if he speaks of the "youngest child attaining 21 in the lifetime of the parent : "and in such case children born after the period of dis- "tribution thus pointed out will be excluded. {Gooch "v. Gooch^ 3 B.M.G. 366.) " Where the interest of a fund was to be applied for the Gift to oMl- " education of all the children, and ' on their attaining21,' "their"' at- "the whole was to be sold and divided equally among taimug2i. "them, the words were held to mean 'on their all "attaining 21,' and all afterborn children were admitted. " {Armitage v. Williams, 27 B. 346.) Mules exemplified. — " It will be evident that, under Examples, "the preceding rules, a slight difference in the form of "gift will materially affect the number of children en- " titled to share in it. Thus — " (1.) Let the bequest be of 1,000^. to all and every the " children of A., with a gift over of the shares of children "dying under 21 to the survivors. This bequest will in- " elude only children in existence at the testator's death. " {Davidson v. Dallas, 14 Ves. 576.) " (2.) Let the bequest be of 1,000Z. to all and every the "children of A. who shall attain 21. This bequest will "include not only the children living at the testator's "death, but all who may subsequently come into exist- " ence before the first child attains 21 . 104 CHILDREN EN VENTRE. " (3.) Let the bequest be, to all and every the children "of A. who shall attain 21, IQOl. each. This bequest "will include only children in existence at the testator's "death. Children en Ventre. " In the preceding rules for ascertaining the class of "children to take under a bequest, a child en ventre at "any period, and born in due time afterwards, is con- "sidered as in existence at that period, and is included in "the class as if actually born. 'It seems now settled, "that an infant en ventre sa mere shall be considered, " generally speaking, as born for all purposes for his own " benefit.' (Doe v. ClarJce, 2 H. Bl. 401.) It is further " established ,that — Children «« RuLE. A devise Or bequest to children '■'■horn'''' ventre con- ^ ... Bideredas or to children '■'■living'''' at a given period, includes born. a child en ventre at that period, and born after- wards. {Doe V. Clarke, 2 H. Bl. 399 ; Trower v. Butts, 1 S. & Stu. 181.) " It is now fuUy settled, that a child en ventre sa mere is within the intention of a gift to children living at the death of a testator; not because such a child (and espe- cially in the early stages of conception) can strictly be considered as answering the description of a child living; but because the potential existence of such a child places it plainly within the reason and motive of the gift. " Upon the whole, I am of opinion that, inasmuch as it is adopted as a rule of construction, that a child en ventre sa mere is within the intention of a gift to children living at the death of a testator, because plainly within the reason and motive of the gift; so a child en ventre sa mere is to be considered within the intention of a gift to children born in the lifetime of a testator, because it is equally within the reason and motive of the gift." CHILDREN EN VENTRE, 105 (Trowerv. Butts, 1 S. & Stu. 181. [Per Leach, V.-C, at p. 184.]) Where the word is "born" this rule of construction is Kmited to cases where such construction is necessary for the benefit of the unborn child. {Blasson v. Blasson, 2 D. J. & S. 665; ViUar v. Gilbey, [1907] A. C. 139.) The child must be legitimately begotten before the period. (Re CorlasSi 1 Ch. D. 460.) 106 CHAPTER VIII. CHILDREN, ETC., DEFINITIONS OF. Legitimacy. Mk. Hawkins observes — " It is a strongly established rule of construction, aided " by the policy of the law, that — Children, &c. RuLE. A gift to children means legitimate means legiti- i -t i i i • p ^ mate children, cnildren Only, unless it appears, irom the context or from circumstances, that illegitimate children must have been intended. {Wilkinson v. Adam, 1 V. & B. 422.) The same rule applies to gifts to sons, issue, and terms of relationship generally, {lb.) " The rule cannot be stated too broadly, that the description 'child,' 'son,' 'issue,' &o., every word of that species, must be taken prima facie to mean legitimate child, son, or issue; but the true question here is, whether it appears by what we call sufficient description or necessary implication, that the testator did mean these illegitimate children. " The question therefore comes round to this; whether upon the contents of this will it is possible to say he could mean, at the time of making that will, any but illegitimate children." {Fer Lord Eldon, Wilkinson v. Adam^, 1 V. & B. 462, 468.) Mr. Hawkins continues — "Legitimacy is a question not of reputation, but of "fact; and, therefore, a child afterwards discovered to be ILLEGITIMATE CHILDREN. 107 " illegitimate, cannot share in a gift to children, although "the child may have passed as legitimate at the date of "the wiU." There is, however, some authoritjy for the view that where the testator makes a gift to the children of another person whom he believes to be legitimate but who are in fact not so, such illegitimate children take. (Holt V. Sindrey, L. R. 7 Eq. 170; Be Du Bochet, [1901] 2 Ch. 441.) Mr. Hawkins continues — "And it is clear, as a general rule, that a gift to the 'children of A., who has illegitimate children, but no ' legitimate children, at the date of the wiU, does not let 'in the illegitimate children; inasmuch as A. may after- ' wards marry and have legitimate children. " Nor does a gift to the children of a particular man by 'a particular woman, who at the date of the will are ' cohabiting but not married, and have illegitimate ohil- ''dren, let in such illegitimate children; inasmuch as the ' persons in question may afterwards marry and have 'legitimate children. (Kenebel v. Scrafton, 2 East, '530.) " The case is the same if the gift be to the children of ' the testator, or to his children by a particular woman ' (ib.) (a)." "We may conjecture that he meant ille- gitimate children, if he did not marry; yet notwith- standing that may be conjectured, the opinion of the Court was, as mine is, that where an unmarried man, describing an unmarried woman as dearly beloved by him, does no more than making a provision for her and children, he must be considered as intending legitimate children." (Per Lord Eldon, 1 V. & B. 465.) So if a married man has only illegitimate children at the date of his will a bequest to his children does not mean his illegitimate children. (Dorin v. Dorin,- L.K. 7H.L. 568.) (a) &eepost, p. 112, as to the effect of sect. 18 of the "Wills Act (Ed.). 108 GIFT TO CHILDEEN OF DECEASED PERSON. Exceptions. Gifts to chil- dren of a deoeaeed per- son who has left illegiti- mate children only. Exceptions. — ^Mr. Hawkins continues: "The excep- "tions to the rule will fall under two heads: — " (1 .) Where the gift is to the children of a person dead "at the date of the mil. If the gift be to the children "of A., a person dead at the date of the will, and there "are living at the date of the will illegitimate children "of A., but no legitimate children, and the facts as to "the family of A. and his death were known, or can be "presumed to have been known, to the testator, it is "necessarily to be inferred that, under the word 'chil- "dren," the illegitimate children of A. were intended, "and they will take under the bequest. {Lord Wood- "houselee v. Dalrymple, 2 Mer. 419; Gill v. Shelley^ "2E. &My. 336.) "It is not essential that the gift should be to the ohil- "dren of a person described as dead, if the fact of his "death was presumably known to the testator. "In Re Herbert's Trusts (1 Jo. & H. 121), knowledge " on the part of the testator was inferred from his having " been intimate with a brother of the deceased; but it was " said that knowledge of the state of the family of a rela- "tion of the degree of first cousin once removed, will "not in general be presumed. "A gift to the children of a married woman 49 years " old, who has illegitimate Children only, does not admit "them (Be OverhilVs Trust, 1 Sm. & G. 362); but "qu. whether if the woman were known by the testator "to be of very advanced age, as seventy, the illegitimate " children would not be admitted by necessary inference." Mr. Hawkins' view is now established by Be Eve, ([1909] 1 Ch. 796, woman aged 67 at the date of the will), and Faul v. Children (L.R. 12 Eq. 16, woman aged 57 at date of last codicil) . Gift to chil- dren of a deceased per- son who has left but one legitimate child. Gift to " children" there being but one legitimate child. — Mr. Hawkins continues: "And if the gift be to the " children of the deceased person (in the plural number), " when he has left only one legitimate child, and one or " more illegitimate children, living at the date of the will GIFT TO CHILDEEN WHERE ONE LEGITIMATE CHILD. 109 " — knowledge of these facts on the part of the testator " being proved or inferred — inasmuch as the words im- " plying plurality of objects cannot be satisfied withouti " extending the word children to the illegitimate object " or objects, the illegitimate child or children may take " under the gift together with the legitimate child. {Gill "v. Shelley i^ 2 E. & My. 336; Leigli v. Byron, 1 Sm. "& G. 486.) " So where the gift was to the children of the testator's " nephews and nieces, and the testator had, at the date of " the wiU, one legitimate nephew only, and had no brother " or sister then living, the children of an illegitimate " nephew were admitted to share in the bequest. (Tugwell "v. Scott, 24 B. 141.) " But it is essential that the testator should be presumed "cognizant of the facts. In Hart v. Durand (3 Anstr. " 684, see Gill v. Shelley, 2 R. & My. 342) the gift was " ' to every of the sons and daughters of my late cousin "A.'; and that cousin having left only one legitimate " daughter, and only two illegitimate children, a son and a "daughter, it was held that the expression in the will " manifested that the testator was ignorant of the actual "state of A.'s family, and the illegitimate children were "not admitted. " Where the gift was to the daughters of A., who had "died, leaving two illegitimate daughters, one of whom " had afterwards died before the date of the wiU, and there " were no legitimate children, the surviving daughter was "held to be entitled, inasmuch as the testator might have " been ignorant of the death of one of the daughters, "though cognizant of A.'s death, and of his having left "the illegitimate children only. (Re Herbert's Trusts, "1 Jo. &H. 121.) "In Edmunds v. Fessey (29 B. 233) the gift was 'to "each of the sons and daughters of my late cousin A.,' "who had died, leaving two legitimate and one ille- "gitimate sons, and only one daughter, who was "illegitimate. It was held a gift to the legitimate sons no PERSONS DESIGNATiE. " and to the only daughter, and the illegitimate son was " excluded. " In order that illegitimate children may take under a " gift to children, they must of course be proved to have "been known and reputed as such." Gift to ille- (2.) " Even where the gift is to the children of a living Se™of a" " "person, the context may be sufficiently strong to show living person " that particular illegitimate children were intended' to "take under the gift, as personce designate. "Thus, 'if a gift were mad© to the children of A., " now living — if A. had at the date of the will none but " illegitimate children, and they had acquired by reputa- " tion the character of his children, they would, no doubt, "take under the gift.' {Dover v. Alexander, 2 Hare, "282.) In Beachcroft v. Beadicroft (1 Mad. 430), "where the gift was 'to my children, 5,000Z. each: to the "mother of my children, sicca rupees 6,000,' the ille- " gitimate children were held entitled. So in Hartley v. " Tribber (16 B. 510), a bequest, contained in a codicil, "to A. 'for her own and the children's benefit,' was held " to refer to two illegitimate children described by name "in a prior codicil. [Savage v. Robertson, L. R. 7 Eq. "176.J " In Wilkinson v. Adam (IV. & B. 422), a strong case, " the testator being married, but having no children by his " wife, devised estates to his wife for life, and, after her "decease, to Ann Lewis, who then lived with him, with "remainder to his children by the said Ann Lewis. It " was held that illegitimate children of the testator by " Ann Lewis, who had acquired the reputation of his chil- "dren at the date of the will, were entitled; inasmuch as "the testator being" "a married man, with a wife who he thought would survive him, providing for another woman to take after the death of his wife, and for chil- dren by that woman; it is impossible he could mean anything but illegitimate children." {Per Lord Eldon, 1 V. & B. 468; [Lepine, v. Bean, L. E. 10 Eq. 160].) "But," continues Mr. Hawkins, "a bequest "to the testator's children, there being at the date THE DICTIONARY PRINCIPLE. Ill of the will threo legitimate children and on© illegitimate, and the income being directed to be applied in fourths for their maintenance, was held not to include the ille- gitimate child. (Carturright v. VauMry, 5 Ves. 530. See 1 V. & B. 464.) " If the will contains a gift to the children of A. includ- Gifts to chil- ing B. (an illegitimate child), and there is a subsequent anillegitimate gift to the said children of A., of course B. will take •'^'ji'^' '^^'^^ 11 • o -r. 1 1 m n ■ suDsequeiit under the subsequent gift. But doubtful cases arise gift to chil- where an illegitimate child is expressly included in a ^J™ simpHoi- bequest to children in one part of the will, and there is a gift to children simpliciter, (not, to the said children,) in another part of the will. As if legacies be given to B. (an illegitimate child) and the othler children of A., and the residue be given to aR and every the children of A., is B. entitled to share in the residue ? It would seem that unless there is something necessarily to couple the two gifts together, the fact of being described as a child elsewhere in the will is not sufficient to entitle the illegitimate object to claim, where not expressly men- tioned: and this conclusion is supported by Bagley v. Mollard (1 R. & My. 581), and see Owen v. Bryant 2 D. M. G. 697). On the other hand, in Meredith v. Farr (2 Y. & C. C. C. 525), and Worts v. Cubitt (19 B. 421), illegitimate children were admitted under similar circumstances." This question has now been set at rest by the decision mil v. Crook. of the House of Lords in Hill V. CrooTi, L. E. (6 H. L. Thediction- 265). The principle (sometimes called "the dictionary ^ry principle, principle") is that the testator may by appropriate words show an intention to use the generic term children so as to include illegitimate along with legitimate children. " The terms ' husband ' and ' wife,' ' father ' and ' mother ' and ' children ' are all correlative terms . If a father knows that; his daughter has children by a connection which he calls a ' marriage,' with a man whom he calls her ' hus- band,' terming the daughter the ' wife ' of that husband, I am at a loss to understand the meaning of language if you are not to impute to that same person when he speaks 112 MODERN TENDENCY OF DECISIONS. of the 'children' of his daughter this meaning, that as he has termed his daughter and the man with whom she was living ' wife ' and ' husbanid,' so also he means to term the offspring born of that so-called ' marriage ' the childrenaccordingto that nomenclature. . . If you find that is the nomenclature used by the testator, taking his will as the dictionary from which you are to find the meaning of the terms he has used, that is all which the law, as I understand the cases, requires." {Per Lord Cairns, L. E.. 6 H. L. at p. 285.) The dictionary prin- ciple has been frequently applied. (Re Humphries, 24 Ch. D. 691; B& Horner, 37 Ch. D. 695; Seale Hayne v. Jodrell, [1891] A. C. 304; Be; Harrison, [1894] 1 Ch. 561; Re Brown, 62 L. T. 899; Be Walker, [1897] 2 Ch. 238; Re Parker, [1897] 2 Ch. 208; Re Smilter, [1903] 1 Ch. 198; Re Loveland, [1906] 1 Ch. 542; Ehbern v. Fowler^ [1909] 1 Ch. 578, settlement; Be Kiddle, 92 L. T. 724; Be Couturier,- 96 L. T. 560; Laker v. Hordern, 1 Ch. D. 644; Be Haseldine, 31 Ch. D. 511.) " The testator may, no doubt, tell you that he uses any particular words in a sense of his own, or (as it has been said) makes his own dictionary." {Per Lord Davey in Van Grutten v. Foxwell, [1897] A. C. p. 684.) Mr. Hawkins continues — "A bequest to A. and B. (illegitimate children) 'and " every other the children ' of a person, does not of course "include another illegitimate child not expressly named. " {Mortimer v. West, 3 Euss. 370.)" Eeoent deci- Since Mr. Hawkins wrote, the tendency of the decisions faTOurablTt^ ^^ heen more favourable to illegitimate children. A illegitimate summary of the changes created by the course of decisions will be found in Jarman on Wills, pp. 1779 et seq. It should be remembered that (since marriage revokes a will (&)) a bequest by a bachelor or spinster to his or her own children cannot refer to legitimate children {In bonis Frogleiy, [1905] P. 137; Clifton v. Goodhuw, L. R. (b) Wnis Act, s. 18. GRANDCHILDREN. 113 6 Eq. 278); nor can a gift by a bachelor to his wife refer to his legal wife. (Re Brown, 54 Sol. J. 251.) Also if a testator is illegitimate and makes a bequest to Illegitimate brothers, sisters or any other collateral relatives he must "^^ * " mean illegitimate relatives (Be Corsellis, [1906] 2 Ch. 316); and a bequest to the next of kin of an illegitimate person in default of such person having issue cannot mean legitimate next of kin (Be Wood, [1902] 2 Ch. 542); Bo also "relations" of an illegitimate person without chil- dren means those persons who would have been relations had such person been legitimate (Be Deakin, [1894] 3 Ch. 565). Grandchildren, dc. Mr. Hawkins observes — "Although the word 'children' is sometimes used in " a loose sense, signifying descendants, it is perfectly "settled that— Rule. A srift to the ''children" of a person ''caiiidren" _ " _ ^_ does not m- does not include grandchildren. (Radcliffe v. elude grand- — fi Ti 1 1 n T flTi " nor Buckley, 10 Ves. 195; Pride v. Fooks, 3 De G. & "grand- T OC9\ children" O . D. at p. 517, where the earlier cases are discussed.) ISSUE. 117 Note. — Mr. Hawkins continues: "The rule is, in asder- ^'taining the degree of relationship in which one person "stands to another, to count up to the common ancestor, "and then down again to the person whose relatiotiship ^'is sought; thus the first cousin twice removed is related ■" to the propositus in the same degree as his second cousin, "for they are both in the sixth degree." Issue. Rule. A gift to "issue," prima facte, includes issue includes T 1 1 c 1 / 1-1 I rr descendants of aescendants oi every degree. {Uavenport y. Han- every degree. hury, 3 Ves. 257.) [Mt/vean v. Archer, [1903] A. C. 379.] "A gift to the issue of A. simpliciter creates a joint ■"tenancy: but if the gift be to the issue as tenants in " common, they take per capita. {Davenport v. Hanbury, "3 Ves. 258.) [Hobgen V. Neale, L. E. 11 Eq. 48.J Issue begotten by A. — "It is settled that the addition Issue begotten "of the words 'begotten by A.' to the word issue, does confin^°to " not necessarily restrict issue to the sense of children . chadren. " (Evans v. Jones, 2 ColL 516.)" If the gift to the issue is per stirpes the general rule is that children never take concurrently with their parents. (Be Bawlinson, [1909] 2 Ch. 36.) The manner in which issue take under different circumstances is discussed in; Jarman on WiUs, pp. 1592 et seq. Sibley v. Perry. Mr. Hawkins continues — "The generality of the word 'issue' is, however, " restricted, in a case which frequently arises, by a refer- "ence to the parent of the issue in question; for it is an "established rule that— Rule. Where the '■'•farenV of "issue" is spoken sihuyv. of, the word "issue" is prima facie restricted to 118 SIBLEY V. PERRY. The word ' ' parent ' ' rpstrictB "issue" to children of the parent. children of the parent. {Sihley v. Perry ^ 7 Ves, 522; Pruen v. Osborne, 11 Sim. 132; \^Martin v. Holgate, L. R. 1 H. L. at p. 184].) Thus if the devise or bequest be to the children of A. living at a given period, with a direction that the issue of any child dying before that period shall take their parenfs share, the gift to issue is confined to grandchildren of A. And the rule is the same, if the gift be to the children of A. living at a given period, and the issue of such as shall be then dead, such issue to take their parenfs share; although the gift to issue is distinct from the direction as to taking the share of the parent. {Smith v. Horsjall, 25 B. 628 ; Maynard v. Wright, 26 B. 285 ; \_McGregor v. McGregor, 1 D. F. & J. 63].) The rule applies to devises of real estate. {Bradshaw v. Melting, 19 B. 417.) " I have always considered it as settled that, in a will or in a deed, if it is a question whether the word ' issue ' shall be taken generally, or in a restricted sense, a direc- tion that the issue shall take only the shares which their parents would have taken if living, must be taken to show that the word ' issue ' was used in its restricted sense." (Pwew V. Osborne, 11 Sim. 138. [Per Shadwell, V.-C.]) Mr. Hawkins continues — " The rule of course is the same, where the direction is "that the issue shall take their 'father's or mother's' "share. {Buckle v. Fawcett, 4 Hare, 536.) Exception. — "But the rule will yield to indications of ' ' a contrary intention ; and there is a manifest distinc- "tion between the case where, as in Sibley v. Perry, the " only gift to the issue is contained in the direction that " they shall take the shares which their respective parents SIBLEY V. PEKEY. " would have taien if living, and the more usual case where " there is a distinct gift to the issue, followed by a direc- " tion that the issue shaU. take only a parent's share. In " the latter case the direction as to the share may be "construed distributively; e.g., that a grandchild shall " take a child's share, and a great-igrandchild take a "grandchild's share. 'It is clear that the " issue" of "the "parent" must mean the children of the parent, " but it is not certain, in every case, that the testator has "by the word "parent" meant to signify the first taker, "the child in the first instance.' (Boss v. Ross, 20 B. "649.) Thus, where the gift was to the children of A. " and the issue of such as should have died, ' the issue, if "more than one, to take equally amongst them the share " which their parent would have taken, and if but one then "to take a child's share,' with a gift over on general "failure of issue of A., the rule was held to be excluded, "and a great-grandchild of A. was admitted to take. "(Boss V. Ross, 20 B. 645.) But this construction of " the word parent requires to be aided by the context "(ib.)." Ross V. Ross was approved by the Court of Appeal in Ralph ,v. Carrick ^{11 Ch. ,D. 873), where James, L. J., pointed out that the application of the rule in Sibley V. Ferry might cause an intestacy. In Birdsall v. YorJc (5 Jur. N. S. 1237), an intestacy was avoided by holding issue to mean grandchildren in spite of a reference to "parent." But notwithstanding the unsatisfactory nature of the rule it is probably established. (See Re Birks, [1900] 1 Ch. 417 — the opening remarks of Lindley, M.E.'s judgment are, of course, inaccurate). AU these cases are discussed in Jarman on Wills, pp. 1598 et seq. Family. Mr. Hawkins continues^ "The word 'family' is of doubtful import, and would " anciently have rendered many gifts void for uncertainty. "It appears, however, to be established as a convenient 119 120 FAMILY. Family in a bequest of personal estate means primd facte children. Bequest to A and his family. " rule of construction, in the absence of a contrary inten- " tion, that — Rule. A bequest of personal estate to the "family" of & ^evsou primd facie means his chil- dren. {^Barnes v. Patch, 8 Ves. 604 ; Gregory v. Smith, 9 Hare, 708 ; Re Terry's Will, 19 B. 580 ; [Re Muffet, 55 L. T. 671 ; Re Hutchinson and Tenant, 8 Ch. D. 540J.) " Thus a bequest to ' A.'s family ' does not, prima facie, "include himself or his wife. (Barnes v. Patch, 8 Ves. "604.) 'And a bequest to 'the Smith family ' is, it "seems, equivalent to a gift to the family of Smith, so as "to mean his children exclusively. {Gregory v. Smith, "9 Hare, 711.) A bequest to 'the families of Gregory "and Gear,' creates a joint-tenancy between the children "of those persons (^6.). " So a bequest to ' A. and his family ' Was held to create "a joint-tenancy between A. and his children living at "the testator's death. (Parkinson's Trust, 1 Sim. N. S. "242.)" In Appendix II. to the original Edition Mr. Hawkins observes that in Wani v. Grey, 26 B. 485, Eomilly, M. E., "held that a direction to pay to A. and her "family simpliciter,^ operated as a gift to A. for life, "with remainder to her children as she should appoint, "and in default equally: but this is directly opposed to "Re Parkinson's Trust." It may be added that in 1863 the M. R. did not know how he arrived at that conclusion. (Hart v. Tribe (No. 4), 32 B. at p. 280.) "But," continues Mr. Hawkins, "the word 'family' " is extremely flexible, and no strong rule can be laid "down concerning it." "Under different circumstances it may mean a man's household, consisting of himself, his wife, children, and servants; it may mean his wife and children, or his children excluding the wife; or, in the absence of wife and children, it may mean his brothers and sisters, or his next of kin; or it may mean the genea- DEVISE TO A, ^ND HIS FAMILY. 121 logical stock from which he may have sprung. All these applications of the word, and some others, are found in common parlance." .{Blackwell V. Bull, 1 Keen, 181. [Per Lord Langdale, M. E.]) "The word 'family' has various meanings. In one sense it means the whole household, including servants, and, perhaps, lodgers. In another sense it means every- body descended ftom a common stock, that is to say, all blood relations (c) ; and it may, perhaps, include the hus- bands and wives of such persons. In the sense I have just mentioned, the family of A. includes A. himself; A. must be a member of his own family. In a third sense, the word includes children only; thus when a man speaks of his wife and family he means his wife and children. Now, every word which has more than one meaning has a primary meaning, and if it has a primary meaning you want a context to find another. What, then, is the primary meaning of 'family'? It is 'children'; that is clear upon the authorities which have been cited; and, independently of them, I should have come to the same conclusion." {Fer Jessel, M. K., in Figg v. Clarice, 3Ch. D.atp.674.) Family in relation to Real Estate. — Mr. Hawkins con- Devise to A. tinues: " In devises of real estate, the word 'family ' will family' generally, it would appear, be construed as equivalent to 'heirs' or 'heirs of the body.' (Counden v. Clerke, Hob. 29(d); Wright v. Atkyns, Coop. 122.) A devise to A. and his family would, in general, it would appear, give A. an estate tail. (Lucas v. GoMsrrdd, 29 B. 657.)" But "family " in a devise of real estate may if the con- text requires it be held to mean "children." (Burt v. Hellyar, L. E. 14 Eq. 160.) (c) See Snow v. Teed, L. R. 9 Eq. 622 (Ed.). {d) In Counden v. Clerke the words were, "right heirs males and posterity of me and my name for ever." In Wright v. Atkyns, Coop. at p. 117, Lord Eldon refers to a case in Dyer, which he says is confirmed by Counden v. Clerke. Is this Chapman^ s Case, Dyer, 333b? (Ed.). 122 CHAPTER IX. DESCRIPTIONS HELATIVE TO SUCCESSION TO PEESONAI. ESTATE. Me. Hawkins observes — " We must distinguish between four classes of persons ' who may take the personal estate beneficially by way of 'succession: — 1st. The 'next of kin' proper, or nearest ' blood-relations of the deceased, according to the degrees 'of the civil law: e.g., the parents and children of the ' deceased in the first degree, and in default of these the ' brothers and sisters, grandichildren, and grandparents in 'the second degree, and so on. 2ndly. The 'next of kin 'according to the Statutes of Distributions,' including ' those who take by representation to next of kin under 'those statutes: in this class, children and their repre- ' sentatives take to the exclusion of parents, brothers and 'sisters and their children to the exclusion of grand- ' parents, &c. (See Stephen's Cotnm. II. 197, 209, '3rd ed.) 3rdly. The wife, who is a person entitled to 'a share of the personal estate by virtue of the Statutes ' of Distributions, hut is not in any sense one of the next ' of kin. 4thly. The husband, who succeeds to, or rather 'appropriates, the personal estate of his wdfe by virtue 'of the marital right, but is not a person entitled under 'the Statutes of Distributions. These distinctions must ' be borne in mind in considering the rules contained in " this chapter. Bequest to " A. or Ms Heirs." " If the testator gives a legacy to his heir, or to the heir ' of another person, the proper sense of the word, meaning BEQUEST TO A. OR HIS HEIES. 123 " the heir-at-law, Is not necessarily to be clhan'g'ed because "the subject of the bequest is personal estate. (De "Beauvoir v. De Beaiivoir, 3 H. L. C. 524; Mounsey v. "Blamire, 4 Euss. 384. [Smith v. Butcher, 10 Ch. D. "113].) Where, however, the gift is to the 'heirs,' by "way of substitution for the legatee, in the event of "his dying before the period of payment, it is inferred " that by the word 'heir,' the testator meant such persons "as would inherit not the real, but the personal estate; and it is a rule that — Rule. A bequest of personal estate to " A or his Giftof per- , . ,, . , -n, 1 _e T_ J.-J. sonal estate to heirs IS construed as a giit by way or substitu- « a. or his tion to the heirs, in the event of the death of A. strued as a""^' before the period of distribution. {Gittmgs v. f^b^titutior* McDermott, 2 My. & K. 69 ; Doody v. Higgins, '^^^^X^^^l 9 Hare, App. 32.) the statutes of ,,,,.,,.,,, , Distrihntions. And the word " heirs is held to mean the persons who would be entitled to the personal estate of A., by virtue of the Statutes of Distribu- tions, if he had died intestate, including therefore includes a a widow, but not including a husband. {Jacobs y. ahuehand. Jacobs, 16 B. 557; Doody v. Higgins, 2 K. & J. 729; Re Craven, 23 B. 333; Re Porter's Trust, 4 K. & J. 188.) The heirs take as tenants in common, in the The heirs proportions fixed by the statutes. {Jacobs v. statutebie*^ Jacobs, 16 B. 557; Re Porter's Trust, 4 K. & J. P^P^^ions. 188.) "The first question is, who were the persons intended by the testator to take under the disposition of the residue to ' the following persons or their heirs ' ? I have looked into the cases whidh were cited in the argument, and into many other oases upon this point, and I think that the 'words, 'or their heirs,' must be construed as words of substitution; and that the word 'heirs,' must 124 HEIKS TAKE BY SUBSTITUTION. be construed heirs according to the nature of the pro- perty, that is, next of kin, the property being given as money to the persons intended to take." {Per Turner, V.-C, Doody V. Kiggins, 9 Hare, App. 35. [Se Stcm- «flm,48L.T.N.S.660].) "Now it is well settled that where the word 'heir' occurs in a gift of personal property, and the heir-at-law does not take as persona designata, the term ' heir ' shall mean not personal representative, but those who for the purposes of succession stand in regard to the personal property of the testator in a position analogous to that in which the heir-at-law would stand in regard to his real property. It has often been said that in such cases the word means next of kin, but in Doody v. Higgins, I held it must mean such persons as would have been entitled, under the Statutes of Distribution, to succeed to the personal property of the deceased in case h© had died intestate, including therefore a widow." {Re Porter's Trusts, 4 K. & J. 197; [per Page Wood, V.-C; Wing- field v. Wingfield, 9 Ch. D. 658; Keay v. Boulton, 25 Ch. D. 212].) " The husband does not take by succession — he is not entitled under the Statutes of Distribution, but by virtue of his marital right — a right distinct from and paramount to the Statutes of Distribution. And under a bequest to a woman, and in the event of her death, to her heirs, taking the word 'heirs' as equivalent to 'the persons who, under the Statutes of Distribution, would be entitled to succeed to her personal property,' her hus- band would be excluded." {Doody v. Higgins, 2 K. & J . 738; [per Page Wood, V.-C.].) Mr. Hawkins continues — "The rule applies whether the gift be immediate, as to "A. or his heirs, or in remainder, as to A. for life, and "after his decease to B. or his heirs. And the rule " applies if the gift be to several, as to A. and B. or their "heirs, or to a class, as to the children of A. or their "heirs. [Be Pkilps' Will, L. E. 7 Eq. 151; Finlason "v. Tatlock, L.E. 9 Eq. 258.] HEIES WHEN ASCERTAINED, 125 "The rule will apply to any form of gift where the heirs "are to take jexpressly by way of substitution for the " original legatee; as if the bequest be ' to A., and failing "him by decease before me, to his heirs.' (Vaux v. "Henderson, 1 J. & W. 388.) "In Re Gamhoa's Trusts (4 K. & J. 756) the bequest " was ' to the heirs of my late partner A. the sum of 600?., "for losses sustained while the business of the house was ' ' under my sole control . ' It was held that the rule applied, " having regard to the express motive of the bequest, and "that the persons entitled under the Statutes of Distribu- "tion, and not the heir-at-law, took the money. " The rule applies to a bequest ' to the following "persons or their heirs for ever, viz., A., B., C, &c.' " {Doody V. Kiggins, 9 Hare, App. 32), the words, 'for "ever' being held not to alter the construction. And in " Jacobs v. Jacobs (16 B. 557), where the gift was ' to A. "and B., or to their heirs, in such mainner as they might "deem proper;' the power of appointment among the " heirs not having been exercised, it was held that the rule "applied, and that the heirs took in the statutable pro- " portions. ? Heirs when ascertained. — " As in the case of a bequest Under a be- "to next of kin, next of kin according to the statute, &c.. Ma heirs the "so under a substitutional bequest to the 'heirs' of any l^eirs are to be " one, the persons to take are to be ascertained at the death the death of "of the propositus whose heirs are spoken of, and not at the period of* " the period of distribution. (See post, rule in Gundry v. distribution. " Pinniger.) Thus, if the gift be to B. for life, remainder "to A. or his heirs, and A. dies in the lifetime of B., the "persons to take are those who would be entitled to the "personal estat© of A. by virtue of the Statutes of Dis- "tributions at his death, and not at the death of B." [Jacobs V. Jacobs, 26 B. 557.] "If the substitutional bequest be to the heirs of A., a But if A. dies "person who dies in the testator's lifetime, or w'ho was i° *''t!^!*'^'^ '^ . ' tor s lifetime, " dead at the date of the will, the persons to take are the heirs are " prvmd facie those who at the testator's death would have ° ^ ^^'^^' 126 BULLOCK 1). DOWNES. tained at the testator's death. "been entitled to the personal estate of A., by virtue of "the statutes, if he had then died intestate, (yaux v. "Henderson, 1 J. & W. 388; Be Gamboa's Trusts, 4 K. " & J. 756.) Thus, if A. had died leaving children only, " who afterwards died in the testator's lifetime, and grand- " children only of A . were living at the testator's death, the " gift would not lapse, but the grandchildren would be "entitled. The same rule prevails where the gift is to " the next of kin, or next of kin according to the statute. " (Whwton V. Barker, 4 K. & J. 502.) Mullock V. Dowries. A gift to the persons en- titled, or en- titled as next of kin under the Statutes of Distribu- tions, is a gift to them in the statut- able shares. Bullock v. Dow^nes. " A gift to a class of persons, without words of sever- "ance, creates a joint- tenancy between them; and it has "consequently been contended ,that under a bequest to " ' next of kin according to the statute,' or to ' the persons " entitled under the statute,' the words of reference to the " Statute of Distributions applied only to determine the "objects of the gift, and that the persons having been " ascertained by reference to the statute, took as joint- " tenants, and not in the statutable shares: but it is now "settled as a rule of construction, that — Rule. A gift to the persons who would be entitled to the personal estate of any one by virtue of the Statutes of Distributions, is prima facie a gift to them in the shares in which they would take under the statutes, and not in joint- tenancy. {Bullock V. Downes, 9 H. L. C. 1 ; [Re Nightingale, [1909] 1 Ch. 385].) The rule applies whether the gift be to the persons entitled under the statutes simpliciter, or to the persons entitled under the statutes as next of kin (excluding a widow) {ib.). "Where under a will property is to go to the persons entitled under the Statute of Distributions, and there is BULLOCK V. DOWNES. 1^'' no indication of an intention to exclude the effect of the Statute of Distributions as to interest as well as persons, that statute must be applied to determine the interest as "weU as the persons." ij^er Lord Brougham in Bullock v. Dowries, 9 H. L. C. 17.) " The authorities seem to me to bear out the pro- position, in itself las I think perfectly reasonable, and most likely to give effect to the intention of testators, that under a direction to pay to those entitled under the statute, if no other expression or indication of intention be found as to the interest to be given, reference must be had to the statute for the measure as weU. as the objects of the gift." {Per Lord Kingsdown, ih., 9 H. L. C. 30.) Mr. Hawkins continues — " In Bullock V. Dowries the bequest was, in remainder " after a life-interest, 'in trust for such person or persons " of the blood of me, as would by virtue of the Statutes of " Distributions have become and been then entitled thereto "in case I had died intestate': equivalent to a gift to the "next of kin, according to the statute, of the testator at "the time of his death." But the statutes may be referred to only for the purpose •of defining the class, as where there is a direction to divide in equal shares. (Re Richards, [1910] 2 Oh. 74.) Reference to Intestacy. — Mr. Hawkins continues: Rule applies " The rule in Bullock v. Downes will clearly apply the^arsons " where the reference in the terms of the gift is not to entitled m the statute, but to an intestacy. Thus, under a bequest intestacy, "to 'my next of kin as if I had died intestate,' or 'to " the persons entitled in case of intestacy ' to the personal " estate of any one, the objects will take in the statutable "proportions, and not in joint-tenancy. "It is a further question how far the rule applies to Whether the "other expressions under which the Statute of Distribu- tended to' " tions is referred to to determine the objects, although the s^^*^ *°. " ^T, presentives words themselves do not refer to the statute: as rela- and"rela- " tions,' and 'representatives,' where the latter word is *'°°^' "held to mean, not executors or administrators, but the 128 NEXT OF KIN. "persons entitled under the statute. In Walker v. Mar- " quis of Camden (16 Sim. 329) it was held that under "a gift to 'representatives,' meaning the persons entitled "under the statute, the objects took as joint-tenants, and "not in the statutable shares: but as under a substitu- "tional bequest to 'heirs,' the objects take in the statu t- "able proportions, though there is no express reference " to the statute, it would seem likely that the same prin- "ciple will be applied to 'representatives,' and that " Walker v. Marquis of Camden will be held to have "been overruled by Bullock v. Dotmes. [Theobald on .Wills, 7th ed., p. 344; Jarman on WiUs, p. 1616.] "The word 'relations' stands on a somewhat different " footings, since the word itseK has no reference to &b " course of legal succession, and is only Kmited to objects "within the range of the Statutes of Distributions of " necessity, and to prevent the gift being void for unoer- " tainty. As it has been considered previously to Bullock "v. Dowries, that a bequest to 'relations,' simplidter, is " not governed by the statute as to the shares, but creates "a joint tenancy (2 Su^d. Pow. 267, 6th ed.; Tiffin v. " Long'man, 15 B. 275(a)), it is possible that the rule "may not be extended to this case." In Baffles 'v. Le Breton, L. E. 15 Eq. 148 (more fully reported 42 L. J. Ch. 362), Romilly, M.R., held that under a gift to ' relatives ' the next of kin took as joint tenants. (See post, p. 138.) "Next of Kin." Mr. Hawkins observes — " There is an important difference between a gift to " ' next of kin ' simplidter, and a gift to ' next of kin "according to the statute;' for while both are technical "expressions, the latter points expressly to the law of "succession ab intestato, while the former points only to («) In Ttffin V. Longman there was a direction to divide whict created a tenancy in common. (See ^osi, pp. 138, 139.) (Ed.) NEXT OP KIN. 129 "the law of consangiiinity. The law of suooession, as " establisheid by the Statutes of Distributions, prefers "some of the true next of kin to others, as the children "to the parents of the propositus; and admits some who " are not, properly speaking, next of kin, to take by repre- "sentation along with those who are. And it was for- "merly supposed that the word 'next of kin,' used sim- "plidter, might have acquired by usage a meaning "analogous to that of 'heir' in immovables, so as to "have become synonymous with the expression, 'next of "kin aooording to the statute;' but it has been oonolu- "sively established as a rule of construction, both with "regard to deeds and wills, that the strict meaning of " the word is to be preserved, and that — Rule. A gift to "next of kin," whether of the "Next of , , , .-I ,1 , km" does not testator or another person, means the nearest mean " next blood-relations in equal degree to the propositus, ^^the''^'^" and is not equivalent to " next of kin according ||ft^^^°* to the Statutes of Distributions." [Elmsley v. tions." Young, 2 My. & K. 780 ; Withy v. Mangles, 4 B. 358 ; 10 CI. & F. 215 ; Avison v. Simpson, Johns. 43 ; Rook v. Attorney- General, 10 W. R. 745.) Thus, all who are related in equal degree to the propositus, as father, mother, and children, take together as joint tenants [Withy v. Mangles); while those who would be entitled under the statute by representation only are excluded. {Elmsley v. Young.) " I think that the appellant has wholly failed in proving that the term next of kin, used simpUciter, has by a technical or conventional construction obtained the meaning of ' those who would be entitled, in case of intestacy, under the Statute of Distributions;' and I am therefore of opinion that these words must be con- strued in their natural and obvious meaning, of nearest H. 9 130 NEXT OF KIN. in proximity of blood." {Ter Lord Cottenham, in Wifhy V. Mangles, 10 01. & F. 253.) "Although it does appear to me, that the common use which is made of the term ' next of kin,' in con- nection with the administration and distribution of personal estates in case of intestacy, may occasionally have given rise to a notion that the persons to whom the law gives the succession are legally and for all purposes to be considered as the next of kin, yet this does not appear to be a notion which can be supported in law. The construction given to the term 'next of kin,' with reference to the statute of Car. 2, shows that the next of kin entitled to administration and distribution, are not to be deemed next of kin for aU purposes; and I apprehend, that in all other cases, the terms 'next,' or ' nearest of kin,' must be construed according to their simple and obvious meaning, or according to the legal construction of the whole instrument in which they occur." {Withy v. Mangles, 4 B. 367; [per Lord Langdale, M. R.]) Mr. Hawkins continues — " It makes no difference in the construction that the " words in question occur (in a marriage settlement) in the "ultimate limitation of personal property to the 'next of " kin ' of the intended wife. (Withy v. Mangles, 10 01. & "F. 215.) And the case would be the same, if the "ultimate limitation were to the 'next of kin' of the "settlor or testator. Reference to Intestacy. — " But an express reference to "the case of intestacy is equivalent to a reference to the " statute. Thus a gift ' to my next of kin as if I had died " intestate,' is equivalent to a gift to ' my next of kin ac- " cording to the Statutes of Distributions.' {Garrick v. "Lord Camden, 14 Ves. 372.) "Next of ^ "Next of Kin according to the Statute." — "A gift to to the statute"' "'next of kin,' with express reference to the Statutes of includes those " Distributions, or to an intestacy, while it excludes those GUNDRY V. PINNIGEE. 131 ^' in equal degree whom the statutes postpone, include^ who take by "those who take under the statutes by representation to tiontonext "next of kin, as well as the next of kin themselves. °^^™- " {Gafrick v. Lord Camden, 14 Ves. 372; [Be Gray's "Settlement, [1896] 2 Ch. 802.]) " But a gift to next of kin, either simpliciter or by re- But does not "ference to the statute or to intestacy, does not include a i°p]i^dea ■^ ' -wiaow. "wife, noir a fortiori a husband. (GarrioJc v. Lord "Camden, 14 Ves. 372.)" "If a husband bequeaths to his next of kin, that prima facie does not include his wife: and it is quite clear that if a married woman, under a power by settlement, bequeaths to her 'next of kin,' it would be impossible to hold that under . . . such a will, without more, the husband would take as sole next of kin . On the other hand, it is competent to, and required from, the Court to look through the whole will; and to see, whether from the whole an intention is manifested to include the wife among those who are to be taken more strictly as next of kin: a description prima facie exclud- ing her." (76.; [per Lord Eldon, C, at p. 381.]) GUNDEY V. PiNNIGEE. Mr. Hawkins continues — " In accordance with the primary meaning of the words, " and with the general leaning of the Courts to ascertain "the objects of the testator's bounty as early as possible, " it is established as a rule of construction (which has been " observed more strictly of late years) that — EuLE. A devise or bequest to " next of kin," ".Next of (■ 1 • T 1 11 o km "means *' next of km according to the statute, &c., means next of km at the next of kin at the death of the person whose the person next of kin are spoken of. ( Gundry v. Pinniger, KnTre^pok^n 1 D. M. Gr. 502; Bird v. Luckie, 8 Hare, 301 ; °*^ Bullock V. Downes, 9 H. L. C 1 ; [^Mortimore v. Morttmore, 4 A. C. 448].) Thus, if the gift be to A. for life, and after his 9(2) 132 GUNDEY V. PINNIGEE. decease to the next of kin of the testator, the persons to take as next of kin are to be ascertained at the death of the testator, and not at the death of A. although the And the rule applies, although the tenant for tenant for life . ^ ^^ . pi be the bole life be the sole next of kin, or one of the next of kin, at the death of the testator and at the date of the will. Thus, if the gift be to A. for life, and after his decease to the next of kin of the testator, and A. is the sole next of kin at the death, A. takes the property absolutely. [Holloway v. Hollo- way, 5 Ves. 399 ; Ware v. Rowland, 2 Phill. 635 ; Lee V. Lee, 1 Dr. & Sm. 85 ; Wharton v. Barker,. 4 K. & J. 498 ; \Re Wilson, [1907] 2 Ch. 572].) Rule appKes The rule is the same where the devise is to the the heir. heir. Thus, if there be a devise to A. for life, remainder to the right heirs of the testator, and A. is the testator's heir-at-law at his death, A. takes the property absolutely. {^Holloway v. Holloway, 5 Ves. 399 ; Rawlinson v. Wass, 9 Hare, 673 ; [Ware v. Rowland, 2 Phill. 635].) " Where a testator gives property to a tenant for life, and after the death of the tenant for life to his next of kin, and there is nothing in the context to qualify, or in the circumstances of the case to exclude, the natural meaning of the testator's words, the next of kin of the testator living at his death will take; and if the tenant for life he such next of kin, either solely or jointly with other persons, he will not on that account only be excluded." {Say v. Creed, 5 Hare, 587; [p'er Wigram, V.-C.]) " In the case of a bequest in trust for A. for life, and from and after his death in trust for a class of persons, as, for example, the testator's next of kin; this is an immediate gift to the persons answering the description NEXT OF KIN ASCERTAINED AT THE DEATH. l'^3 ■of the testator's next of kin at his death, suhjeot to the life interest given to A. "In the case of a bequest in trust for A. for life, and from and after his death in trust for the testator's next of kin, A. being himself the next of kin, or one of the next of kin, there is no reason for holding' that A. would be precluded by the gift to him of the life estate from taking under the gift to the next of kin, — nor for holding that the next of kin who are to take are those w'ho maj be such at the death of A." (Lee v. Lee, 1 Dr. & Sm. 86, 92; [per Kiadersley, V.-C.].) "In every ease of a gift to 'my next of kin,' or 'my Next of kin nearest relations,' or any gift of that kind, prmd fade igx-aeA^t"^' the rule is, and I think it is not only a rule of construe- death of tion, but the natural meaning of the words, that the -class is to be ascertained at the death of the testator." (Per Parker, J., in Be Winn, [1910] 1 Ch. at p. 286.) Exceptions. — Mr. Hawkins observes: "The language " of the will may be such as to show that the testator in- " tended the next of kin to be ascertained at the period " of distribution; but the later cases are generally adverse "to this construction. (See Bullodlc v. Doumes, 9 "H. L. G. 1.) " iThus, it is settled that words of futurity alone do not Words of " exclude the rule: as if the gift be (in remainder after a not'ex^ude " life interest) to the person or persons who sJiall be the ^^'^ ^^''■ " next of kin of the testator, or of A. {Hayner v. Moto- "hrayj 3 Bro. C. C. 234; Holloivay v. Holloway, 5 "Ves. 399.) " In Doe V. Lamson (3 East, 278), a gift from and after "the decease of A., 'for and amongst such person and ^'persons as shall appear and can be proved to be my next ■" of kin, in such parts and proportions as they would by ■"virtue of the Statute of Distributions have been entitled' " to imy personal estate if I had died intestate,' was held ■" to be within the rule. "So in Cable v. Cable (16 B. 507), where the gift was "" 'from and after the decease of A. to become the pro- 134 NEXT OF KIN WHEN ASCERTAINED. "perty of the person or persons who should, then become- "entitled to take out administration, &c., in the propoi*- "tions pointed out by the statute, in case he had died "unmarried and intestate,' it was held that the next of "kin were to be ascertained at the death. "So in Wheeler v. Addams (17 B. 417), where the " gift (b) was (in. remainder after a life interest) 'in "trust for such person or persons as shall then be the "next of kin of A., and would have been entitled thereto "under the Statutes of Distribution, in case she had "died unmarried or intestate.' " On the other hand, the rule was held to be excluded, " and the next of kin to be ascertained at the period of "distribution, in Wharton v. Barker (4 K. & J. 483), "where the cases were reviewed: — the gift being (in re- "mainder after a life interest) 'to the person or persons " that shall then be considered as my next of kin and "personal representative or representatives, agreeable to- " the order of the Statutes of Distribution.' The same "construction was adopted in Long v. Blackall (3 Ves. "486), where the gift was to A. for life, and after his "decease to the persons who should then be the legal re- " presentatives of the testator. [Re Sturge and The G. W. B. Co., 19 Ch. D. 444; Re McFee, 103 L. T. 210. J " Other cases, as Say v. Creed (5 Hare, 580), and " Clapton V. Buhrmr (5 My. & Or. 108), where the period ' ' of distribution wa^ adopted on grounds of inf erenco "from the context, are perhaps of less importance atthio "present day, the rule being now more strictly followed. "^ The cases on this subject were classified by Thesiger,. L. J., in Mortimer V. Slater (7 Ch. D. 322, affd. suhnom,. Mortmiore v. Mortwnore, 4 A. C. 448). James, L. J.,, said — " On the authorities I think we are bound to say that when the words are that the fund is to be paid 'tO' such persons as will then be entitled to receive the same as my next of kin under the Statute of Distributions' the claimants must show an actual title under the Statute if) It is a case on a settlement (Ed.). NEXT OP KIN WHEN ASCERTAINED. 135 of Distributions" (7 Ch.D. at p. 328); and the rule in Bullock V. Downes was applied. (See also Be Wilson, [1907] 2 Ch. 572.) Gift to next of Icvn of A., who dies in testator's Ufetime. Gift to next — Mr. Hawkins continues — "The rule in Gundry v. -who dies in Finniger must be stated with a qualification, viz.: — i^eti^I-^ where the gift is to the 'next of kin,' ' next of kin; tobeaBcer- according to the statute,' &o., of a person who dies in tator's death, the teetatoir's lifetime, or who is dead at the date of the will: — in this case the objects to take are to be ascer- tained at the death of the testator, as if the person whose next of kin are spoken of had died at that time. {PMlps V. Evans, 4 De G. & Sm. 188; Wharton v. Barker, 4 K. & J . 502.) Thus, if the gift be ' to the next of kin of the late A.,' and A. has died leaving children, who afterwards die in the testator's lifetime, and at the death of the testator the next of kin of A . are his brothers and sisters, the gift will not lapse, but the brothers and sisters of A. wiU be entitled. The rule is the same in the case of a substitutional bequest to 'heirs.' {Gamboa's Trusts, 4 K. & J. 756.) " In Wharton v. Barker (4 K. & J. 483), where the gift (in remainder after a life interest) was, as to one moiety, in trust for the persons who should then be considered the next of kin of the testator, and as to the other moiety, ' to the persons who shall then be considered as the next of kin of my late wife agreeable to the order of the Statute of Distributions,' it was held that the rule was excluded, and ,that the next of kin both of the testator and of his deceased wife were to be ascertained at the period of distribution." " According to Philps v. Evans, a bequest to the next of kin of a person who is dead at the date of the will, must, under ordinary circumstances, receive an interpretation analogous to that adopted in the case of a bequest to the testator's own next of kin, as regards the period of ascer- taining who are the persons intended; and if there be nothing in the context to make the words applicable to 136 RELATIONS. a class to be ascertained at any otKer time than that of the testator's death, those who at the testator's death are the next of kin of the deceased person named in the will would naturally be the persons to take." {Per Page Wood, V.-C, 4 K. & J. at p. 502, quoted by Stirling, J., in Be Bees, 44 Ch. D. 484, where the general rule was excluded by other words in the will.) "Belations." Mr. Hawkins observes — " The word ' relations ' prima facie extends to all "degrees of relationship, however remote: but in orderj " to prevent gifts to the relations of a person from being " void for uncertainty, the Courts have adopted the rule " (both with regard to real and personal estate) that — A gift to Rule. A devise or bequest to the "relations" ** relations " is equivalent of A., or of the testator, is construed to mean the kin according porsons who would be entitled under the Statutes statute." ^^ Distributions, either as next of kin or by representation to next of kin. {Rayner v. Mowbray, 3 Bro. C. C. 234 ; Green v. Howard, 1 Bro. C. C. 31 ; Doe d. Thwaites v. Over, 1 Taunt. 263.) The rule applies to devises of real estate. {Doe d. Thwaites v. Over, 1 Taunt. 263.) "Although 'relation' is a word of very vague and general import, yet it has obtained a certain degree of ascertained meaning in the courts where questions of this sort have arisen with respect to personal property; that is, it means those who are entitled to take as rela- tions under the Statute of Distributions. This rule of interpretation has been adopted to control the more extensive and lax sense of the word. The term then having obtained this construction in courts of equity, I do not see why it should not obtain the same construction in courts of law." {Doe d. Thwaites v. Over, 1 Taunt. 369; [per Mansfield, C.J.]) ' POWER TO APPOINT TO RELATIONS. 137 " It is perfectly settled, that a bequest to relations is good. Yet that is very indefinite. It may extend in infinitum. In the contest about the founder's kindred, All Souls College contended that it should not be extended beyond the tenth degree. But it was extended to the fourteenth. The Court of Chancery, however, in oases of bequests to 'relations' has, upon grounds of convenience, adopted the rule of the Statute of Distribu- tions; and though, where a power of selection is given, the party may, according to Harding v. Glyn, go beyond that rule, it is adhered to, wherever the execution devolves upon the Court." (Cruwys v. Cohnan, 9 Ves. 324; [per Grant, M.E.J.) Mr. Hawkins continues — " 'Relations' in this sense does not, of course, includte "a wife. (Green V. Howard, 1 Bro. C. C. 31.) " A gift to ' those related to ' a person, is equivalent to "a gift to relations {Rayner v. Mowbray, 3 Bro. C. C. "234): and a gift to 'those of A.'s family,' has been "held equivalent to a gift to the relations of A. {Cruwys "v. Cohnan^ 9 Ves. 319.) " But the rule is only applied when it is necessary to "restrict the term 'relations' to a definite class: thus, a " charitable gift to relations, by way of continuing trust, "is not confined to those within the statute. (Attorney- " General v . Price, 17 Ves . 371 . ) Power to appoint to Relations. — "A power to appoint Power to "to relations of the testator, or of A., if the power be relations, if "one of seledtion, authorises an appointment to relations o^g^f^^^^ "not within the statute. {Har'Mng v. Glyn, 1 Atk. 469.) twn, is not confined to " But if the power be one of distribution only, the donee those within " can appoint only to those within the statute. {Pope v. o^e^^e H " Whitcombe, 3 Mer. 689.)" the power be diitribution Lord St. Leonards ascertained that Pope V. Whitoomibe only, was inaccurately reported. {Findh v. Hollingsworth, 21 B. 112.) The rule of construction is not altered by Lord Selborne's Act (37 & 38 Vict. o. 37) {Re 'Deakinj [1894] 138 GIFT BY IMPLICATION TO EELA.TIONS. 3 Ch. 565), although this Aot seems to have got rid o£ the ground of the rule. Mr. Hawkins continues — "And if there be a power of selection among relations, " with no gift in default of appointment, and the power " be not exercised, those within the statute only will take "by implication. {Rarding\. Glyn, 1 Atk. 469; Grant "v. Lynam, 4 Euss. 297.)" " It is now established that where there is power to appoint among relations so as to give the donee of the power the right of selection — the donee of the power can appoint to any relations, but in modelling the trusts to be applied in default or arising from the power being coupled with the duty, the Court has found itself under the necessity of confining the class of relations to a par- ticular set of relations, and has adopted the rule that rela- tions who take in default of the exercise of the power in that case are those who iare next of kin aooo|rding to the statute; they take as tenants in common, but not in the shares defined by the statute." {Per Chitty, J., in Wilson V. Duguid, 24 Ch. D. at p. 251.) Wtetherthe Relations take per capita. — Mr. Hawkins continues: equally, or in "^ Tiffin V. Longman (15 B. 275), it was held that the statutable "the relations take equally per capita, the statute being "employed only to define the objects, and not to deter- "mine the shares. But it may perhaps be doubted "whether (at least in the case of bequests of personal "estate) the rule in BullociJc V. DovMes (9 H. L. C. 1) "may not be extended to 'relations,' as well as to heirs "and next of kin according to the statute." Mr. Jarman also thought that the relations when con- strued statutory next of kin should take in the shares pointed out by the statute. (Jarman on Wills, p. 1629.) This would seem to be correct on principle, but the case of Eagles v. Le Breton (42 L. J. Ch. 362; L. E. 15 Eq. 148, notice that in the judgment "tenant for life" should be "testatrix," Davey, L. J., in Re Nash, 71 L. T. 5, was misled by this misprint), decides that relatives take RELATIONS WHEN ASCERTAINED. 139 as joint tenants. Mr. Vincent's remarks on Eagles v. Le Breton and Tiffin v. Longman will be found on pp. 1630, 1631 of Jarman on Wills. Relations when ascertained. — Mr. Hawkins continues: Relations iiA-rt/ !• II- T • -1 when asoer- A ^ift to relations, whether immediate or m remamder, tained. "will in general follow the rule in Gundry v. Pinniger^ " and be ascertained at the death of the person whose rela- " tions are spoken of, or at the death of the testator if the "person has idied in his lifetime. Thus, in Rat/ner v. "Mouibray (3 Bro. C. C. 234), a gift to A. for life, " and after his decease ' to such persons as shall be related ' "to the testator, was held to vest in the next of kin at " the testator's death. "But inasmuch as 'relations,' in the wide sense, in- " eludes all who would come within the description of next "of kin at the period of distribution, as well as at the "testator's death, the rule in GuriAry v. Finniger does "not perhaps apply so strictly to a gift to 'relations,' "as to a gift to 'next of kin' {Tiffin v. Longman, 15 "B. 275); and where the gift cannot vest at the testa- " tor's death, the period for ascertaining the relations " may be postponeid. (See, on this point. Lees v. Massey, "3DeG. F. & J. 113.) " Thus, where at the death of the tenant for life without " issue, the testator directed advertisements to be made "for his relations, and gaVe the property to such as "should make their claim wittin two months from that "time, it Was held that the class to take were those who " would have been the next of kin according' to tihe statute "of the testator at the period of distribution. {Tiffin "v. Longman, 15 B. 275.)" It would seem from Davey, L. J.'s judgment in Re Nash (71 L.T. 5), that this decision is not good law. Power of appointment. — Mr. Hawkins continues: "And where property is given to A. for life, with a Gift to A. for " power of appointment in favour of the testator's rela- power to "tions, and "there is no gift in default of appointment, appoint to 140 NEAR RELATIONS. testator's relations : — in default of appointment the relations are to be ascertained at the death of A. And A. may appoint to any persons within the statute at the date of the appointment. "Near" and "nearest" relations. ' if the power he not exercised, the gUft by implioation is ' to those who would have been the next of kin, aooordin^ ' to the statute, of the testator if he had died at the time 'of the cesser of the power by the decease of A., and 'not the survivors of those persons who were the next ' of kin of the testator at his death : whether the power 'be one of selection or distribution. (2 Sugd. Pow. '270, 6th ed.; Pope v. Whitcomhe, see Finch v. Bol- 'Ungsworth, 21 B. 112.) "And the donee of the power may appoint to any 'persons who would have been next of kin according 'to the statute at the date of the appointment, though 'they were not such at the death: although the power 'be one of distribution only. (Firitih v. HoUiniffStOorf'h, '21 B. 112.) " The same rule would seetu to apply, where the power ' is to appoint to relations, not of the testator, but of 'another person. " In Ham's Trust (2 Sim. N. S. 106), the gift was ' to 'the relaticais of my late wife, in such shares and pro- ' portions as they Would, ham been entitled in case she 'had died possessed thereof a spinster and intestate.' It 'was held that the gift did not vest in the next of kin ' of the wife at the death of the testator, but that the ' shares of such of her next of kin as died in the testa- ' tor's lifetime lapsed. Ne(xr Relations. — " A gift to ' near relations ' is equiva- 'lent to relations; i.e., next of kin according to the 'Statutes of Distributions. (Whitehorne v. Harris, 2 'Ves. sen. 527.) Nearest Relations. — "But a gift to 'nearest relations' "is equivalent to next of kin simplioiter, and excludes "those who would take by representation under the " statute, but (it would seem) admits all who are in "equal degree of consanguinity. {Smith v. Campbell, " 19 Ves. 400; [Re Nash,- 71 L. T. 5].) Relatives. — "Relatives" and "blood relations" are REPRESENTATIVES. 141 equivalent to relations. (Salusbury v. Denton, 3 K. & J. 529; Fielden v. Ashworthj L. E. 20 Eq. 410; Be Swan, [1911] 1 It. 405; Re Patterson, [1899] 1 Ir. 324.) As to illegitimate relations see ante, t^. 113, Chap. VIII. " Representatives." Mr. Hawkins observes — " A bequest to the ' representatives ' of any person is "ambiguous: it may either mean those who represent the "deceased legally ^ i.e., his executors or administrators, or "those who repr^ent him beneficially, i.e. (with respect " to personal estate) the persons entitled by virtue of the " Statutes of Distributions. But it is settled by the more "recent casra as a rule of construction, that — Rule. A bequest of personal estate to the " nepresenta- '' representatives," or " legal " or " personal " or pr^f^^' " legal personal representatives " of any one, ^ adnSTis- means, prima facie, executors or administrators, t^t^ors. {Saberton v. Skeels, 1 E,. & My. 587 ; Ee Craw- ford's Trusts, 2 Drew. 230 ; Kinff v. Cleaveland, 4 De G. & J. 477.) " Thus if the gift be to A. for life, with remainder as he "'shall by will appoint, and in default to his 'representa- "tives' (Saberton v. Skeels, 1 E. & My. 587; Dixon v. "Dixon, 24 B. 129), or to A. for life, with remainder to a. for life, " the children of B. ' or their representatives ' (Crawford's ^aMer t " Trusts, 2 Drew. 230; Hinchcliffe v. Westwood, 2 De G. children or " & Sm. 216), the property passes to the executors or sentatiTCs^" " administrators as part of the assets of the deceased, and "not directly to the next of kin: and the addition of the "words 'legal' or 'personal' does not vary the oonstruc- "tion." "I should say, that the conclusion to be drawn from Rule stated, the more modern, not unsupported by some of the earKer cases, is this: that under a gift simply to 'representa- tives,' 'legal representatives,' 'personal representatives,' 142 EEPEESENTATIVES TAKING BENEFICIALLY. and to executors and administrators, the hand to receive the money is that of the person constituted representa- tive by the Ecclesiastical Courts: but that such person will, in the absence of a clear intention to the contrary, take the property as part of the estate of the person whose representative he is, and not beneficially." (Hol- loway V. Clarkson, 2 Hare, 523; [per Wigram, V.-C.]) "What then is the ordinary and legal meaning of the term 'representatives'? Whom does the law regard as properly representing a deceased person with reference to personal property ? Certainly his executors or adminis- trators. They represent his person; they represent him in respect of his personal estate." {Crawford's Trusts, 2 Drew. 234; [per Kindersley, V.-C.]; [Re Ware, 45 Ch. D. 269.]) Mr. Hawkins continues — "As in the case of a gift 'to the executors of A.' " simplicUer, so under a bequest to 'representatives,' the " executors or administrators take the property in their "official capacity, and not beneficially. {Long v. Wat- "Jcinson, 17 B. 471 ; Re Seymour's Trusts, Johns. "472) (e). "Eepresenta- Exceptions. — " But the rule is not a strong one, and the beneficially " words in question may also mean the persons who take include a wife, "under the Statutes of Distribution in case of intestacy. but not a . . , . . husband. "In this sense the word representatives' is equivalent "to 'heirs' taking by way of substitution: it includes " a widow {Smith v. Palmer, 7 Hare, 225), but not a hus- "band {King v. Cleaveland, 4 De G. & J. 477). Gift to repre- " Thus where the gift is followed by a direction that flP"ni"fl^"i VPS share and "the representatives are to take 'share and share alike' share alike. " {Smith V. Palmer, 7 Hare, 225), or ' per stirpes and not "per capita' {Athertony. Crowther, 19 B. 448), it is clear " that the primary meaning of the word is excluded. And (c) In neither of these cases was the word "representatives " used. In Se Clay, 52 L. T. 641, also the words were "executors or administrators" (Ed.). GIFT TO A. OR HIS REPRESENTATIVES. 143 "if the gift be to the children of A. living at a given "period, and the representatives of such as shall he then " dead, share artd share alike, it seems that the latter words " will be held to apply to the representatives, as well as to "the first takers, the children {King v. Cleaveland, 4 De " G. & J. 477): though Price v. Strange (6 Madd. 159) is "contra (d). "So where the gift was ' unto and equally amongst my " personal representatives ' (Holloway v. Badclijfe, 23 B. "170), or 'to and amorUgst' the representatives {Baines ■"Y.Ottey,lMj. &K. 465). " So where a sum of money was given to A. in trust to " pay the income to his wife for life, and at her decease to ^'pay the trust moneys as she should by will appoint, and "in default to her personal representatives, it was held "that the husband was excluded. (Robinson v. Smith, "6 Sim. 47.)" It should, however, be observed that the husband was a trustee, and this seems to have affected the decision. Mr. Hawkins continues — " In Walter v. Mahin (6 Sim. 148), it was held that, " there being a gift to the executors of A. in one part of tihe " wiU, a gift to his legal representatives in another part "could not have the same meaning: sed qu." Mr. Hawkins' qusere is supported by Be Ware (45 Ch. D. 269). Immiediats Gift to A. or his Representatives. — Mr. Immediate Hawkins continues—" In Be Crawford's Trusts (2 Drew, ^-fj-e^rt- *"" " 234), it was said that, although a gift to A. or his repre- sentatives, " sentatives in remainder after a life interest means, prima 7rde applies' "facie, executors or administrators; yet that where the *"• "gift or legacy to A. or his representatives is immediate, "without any prior life estate, the primary meaning of "the word 'representative' is excluded: a distinction "founded on the cases of Bridge v. Abbott (3 Bro. C. C. "224), and Cotton v. Cotton (2 Beav. 67)." "In such {d) As to this, Beepost, p. 148 (Ed.). 144 GIFT TO A. OR HIS EEPRESENTATIVES. Whether the representa- tives take in the statutable propoi'tions. event the intended legatee could not, under any con- struction which, could be put on the words 'legal repre- sentatives,' derive any advantage from the bequest. .... And, therefore, it is highly improbable that the testator should intend that, if the intended legatee should die in his lifetime, the legacy should go to his execu- tors or administrators as part of the legatee's general assets, perhaps to benefit no one but the legatee's creditors. And this improbability is such as to furnish sufficient evidence, where the gift to A. or his legal representatives is immediate, ... of the testator's inten- tion to use the term ' representatives ' not in its ordinary legal sense, but as designating the persons who by virtue of the Statute of Distributions would be entitled to A.'s personal estate, if he had died intestate." {Crmuforct's Trusts, 2 Drew. 242; [pe/r Kindersley, V.-C.]) " But " continues Mr. Hawkins, " qu. how far Bridge v. " Abbott and Cotton v. Cotton are law at the present day." Bridge v. Abbott and Cotton v. Cotton were followed by Blay, J., in Re Thompson (55 L. T. 85), who said that he could find no considered authority overruling them. Mr. Hawkins continues — " In Walker v. Margpm of Camden (16 Sim. 329), it " was held that where the word ' representatives ' is used to "designate the persons taking the personal estate bene- " ficially, and words of severance are not added, the "representatives take as joint tenants and not in the "statutable proportions. But this case would seem to be "contrary to the rule laid down in Bullock v. Doiones "(9 H. L. C. 1); and under a similar gift to 'heirs' the "statutable proportions are held to be implied. (Supra, "gifts to 'A. or his heirs' [ante, p. 123].) Gifts to personal representatives are discussed in Jarman on Wills, pp. 1612 et seq. Rules compared. — Mr. Hawkins continues — " It may be " observed that the expressions considered in this chapter " fall into three classes, corresponding to the ideas of suc- " cession, of statutory kinship, and of consanguinity. RULES COMPARED. 145 " Thus (1.) ' Heirs ' taking by substitution, and ' repre- Heirs, repre- ' sentatives ' taking beneficially, include all who succeed 'to the personal estate of the deceased, but exclude the 'husband, wlio does not succeed, but appropriates. "(2.) 'Relations' and 'next of kin according to the Relations, 'statute' include all who take under the Statute of aooordingto ' Distributions except the wife, who is not of kin to the *^® statute, 'deceased. "(3.) 'Next of kin' and 'nearest relations' include Next of kin, ' all the nearest blood-relations in equal degree, but relations. ' exclude those who take only by reference to the 'statute. " It would seem that in all expressions falling under (1) ' and (2), the statutory proportions ought to be implied, in 'the absence of any expression indicating a contrary 'intention." H. 10 146 CHAPiTEE X. JOINT TENANCY,- ETC. Me. Hawkins observes — "Although it was once doubted whether there could " be a joint-tenancy of a legacy or residue (see per Lord "EJdon, Crooke. v. De Vandes, 9 Ves. 204), it has long " been settled that — Gift to several RuLE. or to a class, creates a joint nominatim tenancy. . . joint tenancy. A devise or bequest to several persons or to a class, without more, creates a The rule applies to gifts to children, issue, next of kin, &c. But not where the Statute of Distributions is referred to. Rule applies although the interests vest at different times. " But the rule does not apply to expressions which ' contain a reference to the Statutes of Distributions, as ''heirs,' 'next of kin according to the statute,' &o. ' {Supra, rule in Bullock v. Doufnes, 9 H. L. C. 1.) " The rule applies to gifts to a class, although the ' interests of members of the class vest at diSerent times . ' Thus, under a bequest to A. for life, with remainder to 'the children of B., the children in esse at the death of ' the testator take the whole interest given to the class as ' joint tenants, and as Inore children come into esse 'during the life of A., they take as joint tenants also. ' {McGregor V. McGregor, 1 De G. F. & J. 63; Een- ' worthy v. Ward, 11 Hare, 196.) A devise or bequest ' in this respect follows the analog'y of a conveyance to ' uses, and not of a feoffment at common law, in which ' the fact of the estates vesting' at different times prevents 'the creation of a joint tenancy. TENANCY IN COMMON. 147 " But it seems that in devises and bequests it is neces- " sary that the interests of all the joint tenants should be "the same, and that there cannot be a joint tenanciy "between a class, some of the members of whicih have "vested and others contingent interests. Therefore under But under a "a bequest to A. for life, with remainder to the children ^^ °„ ^^^^ „( "of B., if the interests of the children are not to vest a given age, the chudren "until a given age, e.g., 21, the children will take as take as "tenants in common, although if the interests vested at ^''^q^™ "birth they would take as joint tenants. {Woodgate "v. TJnmn, 4 Sim. 129; see McGregor v. McGregor, 1 " De G. P. & J. 63; Eenuforthy v. Ward, 11 Hare, 196.) " If lands be devised to two men, or two women, ' and Devise to two "the heirs of their bodies,' inasmuch as the devisees heirs of their "cannot have common heirs of the body, the devisees ''"dies. " take joint estates for life with several inheritances in "tail. (Co. Litt. 184a.) " And if the devise be to two men, or two women, ' their Deviseto two, " heirs and assigns,' the devisees take several remainders and assigns. "in fee. (Forrest v. WMtewat/j 3 Exch. 367 (a).) " The same construction is adopted, wherever the "devisees are in contemplation of law incapable of having "issue inter scj as if the devise be to two men and one "woman, or to a man and his sister or aunt. (Co. Litt. "184a.)" So also a devise to the first, second and other sons of Devise in A. for life or in tail is held to imply succession and to negative a joint tenancy. (Cradock v. Cradoclc, 4 Jur. N. S. 626; Hon^woodv. Honywood, 92 L. T. 814.) Bodies Corporate : Husband and Wife. — It should Corporations, also be remembered that before the passing of the Bodies Corporate (Joint Tenancy) Act, 1899 (August 9th, 1899), a corporation could not hold in joint tenancy (Co. Litt. 190a; Law Guarantee do. Society v. Bank of England, 24 Q. B. D. 406); and that before the («) In this case there was a gift over if both the primary devisees died without issue, so that they took the inheritance ia tail (Ed.). 10(2) 148 WOEDS OF SEVEEANCE. passing of the Married Women's Property Act, 1882, Husband a husband and wife took as tenants by entireties, and an -wife. apparently they do stiU if the devise is to them as Co-heiresses, trustees; also that a devise to the testator's heirs, if he leaves co-heiresses, makes them joint tenants and not coparceners. {Owen v. Gibbons, [1902] 1 Ch. 636.) Words of Words of Severance. — Mr. Hawkins continues: "The severance. "rule is excluded by any words which import distinctness " or plurality of interest among the objects of the gift. .""^'^^'^'if '" " Thus if the gift be to several, or to a class, ' equally,' "between," " or 'between' or 'among' them, or if the 'share' of " ^™°°?- " any one is spoken of, a tenancy in common is created. Gift to several "Respective." — "A gift to several persons 'respec- tively." "tively' creates a tenancy in common. " Thus, under a gift to the testator's brothers and sisters " ' or their executors or administrators respectively,' thef " brothers and sisters take as tenants in common. (Moore's "Settlement, 10 W. R. 315.) " But under a gift to a class, with a direction that the " share of a legatee dying before the period of distribution "shall go 'to his or her children respectively,' although "the primary legatees take as tenants in common, the "children of each legatee take inter se as joint-tenants. "(Hodgson's Trusts^ 1 K. & J. 178.) "In Ee Tiverton Market Act (20 B. 374) it was held " that under a devise ' to the children of A. and the heirs of "their bodies respectively,' the children take as tenants " in common in tail: but that under a devise ' to the chil- "dren of A. and the heirs of their respective bodies,' the "children take as joint-tenants for life with several in- "heritances in tail." [Re Atkinson, [1892] 3 Ch. 52.] " The Court always strives if possible, to hold that a gift does not create a joint tenancy." (Per Joyce, J., in Bennett v. Houldsworth, 104 L. T. 304.) Compound Any indication of an intention to divide the property creates a tenancy in common; but where there is a gift to a compound class, as a bequest of the income of a fund to GIFT TO CHILDREN OP A. AND OF B, 149 A. for life and at his death to divide the fund between his children then living and the issue of children then dead, the issue of a deceased child to take the share which their parent would have taken if living, it seems that there is a rule of construction that the words of severance only refer to the primary class and that double words of severance are required to make the issue of a deceased child take between them as tenants in common {Penny v. Clarice, 1 D. F. & J. 425; Coe v. Bigg, 1 N. R. 536; He Yates,, [1891] 3 Ch. 53; Jarman on WiUs, p. 1794), but the existence of the rule has been doubted. Gifts to Children per Capita. Rule. Under a devise or bequest to the children Gift to the J,. ip-n J , • . ^ „ . children of A. or A. and or H. as tenants m common, prima facte and of b.: the children take per capita, not per stirpes. {Lady fA°per capita, Lincoln v. Pelham, 10 Ves. 166.) not per sUrpeZ The rule is the same where the gift is to A. and the children of B. {Butler v. Stratton, 3 Bro. C. C. 367; \_Kekewich v. Barker, 88 L. T. 130; Heron v. Stokes, 2 Dr. & War. 89.]) " The cases of Barnes v. Fatch (8 Ves. 604), Lady Lincoln v. Pelham (10 Ves. 166), and Rickabe v. Gar- wood (8 Beav. 579), decide that a fund is to be distri- buted per capita and not per stirpes, when it is directed to be paid on a particular event, in such cases as the following ; namely, where a fund is to be divided between the families of my brother L'. and my sister E.; where one-fourth of a residue is to be paid to the younger children of N., and one other fourth part to or among the younger children of S.; where a legacy is to be paid between and amongst the children of P. and the children of R. In all these instances the Court has determined that the distribution is per capita and not per stirpes." {Abrey v. Newman, 16 B. 433; [per Romilly, M. R.]) 150 GIFT TO CHILDREN IN KEMAINDEE. Gift to " the children of A. and B.," whether a gift to B. or to his children. Gift to the Children of A. son (19 B. 146), the testator gave to 'A. an annuity of 60?. a year out of his Bank stock, ' and directed that the annuity should not be sold till after ANNUITY HELD PERPETUAL. 169 "the death of A. and his wife, nor until their youngest "child should attain twenty-one: it was held that the " annuity was perpetual. " In Hedges v. Harpur (3 De G. & J. 129), an annuity " was igiven to each of the testator's daughters, and, after " their respective decease, to their children respectively, " share and share alike, witii a direction that if any or " either of the daughters should die without issue, the " annuity should cease and fall into the residue: it was "held that the annuities were perpetual, the latter direc- " tion importing that the annuity was not to cease unless "the daughter died without issue, and also that it was to "fall into the residue, if at all, as an entire fund. "So, in Mansergh v. Campbell (3 De G. & J. 232), "where the annuity was given to A. for life, and after " her decease to her children as tenants in common, with a " direction that on the youngest child attaining twenty- " one, the said annuity should be sold, and the proceeds "divided among the children: the annuity was held " perpetual, inasmuch as if the children took for life only, " there being no survivorship between them, the sale would "be of 80 many separate annuities." "As a general rule there can be no doubt that the gift ^"^7) "^-'^ , ■ A • -I. n 1 ■ n • 1 T-n ' Statement Of o± an annuity to A . is a gift of the annuity during the life the three of A. and nothing more. It is equally free from doubt '^^^^ that where the testator indicates the existence of the annuity without limit after the death of the person named, and therefore implies that it is to exist beyond the life of the annuitant, then the annuity is presumed to be a per- petual annuity. It is equally without doubt that there are cases in which the Court has come to the conclusion that the gift is not really that of an annuity, but the gift to a person of the income arising from a particular fund without limit, and there the Court holds that the unlimited gift of the income is a gift of the corpus from which the income arises." {Per Fry, J., in Blight v. Hartnoll, 19 Ch. D. at p. 296.) Annuities form the subject of Chapter XXXI. of Jarman on Wills. 170 CHAPTEE XII. DEVISES WITHOUT WOKDS OF LIMITATION. I. Existing Law. Mr. Hawkins observes that the old rules " are desti'oyed " or rendered unnecessary by the 28th section of the Wills "Act, which enacts that — Existing law. RuLE. In wiUs made or republished on or after devise passes Jan. J St, looOj the fee. ^ devise of lands, &c., without words of limita- tion, passes the fee simple, unless an intention appear to the contrary. " That where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention ehall appear by the will." (Wills Act, s. 28.) Mr. Hawkins pbserves — " This section applies only to devises of previously " existing estates or interests, and not to the devise of an " estate created by the will . (Nichols v . Haivlces, 10 Hare, " 342.) Thus a devise of a rent-charge vested in the tes- " tator, without words of limitation, passes the fee simple: "but a devise of a rent-charge, not existing before, to a " person indefinitely, confers only an estate for life. (lb.)" The efiect of the section was considered in Gravenor V. Watkins (L. R. 6 C. P. 500). OLD LAW, ESTATE. ^''l II. OU Law. Mr. Hawkins' rules in relation to the old law are as foUows:^ — In wills made before Jan. 1st, 1838, oiaiaw. Rule. A devise of lands to A., simpliciter, lands, &o. to confers an estate for life only, unless an intention esta^e^or ufe appear to the contrary. °^'^' The rule is the same where the devise is of "lands, tenements, and hereditaments." (^Hope- well V. AcMand, 1 Salk. 239.) The rule extends to a devise of manors, farms, rents, tithes, or any kind of hereditament. "Estater "The word 'estate' is, properly speaking, ambiguous: " it may either mean the land itself or the testator's " interest in it; but the Courts, in order to remedy to some " extent the mischief caused by the preceding rule, " requiring words of limitation to pass the fee, have leant "strongly towards considering the word 'estate' as con- "veying tlie absolute interest: and it is a rule, observed " more strictly in recent times, that — Rule. In wills made before Jan. 1st, 1838, oidiaw. The word " estate " is sufficient to pass the fee Wf^^^^^l °' simple of land, although accompanied by words of ^^ra^^wor^' locality or occupation. °^ ^°^^^Ia^ The rule is the same where the word is " estates," in the plural. Thus a devise of the testator's estates in the occupation of A. in the parish of B. to C, without more, passes the fee simple. ( White v. Coram, 3 K. & J. 652.) The word must be in the operative part of the devise (Hill V. Brown, [1894] A. C. 125). 172 Old law. DcTiee to A., he paying 10/., gives the fee simple : devise to A., charged with 101., gives a life estate only. Charges. " The effect of a charge in enlarging an indefinite devise " is fully settled by authority, and it is the rule that — Rule. In wills made before Jan. 1st, 1838, An indefinite devise is enlarged to (a) a fee simple b}^ the imposition of a charge, however small, on the person of the devisee, or on the quantum of interest devised to him : but not if the devise is merely subject to a charge. (Doe d. Stevens v. Snellinff, 5 East, 87; Doe d. Sams v. Garltck, 14 M. & W. 698 ; Burton v. Powers, 3 K. & J. 170.) Thus, a devise of lands to A., he paying 10/. to B., passes the fee simple; but a devise of lands to A., subject to a charge of 10/., passes only an estate for life. Old law. Frogmorton v. Bolyday. Devise to A. indefinitely, with a gift over on death under 21 ; A. takes the fee simple. Gift over on Death under Age. " A gift over in the event of the devisee dying under age " is also held to show an intention to give the fee simple: ■' and it is a rule that — Rule. In wills made before Jan. 1st, 1838, If lands be devised to A. indefinitely, with a gift over in the event of A. dying under twenty- one, A., if he attains that age, takes the fee simple. [Frogmorion v. Holy day, 3 Burr. 1618; Doe d. Wright v. Cundall, 9 East, 400 ; Burke v. Annis, 11 Hare, 232.) Challenger v. Shepherd. " If , in a vs^iU prior to 1838, lands be devised unto and to " the use of trustees and their heirs in trust for A. indefi- (o) This word is "hy" in the original edition (Ed.). CHALLENGER V. SHEPHAED. 173 "nitely, the estate of A. is not enlarged to a fee simple, "because the estate taken by the trustees is (see next " chapter) co-extensive only with the trust to be per- " formed, and is therefore limited to an estate during the " life of A. But if the other purposes of the trust require "the whole legal fee simple to be in the trustees, the "equitable estate of A. is enlarged accordingly: and it " is a rule that — Rule. In wills made before Jan. 1st, 1838, ^'^^^•^. TK1111-1 • c» Challenger v. if lands be devised to trustees m trust lor A. shepimrd. indefinitely, and the purposes of the trust require ^^^^16^8?^ the whole leeral fee to be in the trustees, A. takes fee simple to c ' trustees in the beneficial interest in fee. ( Challenger v. t^^^t for a. . m T~k f^ • T ■ ^ , -A., taiies tils Shephard, 8 T. R. 597, marginal, note ; Knight v. beneficial Selby, 3 Man. & G. 92 ; Moore v. Cleghorn, 12 ''■^'''''''■^'^'^■ Jur. 591, per Lord Cottenham ; Smith v. Smith, 31 L. J. C. P. 25.) Thus, if the devise be to trustees in trust to pay the testator's debts, and subject thereto in trust for A., A. takes an equitable estate in fee simple. Mr. Hawkins' observations on these rules are omitted. 174 CHAPTER XIII. ESTATES OF TRUSTEES. Me. Hawkins observes — " Two questions may arise respecting the nature and "quality of the estate taken by trustees under a devise to "them: 1st, What is the quantum of estate and interest " beneficial as well as legal, vested in the trustees for the " active purposes (if any) of the trusts reposed in them: "and, 2nd, What becomes of the legal estate (if any) re- "maining after the active purposes of the trusts are satis- "fied; does it remain in the trustees, or pass from them to "the cestuis que trust; in other words, are the estates of " the persons beneficially interested equitable or legal ? " These questions may to some extent be considered "separately. "I. As to the quantum of estate or interest taken by "the trustees for the active purposes of the trust. " The distinction between paying the rents and profits to " a person and permitting him to receive them is con- "sidered to mark the difference between an active and "passive trust: and it is a rule that — Devise to A., RuLE. A devise of real estate to a trustee, in in trust to ' pay the rents trust to fia?/ the rents and profits to A., vests the A. the legal legal estate in the trustee. not a devise Bit a deviso to a trustee, in trust to permit A, TofernMT^^ ^^ Teceive the rents and profits, vests the legal the''rent7 estate in A. {Doe d. Leicester v. Biggs, 2 Taunt. 109 ; Doe v. Bolton, 11 Ad. & Ell. 188 ; Barker v. Greenwood, 4 M. & W. 421.) TRUSTS TO PAY RENTS, ETC. 175 "It is now clearly settled, that where an estate is limited to trustees, and the words used are ' in trust to pay to' a specified person the rents and profits of the land, there the trustees take the legal estate; because they must receive, before they can make the required payments: but where the words are 'in trust to permit and suffer A. B. to take the rents and profits,' there the use is divested out of them, and executed in the party, the pur- poses of the trust not requiring that the legal estate should remain in them." {Per Parke, B., Barker v. Greenwood, 4M. &W. 429.) Mr. Hawkins continues — " A devise in trust to pay unto or else permit and suffer Trust to pay "A. to receive the rents and profits, vests the legal estate and^si^er!" "in A., and not in the trustee. {Doe d. Leicester v. "Biggs, 2 Taunt. 109.)" Jessel, M.R., seems to have disapproved of Doe v. Soef-Biggt. Biggs (see 20 Ch. D. at p. 478); but he followed it in Baker v. White (20 Eq. 166); Doe v. Biggs was treated as a binding authority in Be Adcrnis and Perry's Con- tract ([1899] 1 Ch. 554); but the rule will not be ex- tended {Be Lashmar, [1891] 1 Ch. 258). Doe v. Biggs does not apply where the devise is to A. and B. in trust to pay the income to or permit it to be received by A. {Re Tanqueray-Willaume and Landau, 20 Ch. D. 465.) Trust to permit A. to receive Net Bents. — Mr. Haw- kins continues — "But a devise to trustees, in trust to permit A. to Trust to per- " receive the net or clear rents and profits, vests the legal theweirenta. " estate in the trustees: it being presumed that the trustees "are to receive the gross rents, and after payment of out- " goings to hand over the net rents to the person entitled. ' {Barker v. Greenwood, 4 M. & W. 421; White v. "Parker, 1 Bing. N. C. 573.) " So if the trustees are directed to pay taxes and repairs " {Shapland v. Smith, 1 Bro. C. C. 75), or to pay all out- " goings, to repair and to let the premises {White v. "Parker, 1 Bing. N. C. 573), they take the legal estate. 176 INDEFINITE TEEMS. " And where the devise was to trustees in trust to permit " the testator's widow to receive the rents and profits, and " it was declared that her receipt for the rents ivith the " approbation of the trustees should he good, it was held "that the legal estate was in the trustees. {Gregory v. "Render son, 4 Taunt. 772.) Devise in trust to per- mit A. to receive the rents for her separate use, gives the leg-al estate to the trustee. Trust for Separate Use. — "Wherever the beneficial " interest is given to the separate use of a married woman, " the trustees are held to take the legal estate for her pro- "tection. Thus, a devise to trustees in trust to permit "A. to receive the rents and profits for her separate use, "vests the legal estate in the trustees. (Harton v. "Eartort,7 T. R. 652.)" Indefinite terms. Old law. Indefinite Terms of Years. — " It has been often deter- mined that in devises to trustees it is not necessary that the word 'heirs' should be inserted to carry the fee at law; for, if the purposes of the trust cannot be satisfied without having a fee, Courts of law will so construe it." (Per Lord Hardwicke, 1 Ves. sen. 491.) "Thus," con- tinues Mr. Hawkins, "a devise (in a will prior to 1838) unto and to the use of A . in trust for B . and his heirs, gives A. the whole legal fee simple. " In some oases, however, a devise to trustees in trust out of the annual rents and profits to pay debts or to 'raise a sum of money, was held to give the trustees, ' not the fee simple, hut an estate for an uncertain termi ' of years, sufiicient to raise and pay the required amount: 'a construction based on the authority of Cor doll's Case. ' (Cro. El. 316.) Thus, in Doe d. White V. Simpson ' (5 East, 162), a devise to trustees in trust out of the 'annual rents and profits to pay several annuities and a 'sum of 800L, with a devise over after such payment, ' was held to give the trustees an estate only for the lives ' of the annuitants, together 'with a term of years suffi- 'cient to raise the 800Z. And in Aokland v. Lntleyi '(9 Ad. & Ell. 879; [AcMand v. Fring] 2 M. & Gr. '937), a devise to trustees in trust to pay a debt and WILLS ACJ\ S. 30. l'^"' "legacies, to be paid as soon as tlie clear rents and profits "would admit, was considerled to vest in the trustees no "more than a chattel interest, determinable when the debt "and legacies were paid. But it seems probable that "in similar cases (even in wills prior to 1838) the "trustees would now be held to take the fee simple, and "that the construction giving an uncertain term of years "to trustees would not now be followed. " And, with respect to wills made or republished on or Existing law. "after Jan. 1st, 1838, sect. 30 of the Wills Act enacts, ^^^•^"*' "that in no case are trustees to take an indefinite term of Trustees not "years for the purposes of the trust." Sdefinite* Stat. 1 Viot. c. 26, s. 30. " That where any real estate term of years, (other than or not being a presentation to a church) shall be devised to any trustee or executor, such devise shall be construed to pass the fee simple or other the whole estate or interest, which the testator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him, expressly or by implication." Mr. Hawkins continues— " The meaning of this section is, that any devise, under " which before the passing of the Act a trustee would have " been held to take an indefinite or uncertain term of years, "shall now be construed to pass the fee. " II. As regards the disposition of so much of the legal Disposition of " estate as is not required to be vested in the trustees for iegai"eSate. "the active purposes of the trusts. " This question frequently arises in relation to the " operation of the rule in Shelley's Case . Thus, if lands be "devised to trustees and their heirs, in trust to pay the "rents and profits to A. for life, and after his decease in "trust for the heirs male of the body of A., the question " arises whether the remainder to the heirs male of the "body of A. is an equitable remainder, in which case it " will operate in conjunction with the equitable life ©state "of A. to vest in A. an estate in tail male, or a legal "remaindet, in which case the heir male of the body will H. 12 178 DOE V. NICHOLLS. DtevtNicholh. Trustees take only 80 much of the legal estate as the purposes of the trust require. Trust limited to the life of A. Trust hmited to the mino- rity of A. "tako by purchase: and this question depends on another, "viz., whether the whole legal fee simple is vested in the " trustees, or only an estate during the life of A., commen- "surate with the active purposes of the trust, " It is settled that, in such a case, the legal estate or "use executed in the trustees is, in the absence of a con- "trary intention, limited by implication to the life of A., ■' and the remainders over are legal remainders; it being " established, as a rule of construction (qualified, however, " as regards wills made or republished since 1837, by the ■' operation of the 31st section of the WiUs Act hereafter 'mentioned), that, — Rule. Where real estate is devised to trustees, although with words of inheritance, primd facie the trustees take only so much of the legal estate as the purposes of the trust require. {Doe d. Player v. Nicholls, 1 B. & Cr. 3;i6 ; Watson v. Pearson, 2 Exch. 581 ; Blagrave v. Blagrave, 4 Exch. 550.) Thus, if lands be devised to trustees and their heirs, in trust to pay the rents and profits to A. for life, and after his decease in trust for B., the trustees take the legal estate only during the life of A., and the estate of B. is legal and not equit- able. So if the devise be to trustees and their heirs, in trust to permit A. to receive the rents and profits for life, and after his decease in trust for B., the trustees take no estate. " So," continues Mr. Hawkins, " i£ (in a wiU prior to " 1838) lands be devised to trustees and their heirs, in " trust to apply the rents and profits during the minority " of A. for his benefit, and when A. shall attain the age " of twenty-one, in trust for A. and his heirs, the trustees "take the legal estate only during the minority of A. " (Doe d. Flayer v. Nicholls, 1 B. & Cr. 336.) ESTATE CO-EXTENSIVE WITH TRUSTS. 179 "And if the devise be to trustees in trust to pay the Trust for life "' rents to A. for life, and afterwards to apply the rents for during "the maintenance of the children of A. during their minority "minority, and when the youngest child shall attain "twenty-one, in trust for the children of A. in fee, the " estate of the trustees is limited to the life of A. and the " minority of the children. (Doe v. Cafe, 7 Exch. 675.)" " It may be laid down, as a general rule, that where an -Rvle stated, ■estate is devised to trustees for particular purposes, the legal .estate is vested in them as long as the execution ■of the trust requires it, and no longer, ajid therefore, as soon as the trusts are satisfied, it will vest in the person beneficially entitled to it." (Doe v. Nicholls, 1 B. & Or. 336; [per Bayley, J., at p. 342.]) " It is conceded on both sides, that the rule laid down by this Court in the case of Watson v. Pearson is per- fectly correct, namely, that ' where the purposes of the trust ■on which an estate is devised to trustees are such as not to require a fee in them; as, for instance, where the trust is to pay annuities, or to pay over rents and profits to a party for life; there, if subject to the specified trusts, the estate is given over, the parties taking under such devise over have been held to take legal estates; the estate given to the trustees (even when given with words of inheritance) having been in such cases taken to have been meant to be co-extensive only with the trust to be performed.' ' " Those cases, however, in which it is laid down that the Courts look solely to the trusts to be performed, even where there are words of inheritance, must be read with this qualification, that due effect is to be given to the language of the will, unless we can collect from the con- text an intention to give a more limited estate." (Blagrave V. Blagrave, 4 Exch. 550; [per Parke, B., at p. 568.]) Contrary Intention. — Mr. Hawkins continues: "The "rule may of course be excluded by a clear intention to " vest the legal estate in the trustees, irrespective of any "active trusts reposed in them. 12(2) 180 DOCTRINE OF ATTEACTION. Devise to the use of A. in trust for B. Devise of copyholds to A. in trust forB. Doctrine of attraction. Grift over by way of direct devise. " Thus, if lands be devised unto and to the use of A. and " his heirs in trust far B. and his heirs, the fee simple of " the use is executed in A., and B. takes only an equitable- " estate. (Doe v. Field, 2 B. & Ad. 564.) " So, if copyhold lands (which are not within the Statute- "of Uses) be devised to A. and his heirs in trust for B. " and his heirs, A . takes the legal estate . And in Houston "v. Hughes (6 B. & Or. 403), it was considered that, " under a devise of freehold and copyhold lands to A. and "his heirs in trust for B. and his heirs, the circumstance "that A. took the legal estate in the copyholds was an " argument in favour of his taking the legal estate in the^ "freeholds." The "doctrine of attraction" was adopted by Lord RomiUy, M. E., in Baker v. Parson (42 L. J. Ch. 228),, but rejected by Jessel, M. R., in a case on the same will (Baker v. White, L. E. 20 Eq. 166, following a* decision of the Court of Common Pleas on the same will^ Doe d. Baker v. Winchester, 15 L. T. 0. S. 68). In. Ec Townsend's Contract ([1895] 1 Ch. 716), Stirling, J., accepted the view of Jessel, M.E. (a). Mr. Hawkins continues — " But even where, as in the above cases, an unequivocal " intention appears to vest the legal estate in the trustees- " in the first instance, yet if, after a particular estate, there " be a gift in remainder by way of direct devise, the estate- " of the trustees may be restricted by implication to the- "continuance of the particular estate. As if the gift be, " ' I devise Whiteacre unto and to the use of A. and his " heirs in trust for B. during his life, and after his decease- "7 devise Whiteacre to C "So, in Doe d. Woodcock y. Barthrop (5 Taunt. 382),. "where copyhold lands were devised to A. and his heirs "in trust for the separate use of B. for life, and subject "thereto the testator devised the premises to such uses as "B. should appoint: it was held that the legal estate in "the trustee was limited by implication to the life of B." (a) The rule in Genery v. Fitzgerali the doctrine of attraction (Ed.). , ante, Chap. IV., is another type of TRUSTS TO PRESERVE. 181 "The rule of construction .... is, that the trustees take estates co-extensive with the trusts they have to perform; and that if the performance of the trust require only that the legal estate shall he vested in them for a limited term, they take it only for that period." (Per 'Quain, J., in Stevenson v. Mayor of Liverpool, L. R. 10 Q. B. at p. 85.) Trusts to preserve Contingent Remainders . — Mr. Haw- Trusts to kins continues: "The rule applies to limitations to go^t^igent "trustees in trust to preserve contingent remainders, remainders. ^' Thus, if lands be devised to A. for lifie, with remain- ^' der to trustees and their heirs in trust to preserve con- ■"tingent remainders, with remainder to the first and "other sons of A. in tail, and there are no other con- ■"' tingent remainders subsequently limited, the estate of " the trustees, though not expressly limited to the life of ^'A., will be restricted to that period by implication, " since the purposes of the trust cannot continue longer : " and the remainders over will be legal and not equitable. " If, however, there were among the subsequent limita- ^' tions contingent remainders which would not necessarilj- "vest (if at all) during the life of A., the estate of the "trustees would of course not be restricted to that period. "And it seems that if lands be devised to A. for life, pefiseto « • 1 • 1 n 1 • 1 ■ • tmstees m ; With remainder to trustees and their heirs m trust to trust to pre- " preserve contingent remainders, with remainder to the remainder to " first and other sons of A. in tail, with remainder to such such persons, "persons and for such estates as A. should appoint, the should " trustees would be held to take the legal fee simple, inas- appoint, "much as A., in execution of the power of appointment, "might introduce contingent remainders whitih would re- " quire protection. (Per Lord Kenyon, Doe v. Hiciks, "7 T. R. 437; Venables v. Morris, ib. [342, 438].) " The application of the rule which restricts the estate " of the trustees to preserve contingent remainders, to the " period during which the remainders would require such "'protection, is not excluded by the fact, that the result of ■" the estate of the trustees being so restricted is to prevent 182; EECUEKING TEUSTS. Devise to A. for life, renminder to trostees to preserve, re- mainder to the heirs of the body of A. " the supposed oontingent remainders from taking effect as- "such, which they would have done if the estate of the "trustees had not heen restricted. Thus, if lands be- "devised to A. for life, with remainder to trustees and "theit- heirs in trust to preserve contingent remainders,, "with remainder to the heirs male of the body of A., or "to the issue of A., the estate of the trustees will be " limited to the life of A., although the result is that the- "remainder to the heirs of the body or issue of A., being "a legal remainder, wiU vest in A. himself, under the "rule of Shelley's Case, whereas if the trustees took the- "fee simple it would have taken effect as a contingent "remainder. (Nash v. Coates, 3 B. & Ad. 839; Haddel- "seij V. Adams, 22 B. 266.) " K lands be devised to trustees upon trusts not re- " quiring the legal fee to Vest in them, and there is nO' "trust expressly declared to preserve contingent remain- " ders, it would appear that the circumstance of contingent "remainders being found among the limitations of the " beneficial interest is not sufficient ground for holding "the trustees to take the legal estate in order to preserve "such contingent remainders. (See per Parke, B.,, "Barker v. Greenwood, 4 M. & W. 421; [Cunlvffe v. "Brancker, 3 Ch. D. 393 (6)].) Eeourring trusts. Harton v. Harton. B,ecwring Trusts. — " The general rule is subject to an- " exception, established by the case of Harton v. Harton " (7 T. R. 652), viz., that where there are recurring trusts- " which require the legal estate to be in the trustees, with "intervening limitations which, taken alone, would vest " the legal estate in the persons beneficially entitled, and " there is no repetition, before each of the recurring- "trusts, of the gift of the legal estate to the trustees, "the legal estate is held to be in the trustees through- " out, and the intermediate estates are equitable and not "legal. (i) This argument could not be used in oases within the Contingent Remainders Act, 1877 (Ed.). RECURRING TRUSTS. 183 " Thus, if the devise be to trustees and their heirs in ' trust for the separate use of A. for life, with remainder ' in trust for the heirs of the body of A., with remainder 'in trust for the separate use of B. for life, with re- 'mainder in trust for the heirs of the body of B., inas- 'much as the trusts for separate use require the legal ' estate to be in the trustees, the legal estate is held to ' be in them throughout, and the limitation to the heirs 'of the body of A., being an equitable remainder, vests 'in A. an estate tail under the rule in Shelley's Caset; ' whereas if the limitation to the separate use of B . had ' been omitted, the legal estate in the trustees would have 'stopped at the death of A., and the limitation to the 'heirs of the body of A., being a legal estate, would 'have 'taken effect as a contingent remainder. (Hartcm 'v. Uarton, 7 T. K. 652; Hawkins v. Luseambe, 2 Sw. '391, per Lord Eldon; Brown v. Whiteway, 8 Hare, '145; Toller v. Attmod, 15 Q. B. 929.) " In Toller v. Attwood (15 Q. B. 929), it was doubted ' whether in such a case the legal estate in the trustees ' would extend beypnd the last trust for the separate use ' of a ffme covert ; in other words, whether the limitation 'to the heirs of the body of B., in the case supposed, if 'followed by no other limitation requiring the legal ' estate to be in the trustees, would be equitable or legal. " In Brown v. Whiteway (8 Hare, 145), the devise 'was to trustees in trust to pay the rents to A. for life, 'with remainder in trust to and for the use of B. for ' life, with remainder in trust to and for the use of such 'persons, &c. as B. should appoint, with remainder in ' trust for the separate use of C . for life, with remainder ' in trust to and for the use of the heirs of the body of 'C, with vested remainders over not requiring a legal ' estate in the trustees: it was held that C. took an equit- ' able estate tail, the legal estate being in the trustees 'throughout: but qu. whether the trustees were held to ' take the fee in order to preserve contingent remainders ' "which naight be created under the power of appoint- 184 TRUSTS TO RAISE MONEY. Trusts to raise money, &o. Indefinite term of years. Old law. " ment, or solely by reason of the limitation to the " separate use of C." " Where there are recurring occasions for the exercise of active duties by the trustees and no repeated devises to them to enable them to perform their duties, the legal estate, if once in the trustees, is to be deemed to be vested in them throughout, notwithstanding the duration in thei meantime of what would but for the recurring duties be construed as uses executed in the beneficiaries." {Per Lord Davey in Van Gndten v. Foxwell, [1897] A. C. at p. 683.) Trusts to raise Money i dc. — Mr. Hawkins continues— " The rule which restricts the estate taken by trustees to " the quantity necessary for the performance of the trusts " was formerly pushed to a great length, by the adoption " of the inconvenient constructions of an indefinite term "of years, and a determinable fee. " First, where the estate was limited to trustees simpli- " citer, or to trustees and their executors or administrators, " upon trust out of the annual rents and profits (only) to "raise a given sum of money, pay debts or legacies, &c., " with a direct devise over of the beneficial interest: it was "held that the trustees took the legal estate only for an " uncertain term of years sufficient to raise the required "sum, and that the estates of the devisees in remainder " were legal estates. The cases in which this construction " was adopted are Doe v. Simpson (5 East, 162), where the " devise was to trustees and their executors in trust out of "the rents and profits and arrears due to pay certain "persons 800Z.; Achhndv. Lutleij (9 Ad. & Ell. 879), " a devise to trustees in trust to let the premises, and out "of the rents to pay a debt and legacies, to be paid as "soon as the clear rents would admit, with a devise over "from and after payment of the debts and legacies; and " Heardson v. Williamson (1 Keen, 33), a devise to "trustees and their executors in trust to let, and apply "the rents in payment of mortgage debts, tiU the whole "should be paid by gradual receipt of the rents, with a DETERMINABLE FEE. 185 '■'devise over after the debts should have been paid. [See also Collier v. McBean, L. R. 1 Ch. 81.] " These cases have not been overruled, but the con- ■'struetion which gives an uncertain term of years has " often been disapproved of, and it is scarcely probable " that it would now be adopted, even in a will made before "1838. The 30th section of the WiUs Act has abolished AboUshedby "it, as regards wills made subsequently. ^30 " ' " Secondly, where the devise was to trustees and their DetermiBable "heirs, in trust to pay debts or to raise a sum of money, *^'^- " with limitations over, it was considered that the trustees " might take the fee simple only until the money required "had been raised, and when it should have been raised " without a sale, that the legal fee in the trustees would "determine, and the devisees over take legal estates. " Thus, in Glover v. MoncMon (3 Bing. 13), where the "devise was to trustees and their heirs in trust to raise "5,0001., with limitations over, it was held that the "trustees took the fee siimple until the 5,000L shouldhave " been raised. " But the construction which would give to the trustees "in such cases a determinable fee has been negatived by " the cases of Doe d. Davies v. Davies (1 Q. B. 430), and " Blagrave v. Blagrave (4 Exch. 550). In Doe v. Davies, "the devise was to trustees and their heirs in trust for "several persons successively for life, with remainder to " the use of the trustees in trust to preserve, &c., with "remainder over; and upon further trust by mortgage or " demise, or out of the rents and profits, to raise 801., to be "applied in payment of the testator's debts: it was held " that the trustees! took the legal fee, not determinable upon "the raising of the 80Z. Patteson, J., said (p. 438)": " If the devise be for purposes which are to last only for a certain time, the use of the word heirs will not give a fee; the devise will be cut down to the time necessary for those purposes. But if a fee be given in terms, with trusts which by their nature extend over an indefinite time, it is not so: if no particular time can be fixed at which the trusts shall end, the estate cannot be cut down. 186 DETERMINABLE FEE. Here the trustees are to raise 801. by mortgage or demise- of the real estate, or from the rents and profits, or by such other ways and means as they shall think fit. It is not said when the sum is to be raised and paid; and if they can deal with the legal estate in part for this pur- pose, and we cannot say what part, they must have the whole." Mr. Hawkins continues — "And these remarks were approved by Lord Campbell in Poad v. Watson (6 EH. &B1. 616(c)). " In Blagrave v. Blagrave (4 Exch. 550), the devise was to the trustees and their heirs, in trust out of the rents and profits to pay a jointure of 700Z. and certain annui- ties, and to raise 10,000Z., with power, if the personal estate should be insufficient to pay debts and legacies, to raise the deficiency by mortgage of the real estate; and subject thereto in trust to pay the rents to A. for life, and after his decease to stand seised of the estates 'tO' the uses following, viz., to the use of B. for life, &c.:' it was held that the trustees took the whole legal fee simple,, and that the estates in remainder were equitable, inas- much as no certain period could be fixed at which the legal estate should go over from the trustees — notwith- standing the manifest intent of the testator that the devisees in remainder should take legal estates. " These cases appear to establish that, even in a will made before 1838, a devise to trustees in trust to pay debts or legacies, or to raise a sum of money, vests in them the legal fee simple, and not an estate determinable whenever the purposes of the trust shall have been satisfied. " In Poadv. Watson (6 Ell. & Bl. 618, Exch. Ch.), the devise was to trustees upon trusts requiring the legal estate to continue in them only during the lives of certain persons; but the wiU gave to the trustees a power of reimbursement out of the premises devised to them . The trustees having mortgaged the property devised for a (c) This paragraph was cited in Watkins t. I'rederiek, 11 H. L. ,G. at p. 364. TRUSTS TO PAY DEBTS. 187 " term of years to secure 300L due to them on the trust " account, it was held that the term was well created, the " trustees either taking the fee simple or a power to mort- The case of Collier v. Walters (L. E. 17 Eq. 252) seems to have disposed of the doctrine of the determinable fee; the singTilar circumstances under which this case came before Jessel, M. E,., are stated in his judgment. As to sect. 31 of the Wills Act, see post, p. 192. Trusts for Payment of Bebts. — Mr. Hawkins con- Trusts for tinues: "It may be considered as settled that, in wills debts. " made as well before as since 1838, a devise to trustees in "trust to pay the testator's debts vests in them the abso- "lute legal fee. " But, on the other hand, a mere cJiarge of debts on "the lands devised, the trustees not being* directed to "pay the debts, does not enlarge the estate of the trus- "tees(flf). (Kenrick v. Lord Beauclerk, 3 B. & P. "178.)" These paragraphs are quoted with approval by Kay, J., in Marshall v. Ginffell (21 Ch. D. at p. 797). Mr. Hawkins continues — "In Smith Y. Smith (11 C. B. N. S. 121), the testa- (rf) " It does not appear that the 14th and 16th section* of the Act „„ , , " 22 & 23 Vict. 0. 35 (Property and Trustees' Kelief Amendment Act), 22 & 23 Vict " will have any effect on the construction of the estates taken by trustees o. 35, as. 14 — "under a devise to them. The 14th section enacts that where the 18, as regards " testator shall have charged real estate with debts, legacies, or the t^ estates I. 1 7 n 1 T . -1.1 . 01 trustees. ' ' raismg of a sum of money, and ' shall have devised the estate so ' ' charged to any trustee or trustees for the whole of Ms estate or interest " therein,' the trustees shall have power to raise the money by sale or " mortgage. The 16th section enacts that it the testator having created " such a charge shall not have devised the estate ' in such terms as that " his whole estate or interest therein shall have become vested in any " trustee or trustees,' the executors shall have the like power of raising " the money. The question, what estate the trustees take, appears to be " left untouched by these sections." (Note by Mr. Hawkins.) It would also seem to be the case that sect. 1 of the Land Transfer Act, 1897, is not intended to alter the construction of wOls upon this point (ED.)i ... 188 DIRECTION TO PAY DEBTS. What amuunts to a direction to the trustees to pay debts. 'tor by a will made before 1838 devised all his real 'estate to trustees 'in trust to and for the uses there- ' after mentioned, that is to say, after ^payment of my 'debts,' &c., the testator devised Whiteacre to A. B. ' without words of limitation : it was held that the words after payment of debts ' vested the legal fee in the 'trustees, and that A. B. took an equitable estate in ' fee in Whiteacre, and not a legal estate for life only . "In 8pence v. Spence (10 W. K. 605, C. P.), the 'testator, after directing his debts to be paid &?/j his ' executors, devised his real estate to trustees in trust to ' pay the rents to A. for life, and after his decease in trust 'for the right heirs of A., and appointed the trustees 'to be executors: it was held that the trustees took the 'whole legal estate, and therefore that A. had an equit- 'able estate in fee. The will was subsequent to 1837, ' but as the rents and profits were given to A. for life, ' the 31st section of the Wills Aot had no influence on ' the question . " The strongest case, however, on this point is Creaton 'v. Creaton (3 Sm. & G. 386), where it was held that ' under a devise to trustees in trust to pay the rents to 'A. for life with remainder in trust for B. in fee, a ' direction that the testator's debts should be paid (with- ' out saying by whom) at the beginning of the will, the " trustees being also executors,, was sufficient to vest in "the trustees the whole legal fee." This paragraph is quoted with approval by Kay, J., at 21 Ch. D. p. 796. Eef erring to Creaton v. Creaton, Spence v. Spence, and the later case of Marshall v. Gingell (21 Ch. D. 790), Chitty, J., remarked: "Although, then, in these three cases, the devisees clearly took the legal estate for the purposes of the partial express trusts, which were not commensurate with the fee or customary estate of inheritance, I think that this circumstance did not form the ground of the decisions; and that the principle to be extracted from them is to be found in the direction to pay debts." {Ee Brooke, [1894] 1 Ch. at p. 52.) TRUST TO PAY ANNUITIES. i89 Mr. Hawkins continues- — " But, of course, a direction to the executors and "trustees to pay the testator's debts will not give the " trustees the legal fee, where there is an express limita- '' tion of the estate to he taken by them; as if the devise "be to trustees expressly during the life of A. in trust "for him, with remainder to B. in fee simple. (Doe v. "Cla>-idge,6C, B. 641.) "And a direction that executors shall sell lands for " payment of debts, unaooompanied by a devise to them, "confers only a power and not an estate. (1 Sugd. "Pow. 128, 6th ed.; Doe V. Shotter, 8 Ad. & Ell. 905.) Trust to pay Annuities. — "In wiUs made before Trusts for " Jan. 1st, 1838, a devise to trustees and their heirs in Annuities, "trust to pay an annuity out of the annual rents and "profits only, and subject thereto in trust for A. in fee, "the annuity not being a charge on the corpus of the "land, vests the legal estate in the trustees only during "the life of the annuitant. (Doe v. Simpson, 5 East, " 162; Adams v. Adams, 6 Q. B. 860.) " And if the trust be to pay several annuities, the " trustees take the legal estate only for the lives of the "respective annuitants. (Doe v. Simpson, 5 East, 162.) " But, if the annuity be a charge on the corpus of the "land, as if lands be devised to trustees in trust to pay "thereout an annuity to A., and subject thereto in trust "for B., the trustees take the fee simple. (Fenwiek v. "Potts, 8 D. M. G. 506; [Whittemore v. Whittemore, 38 L.J.Ch. 17].) " And it is to be remembered, that a direction to pay an " annuity out of rents and profits may create a charge on " the corpus, the words ' rents and profits ' not being "restricted to annual rents and profits. (Phillips v. "Gutteridge, 11 W. R. 12, L. C.) Powers of Sale^ Leasing, dc. — "Where a devise to Powers of "trustees upon trusts which, standing alone, would not; the^t'ir^e "vest in them the whole legal estate, is followed by a trustees. 190 POWERS OF SALE. Powers of sale. "power to sell, lease, or mortgage, not limited to the "period of continuance of the active trusts, the trustees " are held to take the whole legal fee, and not a mea-e " limited estate with a superadded power of sale or leasing. " (Doe d. Cadogan v. Ewart, 7 Ad. & EU. 636; Watson "v. Pearson, 2 Exch. 581.) Thus, if the devise be to " trustees and their heirs upon trust to pay the rents to A. " for life, and after his decease to apply the rents for the " maintenance of his children during their minority, and "when the children attain twenty-one, upon trust for "' them in fee, and a general power of sale is given to the " trustees, they take the whole legal fee simple, and not " an estate limited to the life of A. and the minority of "his children. (Watson v. Pearson, 2 Exch. 581.) "Parke, B., said (ib. p. 593)": "The general rule is, that where an estate is given to trustees, aU the trusts which they are to perform must, prima facie at least, be performed by them by virtue and in respect of the estate vested in them . Here the interest derived [ ? devised] is in terms at least an interest in fee simple . One of the duties imposed on the trustees is, if they should deem it expedient, to sell the estate. This they can only do by exercisiug dominion over the fee simple; and in such a case, even without words of inheritance, there would , be strong reason for holding that they were intended to take the fee. But it is not necessary here to go that length. The fee is in terms devised to them; and it would be a very strained and artificial construction to hold, first, that the natural meaning of the words is to be cut down, because they would give an estate more extensive than the trust requires; and then, when the trust does in fact require the fee simple, to hold that that must be supplied by way of power, defeating the estate of the subsequent devisees, and not out of the interest of the trustees." Mr. Hawkins continues — " The strongest case of this kind is RacJcJiam v. Siddall " (1 Mac. & G. 607), where a devise to trustees and their "heirs expressly to the use of A. for life, with remainder " to the use of the trustees in trust to preserve, &e., with POWERS OF LEASING. J ^ 1 "' remainders over, witli a general power of sale reserved " to the trustees, was held to vest in them the fee, and not " a mere power. [See also Richardson v. Harrison, 16 •Q. B. D. 85.J "Similarly a devise to trustees, followed by a general Powers of " power of leasing, vests in them the fee simple. (Doe v. " Willan, 2 B. & Aid. 84; Doe v. Walbank, 2 B. & Ad. "554; Eiley v. Garnett, 3 De G. & Sm. 629.) " But, if the power to sell or lease be restricted by " implication to the period during which the active trusts " are to continue, the trustees will not take the fee. Thus, " in Doe v. Cafe (7 Exch. 675), under a devise to trustees " in trust to pay the rents to A. for life, with a trust for " maintenance during the minority of his children, with " remainder to the children at twenty-one, a power of "leasing the estate for twenty-one years was held to be " exerciseable only during the life of A. and the minority " of the children, and the remainders over were held to be "legal estates. " And in Doe v. Karris (2 D. & By. 36), a power to the "trustees to lease for seven years, and to sell at any time " after the death of the testator, was similarly held to be "restricted to the minorities of the cestuis que trust, and " not to imply that the legal estate was to continue in the "trustees after that period. Trusts to Convey J dc. — "If the devise be to trustees Trusts to COUVfiV "in trust to pay the rents and profits to A. for life, and "after his death to convey the estate to B., the trustees " of course take the fee simple. (Doe d. Shelley v. "Edlin, 4 Ad. & EU. 582; [Re Ymiman's Will, [1901] "1 Ch.720].) "But under a devise to trustees in trust to permit A. ''to receive the rents for life, and after his decease to ^' convey to B., it has been held that the trustees take the "fee simple in remainder only, and that the estate of A. " is legal. (Doe d. NoUe v. Bolton, 11 Ad. & Ell. 188.) . "In Ward v. Burhury (18 B. 190), the devise was to "trustees and their heirs, in trust to sell and divide the 192 WILLS ACT, S. 31. Sect. 31 of the WiUs Act. "proceeds among the children of A., but if A. should "die without issue, in trust to pay the rents and profits- "for the maintenance of B. during his minority, with a "devise of the estate to B. on attaining twenty-one. A. "having died without issue, it was held that the estate "of the trustpes ceased, and the legal estate vested in B. "on his attaining twenty-one. Existing Law. — " The general rule above considered, " that the legal estate vested in trustees is limited to the "amount necessary for the performance of the active " trusts reposed in them, is somewhat, though not greatly, "modified by the 31st section of the Wills Act, Which "enacts that, — Rule. In wills made or republished on or after Jan. 1st, 1838, " Where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the bene- ficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple, or other the whole legal estate which the testator had power to dis- pose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied." (Stat. 1 Vict. c. 26, s. 31.) Sects. 30 and 31 compared. Sections 30 and 31 compared. — Mr. Hawkins ob- serves: "The 30th and 31st sections of the Wills Act "have been described as obscure and even conflicting: "their meaning, however, will be apprehended by ob- EFFECT OF SECTION 31. 193 "serving that the 30th section, which speaks of a devise "passing 'the fee simple or other the whole estate or " interest of the testator,' relates to the quantity of estate "to he taken by a trustee for the purposes of the trust; "while the 31st section, which declares that a devise " shall Vest in trustees ' the fee simple or other the whole "legal estate' in the premises devised, relates to the "disposition of the legal estate not required for the pur- " poses of the trust. The 30th section enacts that in no " case shall trustees or executors be held, for the purposes "of the trust, to take an indefinite term of years: the "31st section enacts that where the estate of the trustees "is not expressly limited, they shall in all cases take " either an estate determinable on the life of a person "taking a beneficial life interest in the property, or the "absolute legal estate in fee simple («). Effect of the 31st Section. — "The 31st section seems Efeeotofth "to have been chiefly aimed at the doctrine, now (as ^^^*^ ^^''*'°°- "before observed) abandoned, of a determinable fee. Its "operation in other respects will be as follows. " Ist. The ordinary case of a devise to trustees in trust Devise in " to pay the rents and profits to A. for life, and after his the rentfto "decease in trust for B. and his heirs, is left unaltered: ^: fo^life, , ' with remaiu- the legal estate will still vest in B. after the death of A. der in trust "So, in the case of a devise to A. for life, with re- alteration!' "mainder to trustees and their heirs in trust to preserve So a devise to " contingent remainders, with remainder to the first and trusUo "^ "other sons of A. in tail, with vested remainders over: preserve oon- "the estate of the trustees to preserve will still be remainders. "restricted by implication to the life of A. "2ndly. Trusts to pay annuities will be altered. A Devise in "devise to trustees in trust to pay an annuity to A. for *™^**opay " life, and subject thereto in trust for B., will now vest in ■will give the trustees the ■ fee. («) "I believe the real history of the two sections is that they are two drafts dealing with the same subject though both remain in the Act." {Per JemelyM..^., iaFremev. Clement, 18 Ch. D. at p. 514.) Mr. Jarman's observations on the conflict between the sections will be found at p. 1842 of Jarman on Wills (Ed.). H. 13 194 DEVISE BY IMPLICATION. Devise in trnst to apply rents during minority : alteration. "the trustees the Whole legal fee simple, and not an estate " during the life of the annuitant, although the annuity be "payable out of the annual rents and profits only. "3rdly. Trusts during minority will present a differ- "ence. If the devise be to trustees in trust to apply the "rents and profits for the maintenance of A. during his "minority, and when A. attains twenty-one in trust for "A. durinff his life, with remainders over, the legal estate "will still as before Vest in A. on his attaining twenty- " one, inasmuch as the beneficial interest is given to him "for life, and the purposes of the trust cannot continue "longer. " But if the devise be (after the trust during minority) "in trust for A. on his attaining twenty-one, in fee or " in tail, and not for life only, the section will apply, and " the whole legal estate will remain in the trustees, so that "the estate of A. will be equitable only. " It may te a question whether, if' the trusts declared "are to pay the rents and profits to several persons (not "to one only) successively for life, with remainders over, " the legal estate wiU vest in the trustees in fee simple or "for the lives of the respective persons taking beneficial "life interests. " The section appears to apply to every ease where there "is no express limitation of the estate to be taken by the "trustee, although the gifts over to the persons bene- "ficially entitled may be in the form of a direct devise "to them. Thus, if the gift be 'I devise Whiteacre "to A. and his heirs in trust to apply the rents and "profits during the minority of B. for his benefit, and "when B. attains twenty-one I devise Whiteacre to B.,' " it would appear that the trustees must, notwithstanding "the latter words, take the fee by force of Uhe 31st section. Devise to trustees by implication. 'Dendse 'by implication. — "If property be given to "the separate use of a married woman, a direction that "certain persons shall be trustees for her is sufiicient to "vest in them the legal estate in the property. (Ex "parteWynch, 5 1). M.G. 188.) LAND TEANSPER ACT, 1897. 195 " If there is a devise by will to trustees, and by a codicil "the appointment of trustees is revoked and other trus- " tees substituted, this is sufficient to vest the estate in tih'e "new trustees. {Be Turner, 2 De G. F,. & J. 527.)" In Re Stamford and Warrington, [1911] 1 Ch. 255, Waxrington, J., held that certain trustees took a legal ■estate ( ? in fee) by implication from powers being given to them to hold manorial courts and accept surrenders ■of leases during the minorities of tenants in tail, but the decision was reversed by the Court of Appeal. ([1912] 1 Ch. 343.) In Davies to Jones and Evans (24 Ch. D. 190), a legal estate in fee was held to be given to the executors by implication. Note. — Throughout this chapter it has been assumed that Part I. of the Land Transfer Act, 1897, does not alter the construction of wills. .Where a testator dies aiter 1897 the whole legal estate Vests in the executors; the question is whether the provision in sect. 2 that they " shall hold the real estate as trustees for the persons by law beneficially entitled thereto" prevents the devisees in trust, who are not executors, from taking any legal ■estate, or whether on the executors assenting to the devise, the devisees in trust will take such estate as they would have taken under the previous law. See Jarman on Wills, p. 1800. 13(2) 196 CHAPTER XIV. PRECATORY TRUSTS (a) . The expres- sion of tlie testator's desire is primd facie imperative, and creates a precatory trust. Mr. Hawkins observes — " K a testator expresses a wish only with respect to the "application of property, without imposing a command " or creating' a trust, it is probable that in most cases he "intends to leave the parties at liberty to carry out his " wishes or not, as they may think fit: or at least to impose "only a moral, and not a leg-al obligation. The Courts, "however, lean to the construction which regards the "testator's wishes as meant to be imperative on those to "whom they are addressed: and it is a rule that, — Rule. The ^expression of a wish or desire on the part of the testator, accompanying a devise or bequest, that a particular application will be made of. the property, is prima facie considered as o'Siigatory, and creates a trust, unless an intention ?,ppear to the contrary. [Malim v. Keighley, 2 Ves. 333 ; Knight v. Boughton, 11 CI. & F. 513 ; Knight v. Knight, 3 B. 148 ; Briggs v. Permy, 3 Mac. & G. 546 ; Gary v. Gary, 2 Sch. & Lef. 189.) Thus, "if a testator gives 1,000^. to A. B., desiring, wishing, recommending, or hoping, that A. B. will at his death give the same sum or any certain part of it to C. D., it is considered that C. D. is an object of the testator's bounty, and (a) It is douttful wliether at the present day there is any rule of construction as to precatory trusts (Ed.). PEECATOEY TEUSTS. 197 A. B. is a trustee for him." [Knight v. Knight, 3 B. 173.) " I will lay down the rule as broad as this; wherever any person gives property, and points out the object, the property, and the way in which it shall go, that does create a trust, unless he shows clearly that his desire expressed is to be controlled by the party, and that he shall have an option to defeat it. The word ' recommend ' proves desire, and does not prove discretion. If a testa- tor shows his desire that a thing shall be done, unless there are plain express words or necessary implication that he does not mean to take flway the discretion, bu,t intends to leave it to be defeated, the party shall be con- sidered as acting under a trust. I will not criticise upon the words. 'Recommend' is a request and more. If I request a man to do anything, I recommend it; and t'*ce versa." {Per Lord Alvanley, Malim v. Keighley, 2 Ves. jun. 335.) In Briggs v. Penny (3 Mac. & G. 554), Truro, L. C, Rule as stated said: "I conceive the rule of construction to be, that Truro!^ Words accompanying a gift or bequest, expressive of con- fidence or belief, or desire or hope, that a particular application will be made of such bequest, will be deemed to import a trust upon these conditions, first, that they are so used as to exclude all option or discretion in the party who is to act, as to his acting according to them or not; secondly, Ithe subject must be certain; and thirdly, the objects expressed must not be too vague or indefi- nite to be enforced." "But," observes Mr. Haw'kins, "this formula is "perhaps not strictly accurate: for the rule is, not that "a trust is created, if the expressions used exclude dis- "cretion (which is of course), but that precatory ex- "pressions shall, prima, facie, be considered to exclude "discretion; and a precatory trust may be created, as " will appear, though the quantiDm of interest to be taken "under it be uncertain, or the objects of it unascer- "tained." 198 MODEEN DOCTRINE. The modern doctrine. Since Mr. Hawkins wrote there has been a tendency to relax this arbitrary rule. (Be Adams and Kensington Vestry, 27 Ch. D. 394; Re Ramilton, [1895] 2 Ch. 370; Be Williams, [1897] 2 Ch. 12.) The change of opinion seems to have begun as early as 1871 . (Lambe v. Eames, L. E. 6 Ch. 597.) In Hill V. Hill, [1897] 1 Q. B. at p. 488, Lopes, L. J., thought it " inconceivable that a testator who really'meant his hope, recommendation, confidence, or request to ba imperative should not explain his intention in a mandatory form." In Be Atkinson (103 L. T. at p. 862), Cozens-Hardy, M. R., says: " It is beyond aU doubt that, in years gone by, words which were in form merely expressing hope, desire, wish, intention, and so on, were construed by very learned judges in a manner which 'would not now be followed. It has been pointed out by the Courts for the last quarter of a century and longer that the current has turned. The leaning of the Courts is now undoubtedly not to extend the doctrine of precatory trusts. And I think I may go further and say that the leaning of the Courts is not now to construe words used in a will, not being words of a strictly definite legal character beyond all doubt — ^equivalent words, in short — as creating a trust." Mr. Hawkins then proceeds to give the following examples, but it is doubtful how far the cases quoted by him would be followed at the present day. Examples. Examples. — " Thus a trust has been held to be created "by the following expressions: — Recommend. Becommend. — " Where the gift was, ' I bequeath to my "daughter A. the sum of 10,000?., and 1 recommend to my "said daughter and her husband that they do forthwith "settle and assure the said sum of 10,000?., together also " with such sum of money of his own as the said (husband) "shall choose, for the benefit of my said daughter A. and "her children': it was held that a trust was created as to PEECATOEY TEUSTS. 199 "the 10,000?., whether the husband settled anything " besides or not: and therefore that the gift did not lapse " by the death of A. in the testator's lifetime. {Ford v. "Fowler, 3 B. 146.) So, where the gift was, ' The whole " of my property to be given to my sisteir, to be hers " independent of any husband: and I earnestly recommend " her to take such measureis as she may deem best for " making it sure that whatever she may inherit under this "my wiU may go at her decease to her children.' " CholTTDondeley v. Chohrtondeley, 14 Sim. 590.) Request. — " ' And it is my dying request to the said A., Kequest. " that if he shall die without issue living at his death, the " said A; to dispose of what fortune he shall receive under "this my will to and among the descendants of my late " aunt B., in such manner and proportions as he shall think "proper.' {Fierson v. Garnet, 2 Bro. C. C. 38, 226.) ' I "appoint the said property as follows, viz., the whole to " my husband absolutely; but it is my request to him that " after reserving for his own use the sum of 2,000Z., he will " make such disposition of the remainder by wiU or settle- " ment as he may deem most desirable to carry out my "wishes often expressed to him.' {Bernard v. Minshull, "1 Johns. 276.) Desire. — " ' And it is my absolute desire that my sister Desire. "A. bequeaths at her own death to those of her own family " what she has in her power to dispose of that was "mine, provided they behave well to her.' {Cruiuys v. " Colman, 9 Ves. 319; [ReJevons, 56 Sol. J. 860; contra, " Re OMfleld, [1904] l,Ch. 549].) Entreat. — " ' The property of the said stock and the free Entreat. "disposal thereof, save the prayer hereinafter contained^ "to be to the survivor of A. and B convinced of "the high sense of honour, the probity and affection of "my son-in-law A., I entreat him, &c.' {Prevost v. "Clarke, 2 Mad. 458.) - Advise. — " 'I give to A. all my real and personal pro- Advise, "perty and appoint him my sole executor, and after my 200 PRECATORY TRUSTS. Confidence. Trusting. "death do (A'ise him to settle it upon himseK and his "issue male by his present Avife, and for want of such "issue on E. and his issue male, &c.' {Parker v. "Bolton, 5 L. J.N.S. Ch. 98.) Confidence. — "So, where the gift was 'I devise and " bequeath all my estate and effects to my wife, her heirs, " executors, or administrators, to and for her sole use and "benefit, in full confidence that she my said wife will "in every respect appropriate and apply the same unto "and for the benefit of all my children,' the widow was "held to take a life interest only, with a power of ap- "pointment among the children. (Wace v. Mallard, 21 "L. J. Ch. 355.) So, in Gully v. Cregoe (24 B. 185), " under a gift to the widow, 'as to and for her own sole " use and benefit for ever, feeling assured and having " every confidence that she will hereafter dispose of the "same flairly and equitably amongst my two daughters "and their children,' the same construction was adopted. [CurndcJc v. Tucker, L. R. 17 Eq. 320; Le Marchant V. Le Marchant, L. R. 18 Eq. 414 ; contra. Be WilliamSj [1897] 2 Ch. 12 ; Be Adawis and Kensing- ton Vestry, 27 Ch. D. 394; Be Hutchinson and Tenant, 8 Ch. D. 540; and see Be Hanhury, [1904] 1 Ch. 415 (in the Court of Appeal), and Mtissoorie Bank v. BaynoTil A. C. 321.] Trusting. — "So, a bequest of stock to A., 'trusting " that he will preserve the same so that after his decease "it may go and be equally divided among his four chil- "dren." (Baker v. Mosley, 12 Jur. 740.)" Not doubting. Not doubting. — "So, a devise to A., 'not doubting, in " case he should have no children, but that he will dispose ' and give my said real estate to the female descendants 'of B., in such part or parts and in such manner as he ' shall think fit, in preference to any descendants in his ' own female line.' (Parsons v. Baker, 18 Ves. 476.) WeU knowing. Well knowing. — " 'I bequeath the same to A., her exe- CONTRARY INTENTION. 201 €utors, ajdiministrators, and assigns, well knowing that she will make a good use and dispose of it in accord- ance with my views and wishes.' " {Briggs v. Fenny, 3Mac. &G. 546.) Briggs v. Penny was distinguished in Stead v. Mellor (5 Ch. D. 225), and Clancarty V. Clancarty (31 L. E. It. 530). Hoping. — Mr. Hawkins continues: "The word Hoping. " ' hoping ' is sufficient to create a precatory trust. (Har- ''land V. Trigg, 1 Bro. C. C. 142.) Power to Appoint. — "In Brook v. Brook (3 Sm. & Gift -with " Gr. 280), a devise to a married woman for her separate ^^^0^11° ■"use, ''with power for her to appoint the same to her no precatory "husband and children in such way and in such propor- "tions as she may think fit;' and in HowartK v. Dewell " (9 W. R. 27), a devise to the widow with power for "her to appoint the same to the testator's children for " such estates, &o. as she should in her discretion see "most fitting and proper: were held not to Create a pre- "catory trust. Sed qu." Mr. Hawkins' queer e should be considered in relation to the state of the decisions when he wrote. At the present time there is no sufficient ground for doubting these decisions, which are based on the view that an ahsolute devise is not cut down by a superadded power of appointment amongst a class. Contrary Intention. — Mr. Hawkins continues: "If the " expression of the ,testator's desire is accompanied by " other words, showing clearly that he did not intend the "wish to be imperative, but that having expressed it he " meant to leave it to the legatee to act thereon or not at " his discretion, no trust wiU b© created. "As in Meredith v. Heneage (1 Sim. 542; 10 Price, " 306, H. L.), where the testator, after entreating his wife " to settle such part of his real estate as she should think *' fit in a certain manner (which was held not to create a ■" trust by reason of the uncertainty of subject), devised all 202 CONTRARY INTENTION. Gift to A. for her sole use and benefit, in confidence that she -will dispose thereof among her children. Gift in con- fidence that she will dis- pose, &c. among herself and children. his estate to her ' unfettered and unlimited, in full con- fidence and with the firmest persuasion ' that she would devise the whole to such of the testator's heirs as she should think fit: it was held that no trust was created. So, where the words were, ' I trust to the liberality of my successors to reward any other of my old servants and tenants, and to their justice in continuing the estate in the male succession.' {Knight v. Boughton, 11 CI. & P. 513.) So, where the gift was to the testator's wife 'to and for her own absolute use, benefit, and disposal, . . . and whereas I have hereby manifested abundant proof of entire confidence in my said wife hj thus giving her the sovereign control over the whole of my property for her sole use and benefit, . . . but nevertheless I earnestly conjure her, &c.' (Winch v. Brutton, 14 Sim. 379.) " In Johnston v. Rowlands (2 De G. & Sm. 356), a gift to the wife of 2,000?. ' to be disposed of by her will in such lOay as she shall think proper, but I recommend her to dispose of one half thereof to her own relations, and the other half amongst such of my relations as she shall think proper,' was held not to create a trust. [Lamb& . Earnes^'L. R. 6 Ch. 597.J " In Wace v. Mallard (21 L. J. Ch. 355), and Gulhj v. ' Cregoe (24 B. 185), it was held that under a gift to A. ■ for her sole use and benefit, in confidence that she will dispose thereof at her decease among her children, A. ■ takes the beneficial interest for life only, and the words- ■ ' for her sole use and benefit ' do not (negative the creation '' of a trust in remainder (6). " But where the bequest was to A. for her sole use, &c., 'in confidence that she wiU. dispose thereof for the joint ■ benefit of herself and her children, it was considered that ' no precatory trust was raised. (Webb v. Wools, 2 Sim. ' N. S. 267. [As to this case, see Curnick v. Tucker y (S) As to Wace t. Mallard, see Jarman on Wills, p. 874 and Se Sutchinson and Tenant, 8 Ch. D. 540 (Ed.). UNCERTAINTY OF SUBJECT. 203 L. R. 17 Eq. 320; Le Marchant v. Le Marchant, L. R. 18 Eq. 414].) Uncertainty of Amount. — " The indefinite nature and Uncertainty quantum of tlie subject, and the indefinite nature of the " ''*° ' objects, are always used by the Court as evidence that the mind of the testator was not to create a trust." {Per Lord Eldon, Morice v. Bishop of Durham, 10 Ves. 536.) " Thus," continues Mr. Hawkins, " where a gift is made "to a person, 'not doubting but that she will dispose of " what shall be left at her death to our two grandchildren ' "(Wynne v. Hawkins, 1 Bro. ,C. C. 179), or with a "request that the legatee will give 'what shall be re- "maining' (Green v. Marsden, 1 Drew. 646), or that he " wiU give ' the bulk of my said residuary estate ' (Palmer "v. Simmonds, 2 Drew. 221), or, 'what money or pro- "perty she may heme saved out of the income hereinbefore "given her' (Courman v. Harrison, 10 Hare, 234): it "has been held that no precatory trust is raised. "In Lechmere v. Lavie (2 My. & K. 197), the words " ' if they die single of course they will leave what they " have among their brothers and sisters ' were held not to "mean the property taken under the bequest, but any "property the legatees might possess at their death; and "therefore no trust was held to be created. But, in Hor- " wood v. West (1 S. & St. 387), "where the bequest was to " the testator's wife, relying on her to settle for her sepa- "rate us^e, in case of her second marriage, 'whatever she "should possess herself of by virtue of his will, with a " recommendation to her to dispose of by wiU in a certain "manner 'what she should die possessed of under the " will, it was held that the recommendation was not con- " fined to what, if anything, happened to remain undis- " posed of at bar death, but extended to the whole property, "and that a valid trust was created. " Again, it has been held that no precatory trust was "created by the following expressions:— 'recommending "to her and not doubting but that she will consider my "near relations, should she survive me' (Sale v. Moore, 204 TRUSTS FOR MAINTENANCE. "1 Sim. 534): 'trusting that her aHection would induce " her to make our said daughter her principal heir ' {Hoy "v. Master, 6 Sim. 568): 'well knowing that he will " discharge the trust reposed in him by remembering' my " children ' {Bardsiadlv. BatMuiell, 9 Sim. 319): ' having " full confidence in her sufficient and judicious j/rovision "for my dear children.' (Fox v. Fox, 27 B. 301.) Trusts for maintenance, to. Gift to A., to be disposed of for the benefit of herself and children. Trusts for Maintenance, dc. — " But a trust may be "created, although the quantum of interest to be taken "under it may be indefinite." "Whatevar difficulties might originally have been supposed to exist in the way of a Court of equity enforcing a trust, the extent of which was unascertained, the cases appear clearly to decide that a Court of equity can measure the extent of interest which an adult as well as an infant takes under a trust for his support, maintenance, advancement, provision, or other like indefinite expression, applicable to a fund larger, confessedly, than the party entitled to the support, main- tenance, or advancement can claim, and some interest in which is given to another person." (Per Wigram, V.-C, Thorp V. Oiven, 2 Hare, 610.) "And," continues Mr. Hawkins, "a trust for main- ' tenance, &c., may be created by precatory words. Thus, 'in Foley v. Parry (2 My. & K. 138), the words, 'and ' it is my particular wish and request that my dear wife ' and A . wiU superintend and take care of the education ' of B., so as to fit him for any respectable profession or ' employment,' were held to create a charge on tihe interest 'taken by the testator's widow under the will. " A gift to A., to be disposed of for the benefit of herself ' and her children, gives the children an interest in the 'fund; and as between A. and her children she is either ' a trustee, with a large discretion as to the application of ' the fund, or has a power in favour of the children subject 'to a life interest in herself. (Crockett v. Crockett, 2 'PhiU. 553; Baikes v. Ward, 1 Hare, 446; Woods v. 'Woods, 1 My. &Cr. 401.) " But a gift to A., to enable her to maintain or provide UNCERTAINTY OF OBJECTS. 205 "for her children is an absolute legacy to A., "with the Gift to A., "motive only pointed out. {Thorp v. Ovfen, 2 Hare, to provide for "at p. 611; Bmson v. WMttcm, 5 Sim. 22.) her children. " Where the interest of a fund is g'iven to a parent, to 610 Gift to parent "applied for or towards the maintenance or education te^pUedto " of children, the principal of the fund being' given to ^^^ mainte- "the children in remainder, the parent is in general en- children, "titled to receive the income subject to no account, pro- "vided he discharges the duty of maintaining and edu- " eating the children. {BrouiMe V. Paull, 1 Sim. N. S. "92; Costabadie v. Costabadie, 6 Hare, 410; Byrne v. "Blackburn, 26 B. 41.) "And in Hamvumid V. Neame (1 Sw. 35) the parent "was held entitled to receive the income, although there "was no child. ' Uncertainty of Objects. — "In Harland v. Trigg (1 Uncertainty " Bro. C. C. 142), a gift to A. 'hoping he will continue ° ° J®° • "them in the family,' was held not to create a trust " on account of uncertainty in the object. But in Wright "v. Atkyns (Coop. Ill), a devise to A. 'in the fullest " confidence that after her decease she will devise the "property to my family,' was considered by Lord " Eldon sufficient to raise a trust (c). "In Reev'es v. Baker (18 B. 372), a devise to A. in "fee, 'being fully satisfied that she will dispose of the "same fairly and equitably to our united relatives,' was "held not to create a trust: but qu. as to this case, and "the somewhat similar one of Williams v. Willtams (1 "Sim. N. S. 358). "A precatory trust may be created, although the object Precatory "of it may be undefined." "Vagueness in the object although the will unquestionably furnish reason for holding that no ^^1*^"*/°' trust was intended, yet this Inay be countervailed by other considerations which show that a trust was intended, while at the same time such trust is not sufficiently certain and definite to be valid and effectual: and it is not (c) On this case see Se Williams, [1897] 2 Oh. at p. 20 (Ed.). 206 UNCERTAINTY OF OBJECTS. necessary to exclude the legatee from a beneficial interest that there should be a valid or effectual trust; it is only necessary that it should clearly appear that a trust 'wjas intended." (Briffgs v. Permy, 3 Mac. & G. 556; [per Lord Truro, C.].) "Thus," continues Mr. Hawkins, 'if the gift be to A. 'well knowing that she will dis- 'pose of the same in accordance with my views and 'wishes,' these words are sufficient to create a trust, 'although the views and wishes of the testator may 'never have been made known, or might if known be 'too Vague and indefinite to be enforced. {Briggs v. 'Penny, 3 Mac. & G. 546; Bernard v. MinshuU, 1 'Johns. 276.)" The doctrine of precatory trusts is discussed at pp. 868 et seq. of Jarman on iWills. 207 CHAPTEE XV. HEIRS,; HEIRS MALE, ETC. Mr. Hawkins observes — " Considerable favour seems to have been ancientdy " shown to the common law heir, even in questions of "construction. Hence, perhaps, several of the following "rules, including this, that — Hmr of Customary Lands. Rule. If customary lands be devised to the Devise of cus- 1. i-i> •l^ , , 1 • tomary lands heir or heirs oi any person, without an estate m to the heir; the ancestor, prima facie the common-law heir lawheir^takes takes, and not the customary heir. ^ purchaser. Thus, if gavelkind lands be devised to the heirs of A., who dies leaving several sons, the eldest alone takes the fee simple. (Co. Litt. 10a; Robinson on Gavelkind, 117; Thorp v. Owen, 2 Sm. & G. 90.) [Garland v. Beverley, 9 Ch. D. 213 ; Polley V. Polley, 31 B. 363, Borough EngHsh.j " As if lands of the nature of g'aVelkind be given to B. and his heirs, having issue divers sons, all his sons after his decease shall inherit; but if a lease for life be made, the remainder to the right heirs of B.,and B. dieth, his eldest son only shall inherit, for he only to take by pur- chase is right heir by the common law." (Co. Litt. 10a.) Mr. Hawkins continues — "In Thorp V. !Ow!ew (2 Sm. & G. 90), the rule was 208 VERY HEIK. DeTise to heirs male of the body. "applied to a devise of customary land to the heirs male "of A., i.e., heirs male of the body of A. (a). "In Roberts v. Bixutell (1 Atk. 607), a devise of "gavelkind lands by way of executory trust, to be settled "on the heirs of the body of A. was executed by a " settlement on the first and other sons of A. successiveltf "in tan. Devise to testator's heirs. Devise to Testator's Heir. — "In Sladen v. Sladen (2 "Jo. & H. 369), it was doubted whether the rule applies "to the case of a devise of customary lands to the right " heirs of the testator, inasmuch as the heir would (before "the Act 3 & 4 Will. 4, c. 106) have taken by descent and "not by purchase. But qu. whether there b© any dis- "tinction; for if the common-law heir takes by virtue " of the rule, he does not take by descent." Mr. Hawkins' view is the correct one. (Garland v. Beverley, 9 Ch. D. 213.) " But," continues Mr. Hawkinsi, " where gavelkind free- " holds and leaseholds (mixed) were devised to the right "heirs of the testator, the common-law heir was held to "take. (lb.)" HEIR MALE OF THE BODY. Doctrine of " Very Heir." Lord Coke's " It is laid down by Lord Coke (Co. Litt. 24b), that „ .■ , „ " under a devise to the heirs male (or female) of the body the body to " of any person without an estate in the ancestor, the chase musTbe "person to take as heir male of the body by purchase very heir. "must be heir general of the body, or very heir. In " other words, the expression ' heir male of the body,' so " far as it designated the person to take an estate by pur- " chase under the devise in question, was considered by " Lord Coke to mean, the heir general of the body being "a male, and not, as it more properly does mean, the (a) The words were, " my then heir male and his heirs in strict" tail male" (Eb.). LORD coke's rule ABOLISHED. 209 " person utho would have inherited an estate in tail male "from the ancestor; or, to adapt Lord Cottenham's "language in Chambers v. Taylor (2 My. & Cr. 385), " such person as would be heir, if males only Svere capable " of being Jielirs, and of [transmitting descent. Thus, " according to Lord Coke's rule, the expression 'heir male " of the body,' designating a person to take by purchase, " had no reference to the course of descent of an estate in " tail male, but pointed at and described the heir general " of the body, with the superadded qualification of being "of the male sex. It followed, that the person thus "designated could take, if very heir and a male, although "not claiming through males only. (Co. Lit. 25b; per " Bosanquet, J., Doe v. Perratt, 10 Bing. 216.) " Lord Coke's rule has now been (at least asi regards Rule altered. " estates tail) altogether abolished, and it is settled in " accordance with the natural construction of the words, "that"— Rule. Under a devise to "heirs male of the Heir male of body " of any person, the heir male of the body take by pur- taking by purchase need not be heir general, norbe'heir (Wills V. Palmer, 5 Burr. 2615; Goodtitle v. s^'^^'^^^- Burtenshaw, Fearne C. R. App. 570 ; Doe d. Angell v. Angell, 9 Q. B. 328.) " Thus, if the devise be to the heirs male of the body of "A., who has died leaving a younger son and a daughter " of a deceased eldest son, the younger son will take an " estate in tail male by virtue of the devise, although the "granddaughter is heir. " The same rule would apply to a devise to heirs female "of the body. "The new rule applies to a devise to 'heirs male,' "where these words are taken to mean 'heirs male of the "body.' "Thus, in Doe d. Angell v. Angell (9 Q. B. 328), a " devise ' to the male heirs, if any such there be, of W. A. "and their male heirs fo^ ever,' was held to vest in a H. 14 210 HEIR MALE MUST CLAIM THROUGH MALES. "pereom as purchaser who was heir male of the body of "W. A., but not heir general. Wietlier Lord Ooke'f rule be altogether gone. Lord Coke's Buh, how far abolished.- — " In Wrighison ' V. Macmlay (14 M. & W. 214), Parke, B., said that Lord ' Coke's rule had been broken in upon only as regards ' estates tail. But it would seem that the old rule would 'not now be applied to any case where the expression "heirs male of the body' is used; thus, under a devise ' to the heir male of the body of A. and the heirs of such ' heir male, it is conceived that the person claiming by ' purchase, as heir male of the body, an estate in fee simple 'under the devise, need not be heir general; and conse- ' quently that he must claim through males. If there ' were any case in which the expression ' heir male ' should ' be held not to mean ' heir male of the body,' the old rule ' mig'ht perhaps stiU apply, and the words be construed to 'mean the heir general, being a male. "Of course under a devise to 'the right heirs of A., ' being of the name of B.,' no person could claim as pur- ' chaser who was not heir general of A . , as well as of the 'name of B. (Wriffhtson V. Macmday, 14 M. & W '214.) Whether the heir male of the body- taking by purchase must claim through males. Heir Male of the Body nrnst claim through Males. — " It seems to be a necessary consequence of the rule "above stated, that the person claiming as purchaser "under the description of heir male of the body, as well "as those claiming by descent, must convey his descent "entirely through males. [Thellusson V. Bendlesham, 7H.L.C. atp.512.] "According to Lord Coke's rule this was not neces- " sary ; for the words ' heir male of the body ' being taken "to mean 'heir general of the body, being a male,' if "the person claiming satisfied the latter conditions, there "was nothing in the expression to require that he should " be heir of the body by descent through males. Lord Coke "says," "If A. hath issue a son and a daugihter and dietb, and the son hath issue a daughter and dieth, and a lease for MALES CLAIMING THROUGH MALES. 211 life is made, the remainder to the heirs female of the body of A., in this case the daughter of A. shall not take causa qua supra" [i.e., hecause not heir general]; "but alheit the daughter of the son maketh her conveyiance hy a male, she shall take an estate tail by purchase, for she is heir and a female." (Co. Lit. 25 b.) Mr. Hawkins ■continues: " The latter part of this passage appears, like "the former part, to be no longer the law. Now that " the words ' heir male of the body ' are held to mean the "person who would haVe inherited an estate in tail male ''from the ancestor, although not heir general, the con- " dition of claiming through males is necessarily intro- ^'duced. Males Claming' through Males. " The case of an heir male of the body taking by pur- " chase is thus brought into conformity with the general "rule of construction, that — Rule. "Heirs male of the body," or "issue " Heirs maie^ male," mean descendants in the male line only, i.e., or "issue males claiming througli males. (Co. Lit. 25 a ; males oiaim- Bernal v. Bernal, 3 My. & Cr. 559 ; Lywood v. ^fie^"""^^ Kimber, 29 B. 38.) "In Lywood v. Kimber (29 B. 38), a sum of stock " was given to five persons for life, and after their deaths "to their issue male; and it was held that males claiming "through females were not entitled. " In Bernal V. Bernal (3 My. & Cr. 559) the rule was Male "applied to a gift (in a Dutch will) to the 'male de- •^^^''^'^dants. "scendants' of aperson. Lord Cottenham said (p. 581)," "To entitle any one to claim, he must show that he is one of the favoured class; that is, one of the class of male descendants. A male descended from a female of the family would undoubtedly answer the description, as he would be a descendant and a male; but he would not be one of the class of male descendants. Such would be 14(2) 212 HEIES MALE. the ordinary accepitation of the terms. In speaking of a man and his mlale descendants, as a class, no one would conceive the son of a female descendant as included, and such is the construction tw*hich our law has put upon the words, as 'issue male,' Hvhich is, in fact, the same thing as male descendants." "So," continues Mr. Hawkins, "a gift to 'the eldest "inale lineal descendant of A.' has been held inapplicable "to a male claiming through females. (Oddie v. Wood- " ford, 3 My. & Cr. 584; [Thellusson v. Rendlesham] "7 H. L. C. 429.) Heirgmale. " The rule of course applies to a deVise to 'heirs male," " where these words mean ' heirs male of the body.' {Doe "v. Angiille v. Lackey, 3 Ridg. P. C. 352.)" In Bradley v. Cartivright (L. R. 2 C. P. 511, observed on by Cotton, L. J., in Richardson v. Harrison, 16 Q. B. D. 85, at p. 108), the words "child or children" after issue were held to explain issue to mean children. "But," continues Mr. Hawkins, "the expression, " 'and if b^ut one child, the whole to said child,' following " a devise to issue, does not imply that ' issue ' is confined "to children. {Rodatj v. Fitzgerald, 8 H. L. C. 823.) " But where personal estate was given to the issue of "A., 'and if only one child, then to such one child,' it "was held that 'issue' was confined to children. {Carter "v. Bentall, 2 B. 551; \_Re Hopkins' Trusts, 9 Ch. D. 131].) Executory Trusts. — " The rule which construes ' issue ' Executory "as a word of limitation in devises does not apply so ^' ^". K-i T ■ iiTi n Direction to strictly to a direction to settle lands by way o± executory settle lands on " trusts. Thus, if land be directed to be feettled on A. for ^/"ftCT^is " Hfe, with remainder to his issue, A. will !be held to take decease to his "for life only. (Meure v. Meure, 2 Atk. 265; Lord issue take%y " Glenorchy V. Bosville, Gas. Talb. 3.) So if the direction piirohase. " be to settle on A. and his issue male by his present wife. "(Parker v. Bolton, 5 L. J. Ch. N. S. 98.) And in " Hadtoen v. Hadwen (23 B. 551) under a direction to "purchase lands to be settled on A. for life, 'and then "divided among his issue if any,' the children of A. were " held to take as tenants in common in tail, with cross "remainders. "Issue" in relation to Personal Estate. — "The rulie[„ The rule that " that ' issue ' is prima facie a word of limitation, does not -B-ord of limi- " extend to bequests of personal estate. (Knight v. Ellis, ^**j°°' j°®? H. 16 ''° ^^^^ 242 ISSUE IN RELATION TO PERSONALTY. personal estate. Bequest to A. for life, with remainder to his issue : A. takes for life only. '2 Bro. C. C. 570; Ex parte Wynch, 5 D. M. G. 188.) ' If it be clear that the testator intended to make such a 'disposition of personal estate as would in the case of ' real estate amount to an estate tail, the first taker will 'take the absolute interest: but it is not the case that ' every expression which would create an estate tail in real ' estate, wiU be held to indicate the same intention in the ' case of personal estate. On this point Ex parte Wynch ' establishes a distinction with respect to ' issue,' similar 'to that in Forth v. Chapman (1 P. Wms. 663), with 'respect to 'die without leaving issue.' " Thus if personal estate or chattels real be given to A. 'for life, and after his decease to his issue, A. takes for ' life only, and the issue take in remainder: althoug'h there ' be a gift over on failure of issue of A. {Knight v. Ellis, '2 Bro. C. C. 570; Ex parte Wynch, 5 D. M. G. 188; 'Goldney v. Crabb, 19 B. 338.) Bequest to A. and his issue, " And although it was formerly held that a bequest of "personal estate to A. and his issue was an absolute gift "to A. {Parkin v. Knight, 15 Sim. 83), it would appeai- " that this construction would not now be adopted, even " though, as was the case in Parkin v. Knight (but as- was "also the case in Forth v. Chapman), real and personal "estate be given together by the same words. A gift of " real estate to A. and his issue of course confers an estate "tail; but a bequest of personal estate to A. and his issue "would seem to be governed by the same rules (so far as " the gift to issue is concerned) as a bequest to the issue of " A. simpliciter . Thus, if the gift be immediate, A. and " his issue (if any) Kving at the testator's death would take "in joint- tenancy; and if the gift be deferred, issue sub- " sequently born before the period of distribution would be " admitted along with them; and if no issue had come into " existence before the period of distribution, A. would take " the whole. But slight circumstances would probably be "held to show an intention that the issue should take in "remainder, after a life interest in the parent." estate tail. wild's case. 243 wild's case. CMMren. " Although ' children ' is not properly a word of limita- ■" tion, it may be used as such, if the intention appear; but " the presumption is against its being so used, except in "the particular case following, viz.: — Rule. A devise of real estate to A . and his wm's case. •children, A. having no children at the time of the ^^^his*cM- devise, vests in A. an estate tail: "children" Jren, there ' .... being none at being construed as a vs^ord of limitation. ( Wildh the date of Case, 6 Rep. 16b; see Wehb v. Byng, 2 K. & J. creates an 669.) The rule does not apply to bequests of personal estate. {Audsley v. Horn, 1 De G. F. & J. 226.) " The time of the devise appears to mean the date of " the wiU, and not the death of the testator. {Buffar v. "Bradford, 2 Atk. 220; {_Qriev& v. Grieve, L. R. 4 Eq. 180; Seale v. Barlieri^ 2 B. & P. 485; Cliford v. Koe, 5 A. Cat p. 471].) "But a devise to A. and his children may create an "Children " estate tail, although there be children at the date of the "wiU. Thus in Wehh v. Byng (2 K. & J. 669, affd. " H. L. 10 W. E. 633), where the testator devised ' to A. "and her children aU. my Quendon Hall estates in E., "provided sh& takes the name of Cranmer and arms, and "her children, with my mansion house, furniture, &c. as "heirlooms,' A. was held to take an estate tail, the inten- "tion to preserve the estates in one body being apparent. "A devise to A. and 'his children for ever,' or to A. " and ' his children in succession ' {Earl of Tyrone v. Mar- " quis of Waterford, 1 De G. F. & J. 613), wiU create " an estate tail. "So even the word 'son' may be a word of limitation " {BoMnson v. Bobinson, 1 Burr. 38) — 'to such son as 16 (2) a word of limitation. 244 GIFT TO A. AND HIS CHILDREN. "he should have lawfully to be begotten' — or the word "'heir,' in the singular. (Co. Litt. 8b, n. (4). [See also Mellish v. Mellish, 2 B. & Cr. 620; Doe v. Garrod, 2B.&Ad. 87].) Bequest to A. and his children. Bequest to A. and his Children. — "A bequest of per- 'sonal estate to A. and his children, or a similar devise of ' real estate not within the rule in Wild's Case, is prima ' facie a gift to the parent and children concurrently, and ' being a gift to a class is subject ito the same rules as a gift 'to the children of A. (Crockett y. Crockett, 2 Phill. 653^ ' Webb V. Byng, 2 K. & J. 669; De Witte v. De Witte, '11 Sim. 41; Gordon v. Whieldon, 11 B. 170.) " Thus, if the gift be immediate, A. and his children (if ' any) living at the death of the testator will take as joint 'tenants: and if no children at that period, A. will take 'the whole. {Mason v. Clarke, 17 B. 126.) If the gift ' be deferred, A. will take jointly with his children living ' at the testator's death, and with those subsequently born ' before the period of distribution (Cunningham v. 'Murray, 1 De Gr. & S. 366); and if no such children, 'A. will take the whole. (Bead v. Willis, 1 Coll. 86.) ' Again, if A. predeceased the testator, the gift would not ' lapse, but his children would be entitled. " But slight circumstances are sufficient to show an ' intention that the children should not take jointly with 'the parent. (Crockett v. Crockett, 2 Phill. 553.) "Thus where the bequest was to A. and his children ' 'to be secured for their use,' the latter words were held ' to refer to the shares of the children only, and they were 'held to take in remainder, so as to admit all afterbom 'children. (Vaughan v. Marquis of Headfort, 10 Sim. ' 639; [Combe v. Hughes, L. E. 14 Eq. 415].) So where ' the gift, partly immediate and partly deferred, was to 'A. and her children, with a direction that other persona 'should be trustees of the sum for them. (Morse v. 'Morse, 2 Sim. 485.) " But in De Witte v. De Witte (11 Sim. 41), a bequest ' of the residue to trustees in trust to sell and to stand GIFT TO WIFE AND CHILDREN. 345 "posseseed of the proceeds in trust for the sole use of A. " and her children, independent of her husband, and her "receipts alone to be a sufficient discharge, was held to "be a gift to A. (for her separate use) and her children "jointly. [See Be Seyton, 34 Ch. D. 5 11. J " In Audsley v. Horn (1 De G. F. & J. 226), under a " bequest to A. for life, and at her death to her daughter " B. and B.'s children, B. was held to take for life only " with remainder to her children. Sed qu. " In Audsley v. Horn (26 B. 195), Komilly, M. R., was " of opinion that according to the tendency of the later " decisions, a gift of personal esitate to A. and her cMldf&n " simpliciter, is a gift to A. for life with remainder to her "children. And in Ward v. Grey (26 B. 485), the same "judge held that a direction to pay to A. and her family "simpliciter, operated as a gift to A. for life, with re- " mainder to her children as she should appoint, and in "default equally: but this is directly opposed to Be "ParUnson's Trust (1 Sim. N. S. 242, supra, p. 120). " It is conceived that, notwithstanding these cases, the "rule as at present established requires some aid from "the context to convert the gift to the children into a gift " in remainder, and that, without such aid, the force of the " expressions themselves is to cause the parent and chil- "dren to take concurrently. The opposite rule, however, " if established, would no doubt be a convenient and pro- "bably beneficial rule of construction" (a). In Neunll v. Neuiill (L. R. 7 Ch. at p. 258), Lord Hatherley, L. C, says: " I cannot find that the authori- ties bear out the proposition that a simple gift to the wife in trust for herself and her children will warrant the Court in presuming that the fund was intended to be settled." But slight indications seem sufficient to enable the Court to construe such a gift as a life interest to the (a) This and the preceding paragraph formed Appendix II. to the firit edition. The paragraph is quoted with approval by Joyce, J., in lit Jonts, [1910] 1 Ch. at p. 172. 246 GIFT OVER ON FAILURE OF ISSUE. parent with a gift over to the children. [1910] 1 Oh. 167.) (See Be JoneSf Devise to A. for life or in- definitely, with a gift failure of issne, confers an estate tail. Blackborn v. Edgley. Instate tail in remainder by implication. Parr y. Swindeh. Gift over on Failure of Issue. Mr. Hawkins continues — " It has been already shown that a gift over to take " effect on a general failure of issue, following a devise tO' " one and his heirs, or heirs and assigns, restrains the "previous devise to an estate tail. It is further the rule "that"— Rule. A devise of real estate to A. for life, or to A. indefinitely, followed by a gift over on general failure of his issue, vests in A. an estate tail. (Blackborn v. Edgley, 1 P. W. 600 ; Machell V. Weeding, 8 Sim. 4.) " I consider it to be a settled point, that whether an estate be given in fee, or for life, or generally without any particular limit as to its duration, if it be followed by a devise over in case of the devisee dying without issue " [i.e., in a will prior to 1837, where these words import a general failure of issue], " the devisee will take an estate tail." {Machell v. Weeding, 8 Sim. 7 ; [per ShadweH, V.-C.].) " But," Mr. Hawkins continues, "in a will since 1837, " a devise to a person indefinitely, with a gift over on " his death without issue, will confer an estate in fee simple "with an executory devise over on death without issue "living at the death: and a devise for life, with the like "gift over, will confer only an estate for life. Estate Tail in Remainder. — " In some cases {Parr v. "Sivindels, 4 Russ. 283; Doe v. Ealley, 8 T. R. 5; Doe "v. Gallini, 3 Ad. & Ell. 340), under a devise to A. for " life, with remainder to his children for life or in tail, " with a gift over on failure of issue of the parent, A. has " been held to take an estate tail by implication from the "gift over, in remainder after the estates limited to his CROSS REMAINDERS IMPLIED. ^47 "children; the doctrine of these cases however is not, "perhaps, likely to be extended. Personal Estate. — " A bequest of personal estate to A., Bequest to A., "with a gift over on a general failure of his issue, vests OTeronSlure "the property in A. absolutely, the gift over being void of his issue, "for remoteness." Note. — Since the Wills Act, gifts over on general failure of issue are not very likely to occur. (See Chapter XVII.) Implication of Cross-remainders. Mr. Hawkins continues — " A gift over on failure of issue generally has also the " effect of creating an estate by implication in the follow- "ing case, viz.: — Rule. If real estate be devised to several or to a class as tenants in common in tail, with a limitation over on failure of issue of all the devisees, cross-remainders in tail are, prima facie, to be implied amongst them. [Anon. Dyer, 303 b ; Doe d. Gorges v. Webb, 1 Taunt. 234 ; Vanderplank V. King, 3 Hare, 1 ; Atkinson v. Barton, 10 W. R. 281.) " Thus, if the devise be to the daughters of A. and the " heirs or respective heirs of their bodies, as tenants in " common, and in default of such issue over, cross- " remainders in tail will be implied among the daughters. "(Doe V. Webb, 1 Taunt. 234; Livesey v. Harding, 1 "E. & My. 636.) "In Doe V. Burville (2 East, 47, n.), the implication " was sustained, though the gift over was introduced only "by the words ^remainder to,' &c. " The circumstance of cross-remainders being expressly " limited between the devisees in certain events, does not " necessarily show that cross-remainders are not to be im- 248 OEOSS LIMITATIONS FOR LIFE. Express limitation of cross- reraaindera in certain events does not exclude the rule. Devise to several aa tenants in common for life, with gift over on de- cease of all : cross-remain- ders for life implied. Bequests of personal estate. FeaTce v. Simeades. "plied in other events {Atkinson v. Barton, 10 W. K. "281); although it may in some cases do so. (Babbeth "v. Squire, 4 De G. & J. 406.) " Thus where the devise was to several as tenants in " common for life, with remainder as to the share of each "to his children in tail, with remainder to the survivors of "such children in tail, with a limitation over on failure " of issue of the iirst devisees, it wias held that cross- " remainders were expressly limited only between the " children of each devisee, but that cross-remaindersi in "tail were to be implied between the several sets of "children. (AtJcinson v. Barton, 10 W R. 281 (a).) Cross-remaiimders for Life implied. — " Similarly, where " real estate is devised to several or to a class as tenants in " common for Ufe, with a gift over on the decease of all "the devisees, or on the decease of the survivor, cross- " remainders for life may be implied among them. " (Ashley v. Ashley, 6 Sim. 358; Vanderplank v. King, "3 Hare, 1; [Taaffev. Commee, 10 H. L. C. 64].) "And where the devise was to the children of A. aa "tenants in common for life, with remainder to their " children in tail, and with a gift over on failure of issue " of A., and some of the children of A. were held to take " estates tail by the rule of cypres, it was held that the "inequality thus created in the estates of the children, "some being tenants for life, and others in tail, was no " objection to the implication of cross-remainders among "them. (Vanderplank v. King, 3 Hare, 1.) ' Cross Limitations in Personal Estate. — "And if per- " sonal estate be given to several, or to a class, as tenants " in common for life, with a gift over on the death of all, "or on the death of the survivor, cross-limitations for " life may be implied among them. (Pearcev. Edmeades, "3 Y. & C. 246; Malcolm v. Martin, 3 Bro. C. C. 50; "Begley v. Cook, 3 Drew. 662.) This seems a better " construction than to reject the words importing tenancy (a) This case was reversed in D. P. (Atkinson v. Holthy, 10 H. L. 0. 314), but without affecting' the general principle (Ed.). RE HUDSON. 249 "in common, as suggested in Armstrong v. Eldridge (3 "Bro. C. C. 215), and Pearson v. Cransioick (11 W. E. "229." [See Be Hdbsm, [1912] 1 Ch. 626].) In Be Hudson (20 Ch. D. 406), Kaj, J., reviewed The rules in the cases and deduced from them the following rules: — " 1 . Cross-executory limitations in the case of personal estate like cross-remainders of real estate, are only implied to fill up a hiatus in the limitations, which seems from the context to have been un- intentional . 2. They cannot be implied — as of course cross-remain- diers could not — to divest an interest given by the will. 3. The existence of other cross-limitations between different persons does not prevent the impli- cation. 4. But where such express cross-limitations are in favour of the very persons to whom the implied cross-limitations would convey the property, that circumstance is of weight in determining the intention. Instances in which such a gap occurs are: (a) Where there is a gift to several named persons for their respective lives as tenants in common, and a gift over after the death of the survivor . (b) Where in a similar gift there are limitations over of the shares of the tenants for life to their respective children or issue for limited interests, as for life or in tail, and a gift over on the failure of issue of them all. (c) And generally where there being such a gift over, the preceding limitations do not provide for every event except that contemplated by the gift over, but leave some gap which would occasion an intestacy as to part of the estate." "Surviving" read as "other." — Mr. Hawkins con- "Surviving" tinues: "Where there is a gift to several, or to a class, "other." "as tenants in common in tail, with remainder as to 250 suEvrvoR meaning other. Grift to several "the share of each to the 'survivors' or 'surviving' conunonin™ " devisees in tail, with a limitation over on failure taU, witt " of issue of all the devisees, the words ' survivor ' the survivors " Or ' surviving ' will be construed as ' other,' so as to mtail, -with a " cjeg-te cross-remainders among the devisees by express failure of "limitation; either in a deed or will. {Doe v. Waine- issueof aU. ■' ^^^gji^^ 5 T. E. 427; Cole v. Sewell, 2 H. L. C. 186; " Smith V. Osborne,' 6 H . L . C . 375 ." [Hurry v. Morgan, L.E. 3 Eq. 152.]) Personalty. Similarly, in the case of personalty the rule is — Second rule in Where the gift is to A., B. and C. equally for tiieir respective lives and after the death of any to his children, but if any die without children to the survivors for life with remainder to their children with a limitation over if all the tenants for life die without children then the children of a deceased tenant for life participate in the share of one who dies without children after their parent. This is known as the second rule in Re BotOman (41 Ch. D. 525 at p. 531). Mr. Hawkins continues — "Although in other cases 'surviving' may be read as " ' other ' if the case require it (Wilmot v. Wilmot, 8 Ves. "10; [Williams v. James, 20 W. E. 1010; Eyre v. " Marsden, 4 My. & Cr. 231; Hawkins v. Hamerton, 16 "Sim. 410; Re Benn, 29 Ch. D. 839]), the later autho- Gift to several " rities are adverse to this construction. Thus, if personal as tenants m ,, . . common, with estate be given to several, or to a class, as tenants in ttie'sharefof* " common, either for life or absolutely, with a gift over those dying " of the shares of those dying without issue to the sur- issue to the " vivors, but without a gift over on failure of issue of all: survivors. " i\^q word ' survivor ' will be construed strictly. (Milsomi- "v. Awdry, 5 Ves. 465; Crowder v. Stone, 3 Euss. 217; "Re Corbett's Trusts, Johns. 591.)" For a time the law on this point was unsettled by certain decisions, but it now appears to be established as stated by Mr. Hawkins, that in this class of cases there must be a gift over or some other perfectly clear indication of intention in order that "survivors" may be construed "others." (Inderwiclc v. Tatchell, [1903] A. C. 120, FAIRFIELD V. MORGAN. 251 deciding' that the so-called third rule in Be Bowman is Third rule in ^ . 1 1 r-i ^^ Bowman not law.) The cases are carefully considered by Cozens- overruled. Hardy, J., in Harrison v. Harrison, [1901] 2 Ch. 136. "But," continues Mr. Hawkins, "in this case the gift " over on dying without issue would probably (even in a "will prior to 1838) be restrained by force of the word "'survivor' to a failure of issue at the death of each "legatee. (Hughes v. Sayer, 1 P. W. 534; see next "chapter.)" Stirpital Construction. — Sometimes survivor may be stirpital construed surviving in stock. (Re Bilham, [1901] 2 Ch. 169, not following O'Brien v. O'Brien, [1896] 2 Ir. 459; but see King v. Frost, 15 A . C . at p . 553 ; and Re Friends Settlement, [1906] 1 Ch. 47— deed.) The subject is dis- cussed in Jarman on Wills, pp. 2107 et seq. Fairfield v. Moegan. Mr. Hawkins lObserves — "It is an ancient rule of construction (the principle of "which, however, would not be extended at the present " day), to avoid disinheriting issue, that — Rule. If real estate be devised to A. in fee Fairfield y. simple with a limitation over in the event of A. :^'"'f'"'; _^ _ _ Devise to A. dying under twenty-one or without issue, the word i» fee, with a " or " will be read " and," and the gift over will case a. die be construed to take efEect only in the event of ^venageoj- A. dying under twenty-one and without issue, -^"''ria™^' (Soulle V. Gerard, Cro. P^liz. 525; Fairfield y,^^"^-^^" Morgan, 2 B. & P. N. R. 38; Right v. Dmj, 16 East, 67 ; Eastman v. Baker, 1 Taunt. 174.) "A multitude of decisions . . have established, that the disjunction word ' or ' in a devise of this kind is to be construed as the copulative ' and,' to avoid the mischief which would otherwise happen, of carrying over the estate 252 FAIRFIELD V. MORGAN. Rule applies to personal estate. if the first devisee died under the age of twenty-one, though he had left issue; when it was the apparent in- tention of the devisor that both events should happen, the dying under twenty-one, and, without issue, before the estate should go over. Then at the age of twenty-one, the testator contemplated that the devisee would take the fee, and consequently the f ower of disposing of the estate in what way he pleased; the testator leaving it to the devisee, after his attaining twenty-one, to make what provision he pleased for his issue, if he had any: but only providing in the event of the devisee dying before twenty-one, that the estate should not go over from the issue." {Bight v. Dcty, 16 East, 69 ; [per Lord EUenborough, C. J.].) " There is no doubt upon the authorities that if there be a devise or bequest to A. absolutely, but, if he die childless or under the age of twenty-one years, then over, the word ' or ' will be read ' and,' and the gift over will not take effect unless both events happen. This rule of construction depends upon a presumed intention of the testator to benefit the children of A. directly or in- directly, an intention which would be defeated if A. died under twenty-one, leaving children, and the word ' or ' were construed disjunctively." {Per Parker, J., in Re Crutchley, [1912] 2 Ch. at p. 337.) Mr. Hawkins continues — " The rule applies where the gift over is in the event of ' the devisee dying under any other age (as twenty-five), ' or without issue {Fairfield v. Morgan, 2 B. & P. N. K. ' 38) : and where the gift over is in the event of death ' under the given age or without issue living at the 'death. {lb.) " The rule applies where the devise to A. is of a con- ' structive fee simple only (in a will prior to 1838), as if ' the devise be of an ' estate' or subject to a payment by 'the devisee. {Fairfield v. Morgan, 2 B. & P. N. E. '38.) And inasmuch as a devise to A. indefinitely, with ' a gift over on his death under a given age ^vithout issue, ' confers a constructive fee simple, it would appear that FAIRFIELD V. MORGAN. 263 "the rule applies where the devise is to A. simpliciter, in "wiUs as well before as after 1837. " But if the devise be to A . for life only, the rule would "not apply. " And the rule does not apply where the devise to A. is Rile docs not "of an estate tail. (Mortimer v. Hartlet/, 6 Exch. 47.) the de-rise is " In Johnson v. Simcock (7 H. & N. 344, Ex. Ch.), the ^^^^ ^*»*« " devise was to B. if A. (the heir-at-law of the testator) "should die under twenty-one or without issue, but in "case A. should have issue, to A. and his heirs: it was ' ' held that the rule applied, and ithat A . took the fee simple " by deso&rtt, to the exclusion of B., although A. (having "attained twenty-one) died without issue." It may, however, be observed that in such a case the issue will be disappointed if A. dies under twenty-one. The cases are well discussed by Mr. Vincent. (Jarman on WiUs, pp. 604 et seq.) 254 CHAPTER XVII. BEATH WITHOUT ISSUE, ETC. "Die without Issue," dc. — Existing Law. Me. Hawkins observes — " The rule which construed gifts on death without issue " as depending on an indefinite failure of issue, is abolished " by the 29th section of the Wills Act as regards wills sub- " sequent to 1837; and the contrary rule established, viz., "that"— Sect. 29 of Rule. In wills made or republished on or after Stithoat Jan. 1, 1838, issue," &o. Jn devises and bequests of real or personal means a ..... failure of issue estate, the oxpressions " die without issue," " die at the death, , . ,,//t unless a eon- without having issue, " die without leaving tion''appea'r. issuo," and any other equivalent words, are construed to mean a failure of issue at the death of the person whose issue are spoken of, and not an indefinite failure of his issue, unless an inten- tion appear to the contrary. (Stat. 1 Vict. c. 26, s. 29.J " That in any devise or bequest of real or personal estate the words ' die without issue,' or ' die without leaving issue,' or ' have no issue,' or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of th^ DIE WITHOUT ISSUE. death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise: provided that this Act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue." (Wills Act, s. 29.) Eifect of Sect. 29.— "Thus," observes Mr. Hawkins, "if (in a will since 1837) real estate be devised to A. "and his heirs, or to A. indefinitely, with a limitation "over to take effect on the death of A. Without issue, or "without having or leaving issue, A. will not (as before) "take an estate tail with remainder over, but an estate "in fee, with an executory devise over in the event of " his death without issue living at his death (a) . " So, if the devise be to A. for life, with a limitation "over on his death without issue, A. will not, as before, "take an estate tail, but an estate for life only, with the "like executory devise over. "Again, if personal estate be given to A., with a bequest " over to B. upon the death of A. without issue, the gift " over will not (as before) be void for remoteness, but will "take effect as a contingent executory bequest upon the "death of A. without issue living at his death. " The 29th section does not absolutely prevent the "words 'die without issue' from in any case raising an " estate tail by implication. If there be a devise to A. for " life, with estates in remainder to some only of his issue, " and with a limitation over upon the death of A. without (a) In the case of wills coming into operation after 1882, sect. 10 of the Conveyancing Act, 1882, renders the executory limitation void as soon as there is living any issue who has attained twenty-one (Ed.). 266 256 EEFERENTIAL CONSTRUCTION. Referential Gonstniction. " issue; if it be clear upon the whole Tvill that all the issue " of A. were intended to take, and not those only to whom "particular estates are limited, A. may still take an estate "tail by implication, in order to carry out that intention. " (ElUcombe v. Gompertz, 3 My. & Or. 127; Leemvng "v. Sherratt, 2 Hare, 14; Sanders v. Ashford, 28 B. " 609 (&).)" " Provision is made for certain members of a class answering a particular description, and then a gift over is made upon the failure of the class. If it be clear that the whole of the class were not to take, the gift over, though made to depend upon the failure of the whole class, will be construed to take place upon the failure of that description of the class who were to take; and on the other hand, if it appears that all the class were in- tended to take, although some only are enumerated', and the gift over be upon the failure of the whole class, the Court wiU adopt such a construction as will extend the benefit, in the best way the law will admit, to the whole class." (Per Lord Cottenham, ElUcombe v. Gompertz, 3My. &Cr. 151.) Mr. Hawkins continues — " But it is not possible to lay down any general rules to " determine where a gift over on death without issue, or on "failure of issue, refers only to issue previously men- "tioned, and where not. (Key v. Key, 4 D. M. & G. "73; Pride v. Fooks, 3 De G. & J. 252;" [see also Re Merceron's Trusts, 4 Ch. D. 182; Bowen v. Letvis, 9 A. C. 890].) It must be remembered that, where the referential con- struction is adopted, sect. 29 of the Wills Act does not alter the construction. The cases on the referential con- struction are discussed in Jarman on Wills, pp. 1964 et seq. Whether the 29th section applies to " in default of issue" and "on failure of issue." In default of Issue^ &c. — Mr. Hawkins continues :" It "seems doubtful whether the 29th section applies to the " expressions ' in default of issue,' and ' on failure of issue.' (h) Leeming v. Sherratt and Sanders v. Ashford illustrate the referential construction ; in neither case was an estate tail given by implication (Ed.). OLD LAW. 257 " These expressions are not mentioned in the section, and " they stand on a different footing from ' die without "issue,' inasmuch as they contain in themselves no refer- " ence to the death of the person whose issue are spoken " of. But as they certainly may, by force of context, " 'import a want or failure of issue of any person in his "lifetime, or at the time of his death' (as in French v. "Caddell [3 B. P. C. Toml. 257], and Wellington v. "Wellington [4 Burr. 2165]), the language of the " 29th section may b© held to embrace these expressions "also." The section applies where the words are "die without leaving any male issue." (Re Edwards, [1894] 3 Ch. 644.) Dawson v. Small (L. R. 9 Ch. 651) is an instance of a contrary intention. Old Law — "Die without Issue." Mr. Hawkins' introductory observations and rules in relation to the law before the Wills Act are as follows: — " In the case of a devise of an estate tail, followed by " a limitation over in the event of the devisee dying with- " out issue, it is a beneficial and liberal construction to hold " that the gift over should take effect by way of remainder " on the estate tail, not only if the devisee died without " issue living at his death, but also in case of a failure of " issue occurring at a later period, in which case the devisee " could not, strictly speaking, be said to have died without "issue. Such was probably the origin of the following "rule of construction: — a rule which, though beneficial "in the case above supposed, became subversive of the "intention when applied generally, and most of all when "applied to bequests of personal estate, where it had the "effect of rendering the gift over void for remoteness, "as limited upon a general failure of issue; — viz., "that— Rule. In wills made before Jan. 1, 1838, omuw. The words " die without issue" are construed to mean the death of the person spoken of and H. 17 258 DIE WITHOUT LEAVING ISSUE. ' ' Die without issue ' ' means death and failure of issue then or at any time afterwards. Rule appMes both to real and personal estate. " Die without havingissue." failure of his issue at the time of his death or at any time afterwards : unless the context shows the meaning to be confined to a failure of issue at the time of his death. [\_Buc'kmere'' s Oase~\, 8 Co. 86 ; Beaiiclerk v. Dormer^ 2 Atk. 308 ; Candy v. Campbell, 2 CI. & F. 421.) The rule applies both to real and personal estate. (8 Co. 86 ; Beauclerk v. Dormer, 2 Atk. 313; Candy v. Campbell, 2 CI. & F. 421.) Thus if real estate be devised to A. and his heirs, or to A. for life, or to A. indefinitely, with a limitation over in the event of A. dying without issue, A. takes an estate tail with remainder over (heirs being construed heirs of the body). So if personal estate be given to A., with a limitation over in the event of A. dying without issue, A. takes the absolute interest, the gift over being void for remoteness. [_Fisher v. Webster, L. R. 14 Eq. 283.] The words " die without having issue," are equivalent to " die without issue." {Lee''s Case, 1 Leon. 285; Cole v. Gable, 13 C. B. 445.) "Die without leaping Issue." " The principle that words may be difierently construed, " according to differences in the subject-matter, is strongly " exempKfied in the rule of construction which follows — "viz., that — Rule. In wills made before January 1, 1838, In relation to real estate, the words " die Old law. Ji'orth V. Chapman. " Die without -ypithout leaving issue" are equivalent to ''die leamng \s,sa.e" . _ "^ . ■*■ _ in devises of without issue," and import a failure of issue at means an ' the death of the person whose issue are spoken indefinite OLD LAW. 259 of, or at am time afterwards, unless an intention failure of '^ •/ ' issue : m appears to the contrary. bequests of But, in relation to personal estate and chattels estate, a real, the words "die without leaving issue" i^suTatVe import a failure of issue at the death of the person ^^^*'^' spoken of, and not an indefinite failure of his issue. {Forth Y. Chapman, 1 P. W. 663.) Mr. Hawkins' observations on these rules are omitted. He points out that " the words ' die without issue ' may Exceptions to be restrained by the context (in wills prior to 1838) to the old law. mean a failure of issue at the death of the person, and not an indefinite failure of his issue. This construction is adopted (where the words in question follow a devise of real estate in fee simple, or a bequest of personal estate absolutely) in the following cases, viz.: — "First, where the gift over is expressly to take effect on the death of the person. . . "Secondly, where there is a bequest of personal estate Hughes y. to several as tenants in common, with a gift over of the ^"V^^- share of any on© dying without issue to the survivors or survivor, the presumption is raised that an indefinite failure of issue was not contemplated, and the words 'die without issue' will be restrained to a failure of issue at the death of the person whose share is spoken of. {Hughes v. Sayer^ 1 P. W. 534.) . . . "Thirdly, where there is a devise to A. and his heirs, with a gift over if A. should die under twenty-one or, having attained twenty-one, should die without issue, it has been held that the correspondence between the two events on which the limitation over is to take effect, is suiRcient to restrain the dying without issue to a failure of issue at the death. {Glover v. Monckton, 3 Bing. 18; Doe d. Johnson v. Johnson, 8 Exch. 81.)" And that — " In some cases a gift over on the death of a person without issue may be restrained to the event of failure of issue before the period of possession or dis- tribution." (See post. Chap. XVIII.) 17(2) 260 "leaving" read "having." Maitland v Chalie. Bequest to the children of A. at a given age, with a gift over on the death of A. without children : "leaving" read " having." Real estate. Maitland v. Chalie. Mr. Hawkins observes — " Where provision is made for children (whether of the " testator or another person) by will, subject to the usual " conditions as to vesting-, i.e., to sons at twenty-one, and " to daughters at twenty-one or marriage, the Courts lean " strongly against a construction which makes the interest " of a child who has attained the given age subject to the "additional contingency of surviving his or her parent: " and it is a rule that — Rule. If personal estate be given to the children of A., the shares to vest in them on attaining a given age or marriage, without reference to their surviving the parent, but there is a gift over on the death of A. without "leaving" a child or children : — the word " leaving" will be construed " having " or " having had," in order not to defeat the prior vested interests. [Maitland v. Chalie, 6 Mad. 243 ; Casamajor v. Strode, 8 Jur. 14 ; Re Thompson's Trust, 5 De G. & Sra. 667 ; Kennedy v. Sedgwick, 3 K. & J. 540.) " In this case a clear vested interest is in the first place given to the children of a daughter attaining twenty-one. If, in the clause which gives the property over on failure of children of the daughter, the word ' having ' be read for ' leaving,' the whole will will express a consistent inten- tion to that eSeot. I feel myself bound by the authorities to adopt this construction." (Maitland y. Chalie, 6 Mad. 250; [>er Leach, V.-C.].) Mr. Hawkins continues — " The rule would probably apply where the shares of the " children are given to them in the first instance absolutely, "not contingent on their attaining a particular age. " It would appear that the rule may be applied to devises "of real estate. (Marshall v. Hill, 2 M. & Sel. 608; MAITLAND V. CHALIE. 261 "Ex parte Hooper, 1 Drew. 264.)" [Treharne v. Layton, L. E. 10 Q. B. 459; Ee CobboM, [1903] 2 Ch. 299 . In Ex parte Hooper, the marginal note is incorrect, the V.-C. did not construe "leaving" in the gift over as "having," although he construed "leave" as "have." See Jarman on Wills, p. 1975, note (j).] Mr. Hawkins continues — " If, however, the gift to the children is introduced by "words importing the contingency, as if the gift be 'in " case A. shaU leave any child or children, to the children "of A. at twenty-one, &c., but if A. shaU die without "leaving children,' over, the rule is excluded, and the "word 'leaving' must have its natural sense. (Bythesea "v. Bythesefl, 23 L. J. Ch. 1004; Young v. Turner, 1 " Best & S. 550; [Se( Watson's Trusts, L. R. 10 Eq. 36; and see Ee Hamlet, 39 Ch. D. 426].) " But although the gift be thus contingent on some child "surviving the parent, yet if any child survives, all the " children, including those who predeceased the parent, "will take. {[Bromhead v. Hunt], 2 J. & W. 459; "Boulton V. Beard, 3 D. M. G. 608.)" The rule aiDplies where the vesting is at birth. {White V. Hill, L. R. 4 Eq. 265.) "If you have a gift by wiU. to A. for life, and after Eule stated A.'s death to his children in terms which would give them ^ omer, an absolute interest in A.'s lifetime, and then you have a gift over simply in these terms, ' if A. dies without leaving children,' you are to construe the expression ' leaving ' so as not to destroy any prior vested interest. In other words, you construe it as meaning ' without leaving a child who has not attained a vested interest.' That must now be treated as well settled." (Per Eomer, L. J., in Re CobboU, [1903] 2 Ch. at p. 304.) Gift over before Shares are "payable," dc. — Mr. Hawkins continues: "Wherever a fund is given to " a person for life, and after his decease to his children, " and the vesting or payment of the shares of the children. "is postponed till a given age or marriage, a gift over 262 ■PAYABLE," "entitled." Bequest to A. for life, with remainder to his children at 21, with a gift over of the share of any dying before hiB share is "payable" : held to mean death tmder 21, and not death in the lifetime of A. 'Entitled.' Payable may refer to period of distribu- tion. Death before "receiving" a legacy. "of the share of any of the children will be construed "if possible to refer to death before the age or time "appointed for vesting or payment, and not to death "in the lifetime of the parent. " Thus, if the bequest be to A. for life, and after his " death to his children at twenty-one, with a gift over of "the shares of children dying before their shares become " payable, the gift over will be held to operate only on the " share of a child dying under twenty-one, and not on the " share of a child who attains twenty-one, and afterwards " dies in the lifetime of the parent. (Hallifax v. Wilson, "16 Ves. 168; Mocatta v. Lindo, 9 Sim. 56; Walker v. "Main, 1 J. & W 1; [Haydon v. Rose, L. R. 10 Eq. 224; see Mendham v. Williams, L. R. 2 Eq. 396; Whitman v. Aitken, L. R. 2 Eq. 414].) " So, if the gift over be of the share of any child dying "before he becomes 'entitled to the receipt of his share " (Hayward v. James, 28 B. 523); or before he becomes "'entitled in possession.' {Re Yates's Trust, 16 Jur. "78.)" " Entitled " may mean entitled in possession or entitled in interest; the former seems to be the prima facie con- struction. {Re Maunder, [1902] 2 Ch. 875; [1903] 1 Ch. 451, where the earlier cases are discussed.) In Wilks V. Bannister (30 Ch. D. 512), death "before payment" was held to mean before becoming entitled to payment. It must, however, be borne in mind that the context often shows "payable" to refer to the period of distribu- tion. {Bright v. Rowe, 3 My. & K. 316; Day v. Rod- cliff e, 3 Ch. D. 654.) The question sometimes turns on whether there is an express provision for the issue of the legatee {Re Willmott's Trusts, L. R. 7 Eq. 532); the cases, which aj^e discussed in Jarman on WiRs, pp. 2175 et seq . , are not altogether satisfactory . Where there is a gift over in the event of a legatee dying before "receiving" his legacy, a very difficult question arises. The decisions in Johnson v. Crook (12 Ch. D. 639), Re Chaston (18 Ch. D. 218), Re Wilkins HOWGEAVE V. CARTIEE. 263 (18 Ch. D. 634), and Ee GmiU&r ([1905] 2 Ch. 100) ignore the fact that the order of the House of Lords in The order in Minors v. Battison (1 A. C. 428) seems to imply that the slmsm.' divesting clause was void. The subject is discussed in Jarman on WiUs, at pp. 2184 et seq. Rule in Howqrave v. Cartier. — Mr. Hawkins con- SmgrmeY. G(ZTtl6T tinues: "In cases, more especially of wiLLs making pro- provisions for vision for children of the testator, or for other persons children not ,.,„., to be read as towards whom the testator places himseli %n loco contingent on parentis (see Farrer v. BarTcer, 9 Hare, 737), a prin- p^^lt^Weifs ciple or rule originally laid down with regard to settle- the intention ments, sometimes called the rule in Howgravev. Cartier ^^^^^^ ^^ ^ (3V. &B. 79), applies (c). " This principle or rule, as applied to settlements, is: — ' That prima facie a child having attained twenty-one, or marriage, is to be considered a child entitled to a por- tion' {per Lord Eldon, Hope v. Lord Clifden, 6 Ves. 609) ; and that the settlement is not to be read as making the provision for a child contingent on its surviving either or both its parents, unless the intention to do so is perfectly unambiguous." " If the settlement clearly and unequivocally makes the right of the child to a provision depend upon its sur- viving both or either of the parents, a Court of Equity has no authority to control that disposition. If the settle- ment is incorrectly or ambiguously expressed, if it con- tains conflicting and contradictory clauses, so as to leave in a degree uncertain the period at which, or the contin- gency upon which, the shares are to vest, the Court leans strongly towards the construction which gives a vested interest to the child, when that child stands in need of a provision, usually as to sons at twenty-one, and as to daughters at that age or marriage." (Hoivgrave v. Cartier, 3 V. & B. 85; [per Sir W Grant, M. E.J.) " Thus," continues Mr. Hawkins, " words importing the " necessity of survivorship have been got rid of on strength "of other expressions in Emperor v. Bolfe (1 Ves. sen. (c) It is sometimes called the rule in Emperor v. Iio!/e (En.). 264 HOWGKAVE V. CAETIEE. "208); Woodcock v. Duke of Dorset (3 Bro. C. C. "569); Hope v. Lord Clijden (6 Ves. 499); Howgrave "v. Cartier (3 V. & B. 79); King v. Hake (9 Ves. 438); "by the effect of a power of advancement, Poms y. "Burdett (9 Ves. 428); Walker v. Simpson (a will) (1 "K. & J. 713); on the word payable, Schenck v. Legh "(9 Ves. 300); Fry v. Lord Sherborne (3 Sim. 243}; " Jones V. Jones (13 Sim. 561 (a will)); on the language " of the gift over, Perfect v. Lord Curzon (5 Mad. 442); " Torres v. Franco (1 B,. & My. 649); Swallow v. Binns " (1 K. & J. 417); [^Jackson v. Dover (2 H. & M. 209); Re Knowles (21 Ch. D. 806)]. "In Dalton v. Hill (10 W. K. 396, V -C. W.), a " strong case, the bequest was to the testator's daughter for " life, remainder to her husband for life, remainder to the " children of the testator's daughter who should he living "'at her decease, the shares ,of the children to be vested " in them at twenty-one or marriage, but payment to " be postponed till the death of the survivor of the " daughter and her husband, with a gift over to the next " of kin of the testator, as if he had died without issue. " It was held that children of the daughter attaining "twenty-one, but dying in her lifetime, were entitled to " shares. " But if the settlement or will contain no provisions in- " consistent with the necessity of survivorship as a condi- "tion of the gift, the rule in question cannot be applied. " (Whatfordv. Moore, 3 My. & Cr. 270; Farrerv. Barker, "9 Hare, 737 (a will); Tucker v. Harris, 5 Sim. 538 (a "wiU); Bright v. Bowe, 3 My. & K. 316 (a will); " Hotchkin v. Humfrey, 2 Mad. 65; Fitzgerald v. Field, "1 Buss. 430; Bytheseay. Bythesea, 23 L. J. Ch. 1004 " (a will); [Re Hamlet, 39 Ch. D. 426].) " The rule in Howgrave v. Cartier is discussed in Jarman on Wills, pp. 2176 et seq. 265 CHAPTER XVIII. VESTING. Mr. Hawkins observes — "The word 'to x^st' has several senses, which it is Meaning of "important to distinguish. "1. Originally the word had reference only to real i. As applied " estate. As applied to estates in land, 'to vest' signifies "the acquisition of a portion of the actual ownership or "feudal possession of the land {'vestire' — seisinam dare " — infeodare: Spelman): the acquisition, not of an estate "in possession, but of an actual estate. The fee simple " being supposed to be carved out into parts or divisions " by the creation of particular estates, a grant to any per- " son of one of these portions of the fee vested him with, " or vested in him, an estate in the land. Thus 'vested' "is nearly equivalent to 'possessed.' "In this, its original sense, 'vested' has no reference Remainders "to the absence of conditional-neas or contingency. If after an estate " ... . • 1 -n. tail, vested. an estate tail be limited to A., with remainder to B., "the estate of B. is a 'vested' remainder, not because "the failure of issue of A. is considered an event certain "at some time or other to happen, as has been alleged "(Smith's View of Executory Interests, sect. 192): — "failure of issue of a person is an event altogether con- "tingent: — but because such a remainder vests in B. an " actual portion of the fee, though the time of its falling "into possession is wholly contingent and uncertain. B. " is invested with a portion of the ownership of the land. " All remainders, not vested, are in fact contingent, not " as being necessarily limited on an uncertain event, but " because their taking effect depends on the contingency " of their happening to vest during the continuance of 266 TESTED A^D CONTINGENT. "the particular estate which supports them, and which "maT determine at any moment. Thus 'vested' comes "to mean the opposite of 'contingent' or conditional. " But the word itself refers, as has heen said, not to con- "tingency, but to possession. Feame's definition. 2. Personal estate : "vested" in the civil law equivalent to unconditional or transmis- sible. " It is obvious that this division into ' vested ' and " ' contingent ' fails when applied to future executory "interests in land, not taking eSect as remainders. An " executory devise, after a fee simple, cannot be said to be "'vested,' as an estate, until it vests in possession; yet "it may be limited on an event absolutely certain to " happen, and is, therefore, not contingent. When, there- "fore, Fearne (C. E. Introduction, p. 1) divides 'vested "'estates' into (1) estates vested in possesion, and " (2) ' estates vested in interest, as reversions, vested re- " mainders, such executory devises, future uses, conditional " limitations, and other future interests as are not referred "to or made to depend on a period or event that is imcer- "tain,' he uses the expression 'vested in interest' in a " different sense from that which it bears as applied to a " remainder. Thus, the word is already losing its original "meaning. "2. The rules and expressions relative to the vesting of "personal estate have been derived in great measure from "the civil law. In that system (see Domat, L. iv. Tit. 2, "sect. 9) legacies not immediately payable are divided "into two classes: — (1) legacies payable at a future time " certain to arrive (as to which, dies legati was said cessisse, "though not venisse): and (2) conditional legacies, or " legacies payable on an event which might never happen. " The former class were transmissible to the representa- "tives of the legatee, if he died before the time of pay- " ment: the latter were not. " In speaking of the civil law rules, it is natural to use "the term 'vested' to denote the former class of legacies, "and 'contingent' to denote the latter. In the civil law, " therefore, ' vested ' is equivalent to unconditional and PERSONAL ESTATE. 267 "to transmissible: 'contingent' is equivalent to condi- " tional and to non-transmissible. " But it is obvious that this division is wholly inapplic- Ciyil law " able to the English law of legacies, which allows future such of them as " should he then dead leaving children, such children " should stand in the place of their parents; — it was held " that the children of children dead at the date of the will " could not take. " So if there be an immediate bequest to children as a " class, with a gift over of the shares of those dying before " their shares become payable, the gift over takes effect " in the case of children alive at the date of the will, and " subsequently dying in the testator's lifetime. {Cort v. "Winder, 1 Coll. 320.)" The Court will put a reasonable construction on the word "share." (Re Pinhorne, [1894] 2 Ch. 276; Re Pou-dl [1900] 2 Ch. 525; Re Whitmore, [1902] 2 Ch. 66 — the word "share" was also used in Re Musther, 43 Ch. D. 569, and Re Ilannam, [1897] 2 Ch. 39.) Mr. Hawkins continues — "Again in King v. Cleaveland (4 De G. & J. 477), " under a bequest to A. for life, and after his decease ' to "his children then living, or their representatives,' it "was held that there were so far two distinct classes of " legatees, that the representatives of children dying in the " testator's lifetime, but alive at the date of the will, were FORMS OF SUBSTITUTIONAL GIFTS. '^01 "entitled to share." [Ee Philips' Will, L. E. 7 Eq. 151; Bwrt V. Hellyur, L. R. 14 Eq. 160.] "And in Re Thompson's Trusts (5 D. M. G. 280), " under a bequ'est to the testator's children living at a " given period, and the issue of such of ' my said children ' " as should be then dead, the same construction was " adopted. " Th© different forms of igift above considered, as Forms of gift " regards the capacity of issue to take, depending on the ""'P'"^^ " timie of the death of their parent or ancestor, may be " thus stated: — "1. A gift to individuals, as to A. and B. or their i. Gift to A. "issue. Here Willing' v. Baine applies, and the issue take ti,eir issue, "by substitution for A. or B. dying in the testator's Ufc- Willing t. ",time or dead at the date of the will, whether the gift be "immediate or in remainder. " 2. A gift to the children of A. or their issue. Here, 2. Gift to "if the gift be immediate, Cort v. Winder applies, and or their issue." " the issue of a child dying in the testator's lifetime take, either imme- . . diate — Oort v. " but not, it would apptear, the issue of a child dead at the Winder— ox in "dlate,ofthewiU_. _ _ -— ;T " But if the gift be in remainder after a life interest, " Ive V. King applies, and, the gift being substitutional, "the issue of a, child who does not survive the testator "are excluded. "3. A gift to the children of A. living at a given 3. Gift to "period, and the issue of such as shall be then dead. f?^^.l'^™'\ .... . living at a " Here the ^ift to issue is independent, and the issue of a given period, "child dying in the testator's lifetime, or dead at the of cliildreu^'^ "date of the will, may be entitled. theudead. " Gifts to children, followed by directions that the " issue of deceased children shall take their parents' "shares, are ambiguous; and it would appear that no "general rules can be laid down to determine when such "gifts to issue are to be considered as substitutional, "and when as independent. " Two further questions arise respecting the capacity of 302 ISSUE MUST SUEVIVE STIRPS. Bequest to ohildreii of A. and issue of such as shall have died I issue : no issue can take who do not survive the stirps. Eule stated. " issue to take under a gift to oliildren and issue of chil- " dren concurrently (whether the gift to issue be substi- "tutional or independent); viz., 1. Whether the issue "must survive the stirps, or child through whom they "claim; and 2. Whether the issue must be living at the "period of distribution, where this condition is imposed " on the children, but not expressly on the issue. " First, where the bequest is to the children of A. liv- "ing at a given period, and the issue of such children as "shall have died before that period leamng issue, it is "settled that issue, in order to take, must survive their " own stirps. (Thompson v. Clive, 23 B. 282; Be WiM- " man's Trusts, 1 Jo. & H. 299.) " And the case would be the same, if the gift were to the " children of A., with a gift over of the shares of those who " should have died leaving issue to their issue. "Again, wherever the gift to the issue is by way of "substitution only, as if the gift be to A. for life with " remainder to his children or their issue, inasmuch as the " gift to the issue of any child carmot vest before the death " of that child, it seems tha,t issue who predecease their ow'n "stirps cannot be propierly entitled. {Crause v. Cooper, "1 Jo. & H. 207.)" "In no case can substituted issue take vested interests during their parents' lifetime." {Per Wood, V -C, Ee Bennett's Trust, 3 K. & J. 285.) Mr. Hawkins continues — " And it has been held that even where the gift to the "issue is independent, the same rule applies. (Be "Bennett's Trust, 3 K. & J. 285; Humfrey v. Humfrey, "2 Dr. & Sm. 49.) Thus where the gift was to A. and " B. at twenty-one, if then living, and the issue of either "that should be then dead (not dead leaving issue), such " issue taking their parent's share, with a gift over if both "died under twenty-one without issue, it was held that "issue of A. who predeceased him could not take. " (Humfrey v. Hum,frey, 2 Dr. & Sm. 49.)" It seems now to be established that the true rule is "if the gift be an original gift to issue, they need not survive the parent, but if it be a gift by substitution, MARTIN V. HOLGATE. 303 then they must survive the parent in ordior to be sub- stituted for the patent" {per Kindersley, V.-C, in Lcm- phier v. Bicck, 34 L. J. Oh. at p. 657, approved by Wickens, V.-C, in Be Merrick's Trusts, L. E. 1 Eq. 551, and by Joyce, J., in Ee Woolley, [1903] 2 Ch. 206); and it seems that the rule applies where there is a gift to a class of children living at a certain tjime and the issue of such of the children as might be then dead leaving issue. (Be Sndfh's Trusts, 7 Ch. D. 665, in which case, however, Thompson v. Clive and Be Wildman's Trusts were not cited.) Humphrey v. Humphrey seems to be in- consistent with the current of authority. Mr. Hawkins continues — " Secondly, whether the contingency of being alive at Bequest to 'the period of distribution is to be imported into the living at a ' gift to issue . given period, ^ and the issue "Where there is a bequest to the children of A. living °^ 8"'=^ **? . . . snail be then ^t a given period, and the issue (not the issue then/ dead: whether ' living) of such as shall be then dead, the preponderance survi^" the^^*^ ' ,of authority is against importing the condition of being given period, '^live at the pieriod of distjribution into the gift to issue. 'The authorities on this side are Lyon v. Coward (15 'Sim. 287); BarTcefr v. Barker (5 De G. & Sm. 753); '^nd Be Wildmm's Trusts (1 Jo. & H. 299) : while Mac- ' gregior v. Macgregor (2 Coll. 192) is contra. In Penny ' V. Clarke (1 De G. F. & J. 425) the Court weredivided: 'Knight Bruce, L. J., saying — 'It appears to me that ' the context requires us to read the words " issue of such " '. . .as equivalent to issue then living of such,' &c.:, 'and Turner, L. J., saying — 'I do not see why, because ' the gift to the first member of the body is contingent, ' the gift to the other member of the body should be . . . ' contingent also : or why the issue should not be held to 'have taken vested interests, as they would . . . have 'done had the gift been to them alone' (p. 431). The 'point is still unsettled." The point is now settled in favour of the view that the Martin v. contingency is not imported. {Martin y. Holgate,'L.~R,. "S'^"- 304 GIFT OVER IN CASE OF DEATH. 1 H. L. 175; Be Ortm's Trusts, L. R. 3 Eq. 375; Be WooUey, [1903] 2 Ch. 206.) Mr. Hawkins continues — " If the gift to the issue be not independent but substi- " tutional, as to the children of A. or the issue of amy " deceased child, Wood, V.-C, appeared to think that the "contingency should be imported. (Crause v. Cooper, "1 Jo. &H.207.)" In Be Merrick's Trusts (L. R. 1 Eq. 551 at p. 558), the Vioe-ChanceUor stated he was in error in throwing out that doubt, and observed: "I think there is substantially no difference whatever between the expressions ' or ' and ' and ' las regards that point, namely, whether or not the children should be obliged to satisfy the superadded con- dition of doing that which the parent was to do, namely, survive the tenant for life." Mr. Hawkins continues — " The point in question may often be settled by the "context: thus, if the bequest to children living at the "death ,ot A. and the issue of children who may be them " dead be followed by a gift over if there be no childrienj ".or issue of children living at the death of A., it is clear " that the contingency is to be imported. (Be KirJomcm's "Trust, 3 DeG. & J. 558.)" Gift to A., and "in case of his death," to B. "Where a gift of the absolute interest in property to " one person is followed by a gift of it to another in la " particular event, the disposition of the Courts is to put "isuch a construction on the gift over as will interferei "as little as possible with the prior gift. When death is "spoken of as a contingent event, a gift over in the event ",of death may well be considered to mean, not death at "any time, but death before a particular period, e.g., the "period of distribution: and thus the gift over may be "read as a gift by way of substitution and not of rei- "mainder. It is consequently a rule of construction " that— HOME V. PILLANS. 305 Rule. Where there is a bequest to one person, BequesttoA., ,,,,.(. and "mease and " in case of his death to another, the gift over of Ms death," is construed to take effect only in the event of gift oVer is the death of the prior legatee before the period of aTath^before payment or distribution, unless an intention appear ^^nbut^n* to the contrary. [Cambridge v. Rous, 8 Ves. 12 ; Ommaney v. Bevan, 18 Ves. 291 ; Home v. Pillans, 2 My. & K. 15.) Thus " a bequest to A. and in case of his death to B., is a gift absolute to A. unless he dies in the testator's lifetime. " A bequest to C. for life, and then to A., and in case of his death to B., is a gift absolute to A. unless he dies during C.'s life. " A bequest to A., vrhen and if he attain the age of twenty-one, and in case of his death to B., is a gift absolute to A. unless he dies under age." {Eome V. Pillans, 2 My. & K. 23.) The rule is the same vphere the bequest is to A. So a gift to and "m the event o/ his death" to B. {Re Mare's the event of Trust, 10 Hare, 171 ; tSchenk v. Agnew, 4 K. & J. to^B.^^ 405); or to A. and "if he die" to B. {King y. Taylor, 5 Ves. 806 ; \_Elliott v. Smith, 22 Ch. D. 236].) " A bequest to any person, and in case of his death to another, is an absolute gift to the first legatee if he sur- vives the testator" [the bequest being inwnediate]: "and this, whatever be the form of expression, as 'if he die,' 'should he happen to die,' 'in case death should happem to him,' and so forth. The event here contemplated being so inevitable that it cannot be deemed a contingencjy, the Courts have held that something else must be in- tended than merely to provide for the case of the legatee dying at some time or other: .... and so have read those words as if they had been 'in case of his death H. 20, 306 "in case of death" after life estate. Beqnest to A. or his issue. during the testator's lifetime,' in which event alone they have allowed the hequest over to take effect." {Home v. Pillans, 2 My. & K. 20; [per Lord Brougham, C.J.) Mr. Hawkins continues — "If the bequest be in remainder after a life interest, " the gift over is not restricted to death in the testator's " lifetime, but operates during the continuance of the life "interest {Kervey v. Maclaughlin, 1 Price, 264): but, in " accordance with the previous rule (Willing v. Baine), it " operates also in case of death during the testator's life- " time. " A gift to ' A . or his issue ' is equivalent to a gift to "A., and 'in case of his death' to his issue, and takes "effect in the same manner. {Salisbury v. Petty, 3 Hare, ",86.) And if there be two bequests to 'A. or his issue,' "one immediate and the other in remainder, the substitu- " ,tional gift takes effect down to the period of distribution "in each case respectively. (76.) " In Salishury v. Petty a bequest to A. or his issue, to " be paid at the. end of ttifelve months from the testator's "death, was held an immediate bequest; and that the " legatee, if he survives the testator, takes absolutely. "lb.; see decree, 3 Hare, 94. But see ante, p. 296.) Real estate. Real Estate. — " The rule appears to apply to devises of real estate, where the prior devise passes the fee simple. {Edwards v. Edwards, 15 B. 357; Randfield v. Rand- field, 8 H. L. C. 225.) Thus a devise to A. and his heirs, and in case of his death to B., is an absolute devise to A. if he survives the testator. And in a will made since 1837, a devise to A. simpliciter, and in case of his death to B., would, it should seem, receive the same •construction. Eule does not apply if a life interest only be given to the first taker. " In case of Death," folhiding a Life Estate only. — " But if the prior devise or bequest confers a life interest " only, the rule does not apply, and the gift over will take " effect by way of remainder, whenever the death of the "first taker may happen. Thus, in a wiU prior to 1838, IN CASE OF DEATH LEAVING CHILDREN. 307 " a devise of land to A., and in case of his death to B., is " equivalent to a devise to A. for life, with remainder to " B. (Bowen v. Scoufcraft, 2 Y. & C. 640.) So if per- "sonal estate be given to A. for life, with a gift over "in the event of his death to B. (Re More's Trust, 10 "Hare, 171.) " Where there was an absolute bequest and also a " bequest for life in the same will, the words ' in the event "of death' were construed differently with respect to "them. (Re More's Trust, 10 Hare, 171.) Gift in case of Death leaving Children, &c. — "A " bequest to A., 'but if he die andb leaving no children,' "to B. {Edumrds v. Edwards, 15 B. 357), is within the " rule, the words importing contingency being used with " reference to the event of death simply, and not to that of "death without leaving children. "A bequest to A., ' and in case of his death leaving Bequest to A., "children,' to his children, or to- A., 'and in case of his of his d^atii" "death not leaving a child,' to B., is ambiguous. The leaving chil- " words 'in case of may refer either to death simply (as ^„„^y " though a comma were inserted before the words ' leaving Lilians. "children'), in which case the rule would apply, and the "gift over b© restricted to the period of distribution: or " they may refer to death leaving or not leaving children, "i.e., to death under particular circumstances: in which " case the words importing contingency are satisfied by "the words being taken literally as referring to the "death of the legatee at any time (whether before or "after the period of distribution), under the prescribed "circumstances. The Courts lean rather to the former " construction. " Thus in Homer. Pillans (2 My . & K. 15) the gift was " to A. and B. when and if they should attain twentj^-one, " and 'in case of the death of either leaving children,' the ' share of the one so dying was given to her children. The ' ' gift over was held to be restricted to the contingency " of death under tu/enty-one leaving children, i.e., to the ■"period of distribution. It was said (p. 21)": "The 20 (2) 308 EDWARDS V. EDWARDS. inconsistency of treating as a contingency the event of all others the most certain, is not the only consideration which has swayed the Courts in seeking for qualifications to restrict the genferality of such clauses. The leaning in favour of vesting, and against a construction which would postpone the absolute enjoyment, and indeed keep in suspense the nature of the interest bestowed, has here, as in other branches of the law, operated powerfully in the same direction" (p. 21). [Per Lord Brougham, C] The authority of Home v. Pillans was recognised by the House of Lords in BandfieM v. Eandfield (8 H. L. C. 225). Mr. Hawkins continues — " So in Barker v. Cocks (6 B. 82), (where the bequesit "was (in remainder after a life interest) to A., B., and " C, share and share alike, but in case of the death of A. " without leaving issue, her share was to go to the others, "it was held that the gift over was restricted to death " before the period of distribution, the intention being " that each of the legatees should at that period take an "equal and indefeasible interest. Edwards v. Edwards. Deatli witli- out leaving issue re- stricted to the period of distribution in case of a deferred but not of an im- mediate ffitt. Doctrine of Edwards v. Edwards. — " It was laid down ' by RomiUy, M. R., in Edimrds v. Edu)cerds (15 B. 357), ' as a general rule, that where there is a bequest to A., but ' if he die leaving, or without leaving, issue or children, to ' B., — if the gift be in remainder after a life interest, the ' gift over will be -primd facie restricted to the event of ' death before the period of distribution : but that if the ' gift be immediate, the gift over wiU not be so restricted. 'And in Johnston v. Antrobus (21 B. 556), this rule 'was acted on, and under a bequest to A., his executors, ' administrators, and assigns, ' but in case he shall die ' leaving lawful issue,' then to trustees in trust for his 'children, the gift being immediate, A. having children ' was held to take for life only. " But this distinction appears to be scarcely tenable. A ' gift over on death leaving or without leaving children ' can hardly be restrained to death before the period of dis- ALTERNATIVE GIFTS OVER. 309 " tribution without some appearance of intention arising "from context (see Cooper v. Cooper, 1 K. & J. 658; "Gosling v. Townshend (on appeal), 2 W. R. 23, per "Lord Cranworth) : but, if the context furnishes ground "for the restricted construction, it does not seem to be " material whether the gift be immediate or in remainder. "In Johnston v. Antrobus, qu. whether the restricted " construction was not the right one. No general rule " can be laid down to determine where a gift over of the " share of a legatee dying without issue is substitutional, "and where not. {Ware v. Watson, 7 D. M. G. 248.) " If the gift over on the death of a legatee without issue "be of the share 'intended for' such legatee, it is clear " that the gift over is by -way of substitution only. (Ware "v. Watson, 7 D. M. G. 248;" [see Re Hai/ward, 19 Ch. D. 470].) The rule laid down by Lord RomiUy (known as the Fourth rule in fourth rule in Edwards v. Edwards) has now been abro- ^^yx^^dsy. ^ ' Edwards gated. {O'MaJioney v. Burdett, L. E. 7 H. L. 388; abrogated. Ingram V. Soutten, L. R. 7 H. L. 408; Ee Schnadhorst, [1902] 2 Ch. 234.) The true rule is that where there is an executory devise if the first taker dies without leav- ing a child, "the period to which the executory deVise will be referred will be the period of the death of the first taker, unless there are other circumstances and direc- tions in the will which are inconsistent with that suppo- sition." (Per Lord Hatherley, L. R. 7 H. L. at p. 404.) Alternative Gifts over. — Mr. Hawkins continues: Clayton v. "Where real or personal estate is given with words of De-rise to A "limitation implying the absolute ownership, but there and Ms heirs, "follow alternative gifts over in the event of the first a., hisexecu- " taker dying: with and vdthout issue or children, which ^rs, &e.,with ,, , ,f . . 1 -J. • 1 ■ gilts over m exhaust all contingencies, so that, it unrestricted in the event both "point of time, their combined effect is to reduce the ^/and'iot'''" "interest of the first taker to a life estate only, a ground leaving issue : "is presented for restricting the gifts over to the period restricted to "of distribution, in order to avoid an inconsistency with death before . . •' the period of the prior absolute gift. possession or distribution. '"^10 CLAYTON V. LOWE. "Thus, if real estate be devised to A. and his heirs, "with, a gift over upon the death of A. leaving children, "to his children, and a gift over upon the death of A. "not leaving children to B., the devises over may be "restrained to the death of A. before his estate falls into "possession, whether the devise be immediate or in re- "mainder. {Clayton v. Lowe, 5 B. & Aid. 636; Gee "v. Mayor 'of Manchester, 17 Q. B. 737; [Olivant v. Wright, 1 Ch. D. 346].) "So if personal estate be given to A. 'for his own "use and benefit absolutely,' with the like altemativB "gifts over (Galland v. Leonard, 1 Sw. 161; D0 Costa "v. Keir, 3 Russ. 360): or to A., his executors, adminis- "trators, and assigns, with the like gifts over. {John- " ston V. Antrobus, 21 B. 556.) "But if the devise or bequest be to A. simplieiter, " without words implying an absolute interest, the ground "for this construction fails, and the gifts over will in "general be held to take effect whenever the respective "events happen. (Cooper v. Cooper, 1 K. & J. 658; "Gosling v. Townshend, 17 B. 245; ib., on appeal, 2 "W. R. 23.) In Gosling v. Townshend, the bequest "was in trust to pay and divide in equal shares among " the legatees, with gifts over if they should happen to "die leaving, and without leaving, issue respectively: — "it was held, that the legatees took life interests only. [Bmvers v. Boiuers, L. R. 5 Ch. 244; DuffiU v. Duffill, [1903] A. C. 491.] Gift over on Gift over to the "Survivors" of Legatees. — "It is to one of^several " ^® observed, that where the bequest is to several, with a legatees to the "gift over, in the event of any dying without issue or "children, of their shares to the stvrVivors, although the " contingency of death without issue cannot per se be "restricted to death before the period of distribution, yiet "if the survivorship can be referred to that period, the "same result will be attained. As in Evams v. Evans " (25 B. 81), where the gift was to several, if one died "without issue his share to go to the survivors: — it was survivors. 311 SURVIVOESHIP. 'held that the survivorship, and therefore the gift over, 'was to be restricted to the period of distribution. But ' qu . whether in this case the survivorship did not more 'properly refer to the last antecedent, viz., the dying 'without issue in the lifetime of the other legatee or ' legatees, upon the principle of White v. Baker (2 De ' Gr. P. & J. 55, see next rule) : which would have allowed ' the gift over to take effect upon the death of one legatee, 'living any other of them. "Similarly, the gift over in case of the death of one Gift over 'legatee to the survivors, may be restricted by the sur- death before 'vivorship being referred to the period, not of distribu- '^'estiiig. ' tion, but of Vesting, according to the doctrine of Crazier 'v. Fisher (4 Kuss. 398). Thus, in Bouverie v. Bouverie Bomerw\^. ' (2 Phill. 349), where the gift was to A. for life, with ^'>^''■^^ ' remainder to her children at twenty-one ; ' in case one 'dies, the others to have share and share alike; the sur- 'vivor to have the whole:' — ^it was held that children ' who attained twenty-one and died in the lifetime of A . ' took absolutely, and that the gift over was restricted to 'the event of death before attaining twenty-one. CeIPPS V. WOLCOTT. " Where property is given to those of certain persons "who shall be 'surviving' at some period, but the exact " period is not specified, the general leaning of the Courts " in favour of vesting- is a reason for construing the sur- " vivorship to refer to as early a period as possible: and it " was formerly the rule (both with regard to real and per- "sonal estate) that 'surviving' should, whenever possible, "be construed 'surviving the testator,' so that the objects "might be ascertained at the testator's death. The true "rule perhaps is, that survivorship primtd facie refers to " the point of time mentioned in the gift in nearest juxta- " position with the words: and as the point of time so "mentioned is generally the period at which the gift is "limited to take effect, it has become established as a 312 CKIPPS V. WOLCOTT. Cripps T. Wolcott. "Words of surviyorsliip refer primd facie to the period of distribution. "rule of construction, in opposition to the earlier authft- "rities, tliat — Rule. In bequests of personal estate, words of survivorship are primd facie to be referred to the period of payment or distribution, and not to the death of the testator. ( Cripps v. Wolcott, 4 Mad. 11; Neathwai/Y. Reed, 3 D. M. Gr. 18; Hearn v. Baker, 2 K. & J. 383.) Thus, if the bequest be to A. for life, and after his decease to his surviving children, " surviving" is construed to mean " living at the death of A." {Neathway v. Reed, 3 D. M. G. 18.) So if the bequest be to A. for life, and after his decease to B., C, and D., or the survivors, those living at the death of A. will take the whole fund. {Hearn v. Baker, 2 K. & J. 383.) " I consider it, however, to he now settled, that if a legacy he given to two or more, equally to be divided between them, or to the survivors or survivor of them, and there be no special intent to be found in the will, that the survivorship is to be referred to the period of division. If there be no previoius interest given in the legacy, then the period of division is the death of the testator, and the survivors at his death will take the whole legacy. . . . But if a previous life estate be given, then the period of division is the death of the tenant for life, and the sur- vivors at such death will take the whole legacy." {Cripps V. Wolcott, 4 Mad. 15; [per Leach, V.-C.].) Mr. Hawkins continues — ",The rule applies where the gift is to A. for life, with "remainder to his surviving children 'when they should "attain twenty-one;' and the survivorship is referred to " the death of A. {Hujfam v. Hubbard, 16 B. 579.) "J-D. Carver v. Burgess (7 D. M. G. 96), the gift was of "a legacy to each of the testator's daughters for her sepa- KUJLE APPLIES TO REAL ESTATE. 31^ fate use, and ' if she has any children the principal to .be divided among them after her death if they should attain twenty-one, if not, to be divided among her svr- viving sisters : ' one of the daughters having died leaving a child who afterwards died under twenty-one, it was held that the survivorship was to be referred to the death ,of such child (being the period of distribution) and not ,to the death of the daughters. "Where the bequest was to such persons as A. should by deed or will appoint, and in default of appointment to his surviving brothers and sisters, and A. died without lexercising the power, it was held that the brothers and gisters living at the death of A. Avere entitled. (Davies V. Thorns, 3 De G. & Sm. 347.) "Jf the bequest be to A. for life, and after his death to H the tenant his surviving children, and A. dies in the testator's life- the testator's timte, the survivorship is to be referred to the death of lifetime, sur- ' . ^ . ... TiTorship IS to the testator (being the period of distribution), and not be referred to to the death of A. (Spiirrell v. Spurrell, 11 Hare, 54.) ^eath.^ ^ '"^ " So if the bequest be to A . for life, remainder to B . for life, and after the decease of B. to his children, or the survivors, and B. dies in the lifetime of A., the survivor- ship is to be referred to the death of A . , and not to that of B. {Daniell v. Daniell, 6 Ves. 297; [Hmvard v. Collins, L. R. 5 Eq. 349].) Real Estate. — "It is not yet settled whether the rule The rule in in Cripps v. Woloott applies to real estate. {Kaddelsey jpfkoJ' V. Adams, 22 B. 271 .) The older authorities are strongly apph'es to real estate in favour of referring survivorship to the testator's death . Thus under a devise to A . for life, and after his death to his surviving children, the devise was held to vest in the children living at the testator's death. (Doe V. Prigg, 8 B. & Cr. 231.) But in Buckle v. Fawcett (4 Hare, 536), Wigram, V.-C, was strongly opposed to the establishment of a distinction between real and per- sonal estate in this respect." Shortly after Mr. Hawkins wrote it was decided that 314 LAST ANTECEDENT. th'e rule in Cripp's v. Woleott applies to real estate. (-Be Gregson's Trust Estate, 2 D. J. & S. 428.) Contrary Intention. — "But," continues Mr. Hawkins, " the rule will readily yield to indications of a contrary " intention, where a different point of time is mentioned "in immediate connection with the words of survivor- "ship (6). " Thus where the gift was to A . for life, with remainder "to B. and C. or the survivors, with a direction that if B. " should not survive the testator, her children should stand " in her place, it was held that the survivorship referred to "the death of the testator. (Rogers v. Towsey, 9 Jur. "575.) In Blackmore v. Snee (1 De G. & J. 455), the " testator's death was adopted as the period of survivor- "ship; but qu. how far this case is consistent with the "rule. Bequest to A. for life, re- mainder to B. and C. , but if either die in the lifetime of A., ttie whole to the sur- vivor : survi- vorship re- ferred to the death of the legatee dying firet. Survivorship referred to last Antecedent. — "Again, if "the bequest be to A. for life, with remainder to B. "and C. equally, but if either should die in the lifetime " (or before the death) of A., the whole to the survivor, " the point of time mentioned in immediate connection " with the words of survivorship being, not the death of "A., but the death of B. or C. in his lifetime, the words "are held to refer to the event of one of the legabeeis " surviving the other, and not to the event of one of the "legatees surviving the period of distribution: — ^so that " if both die in the lifetime of the tenant for life, the gift "vests in the representatives of the survivor. (Scur field "v. Hoives, 3 Bro. C. C. 90; White v. Balcer, 2 De G. "F. & J.55.)" "Where there is a bequest to A. for life, and after his death to B. and C., or the survivor of them, some meaning must, of course, be attached to the words 'the survivor.' They may refer to any one of three (S) This is quoted with approval hy Joyce, J., in Se Foultney, [1912] 1 Ch. at p. 250. The Court of Appeal overruled Joyce, J.'s decision (56 Sol. J. 667), but the Editor submits that Mr. Hawkins' statement is accurate. PERIOD OF VESTING. 315 events: to one of the persons named surviving the other, to one of them only surviving the testator, or to one of them only surviving the tenant for life; and in the absence of any indication to the contrary, they are taken to refer to the latter event as being the more probable one to have been referred to (c) . But where, as in the pre- sent case, the bequest is to A. for life, and after his death to B. and C, and in case either of them dies in the life- time of A., the vsfhole to the survivor, it is pla;n that the words in their natural import refer to the one surviving the lother." {Per Turner, L. J., White v. Baker, 2 De G. F. & J.55; [at p. 64].) Some doubt seems to be thrown on Scurfield v. Howes by the decision of the Court of Appeal in Re Picktvorth, ([1899] 1 Ch. 642), which can be distinguished from White V. Baker. The cases are discussed in Jarman on Wills, pp. 2134 et seq. Mr. Hawkins continues — " But if the gift be to A. for life, with remainder to B. "and C, and in the event of the death of either in the " lifetime of A., the share of the one so dying to he trans- " ferre^ to the survivor, the immediate antecedent being "the period of transfer, and not the death of one of the " legatees, the rule applies, and the survivorship is referred ' ' to the period of distribution . {Little Johns v . Household, "21 B. 29. [See also Be Pickworth, [1899] 1 Ch. 642].) Surmvorship referred to Period of Vesting. — " Where Survivorship "the bequest is to one for life, with remainder to his chil- period of " dren with words of survivorship, and the interests of the '^^s*"'?- " children are to vest at a given age or marriage, the con- j?™^/" ^ " struction may be affected by the leaning of the Courts " against making a provision for children subject to the "additional contingency of surviving their parents, and "' the words of survivorship may be referred to the period "of vesting and not of distribution: 'surviving' being "held to mean 'surviving so as to attain twenty-one.' (c) Approved by Farwell, L. J., in JSe Poultneij, 56 Sol. J. 667. 316 SUEVIVORSHIP. Bequest to A . for life, re- mainder to his children at 21 or mar- riage, "with benefit of sur- vivorship.'* ' (Crozier v. Fisher, 4 Euss. 398; Weedon v. F ell, 2 Atk. ' 123; Salisbury v. Lambe, Amb. 383.) As in Bouverie 'v. Bouverie (2 Phill. 349), where the gift was to A. ' for life, with remainder to his children when they should 'attain twenty-one: 'in case one dies, the others to have 'share and share alike: the survivor to have the whole.' " So if the bequest be to A. for life, with remainder to ' his children at twenty-one or marriage, ' with benefit of ' survivorship,' the latter words are construed to refer ' only to the case of children dying under twenty-one un- ' married, and not to the case of a child attaining twenty- ' one and afterwards dying in the lifetime of A. (Tribe 'v. Neivland, 5 De G. & Sm. 236; Knight v. Knight, 25 'B. Ill; Berry v. Briant, 2 Dr. & Sm. 1; [Corneck v. 'Wadman, L. R. 7 Eq. 80].) " So where the bequest was to trustees in trust to apply ' the interest for the benefit of the children till the youngest attained twenty-one, and then all the said children or the survivors were to be let into possession of the property, it was held that the interest of a child who attained twenty-one, but died before the youngest attained that age, was not divested in favour of those living when the youngest attained twenty-one. {Crozier v. Fisher, 4 Russ. 398.) "But where the gift was to A. for life, and on her decease the interest to be applied for the use of her children till they should attain twenty-one, and then the principal to be paid to the survivors, the only gift being in the direction to pay, it was held that children who survived A. alone could take. (Turing v. Turing, 15 Sim. 139.) So where the gift was a direction to divide among children when the youngest attained twenty-one, 'with benefit of survivorship.' (Vorley v. Bidhardson, 8 D. M. G. 126.) So in Be Craiv%all's Trust (8 D. M. G. 480). Survivorship, Indefinite or Substitutional. — " The rule " in Cripps v. Wolcott, referring words of survivorship to ■'the period of distribution rather than the death of the INDEFINITE OR SUBSTITUTIONAL, 317 "testator, applies only where the gift to survivors is sub- " stitutional, and does not decide the question when the " survivorship is substitutional, and when it is indefinite, " so as to create a joint tenancy, or a tenancy in common "with cross remainders. " A gift to several ' and the survivors or survivor,' is Gift to several " clearly substitutional, and equivalent to a gift to them aurrivora or "or the survivors or survivor.' {Cripps v. Wolcott, 4 survivor. "Mad. 11; Wagstaff v. Oroshy, 2 CoU. 746.) So a gift "to several, 'and the survivors' {BroKfn v. Bigg, 7 Ves. "279), is substitutional. "And it seems that a bequest of personal estate to Bequest to . . several ' several equally to be divided between them, and the " equally to " survivors and survivor of them,' without a gift over, is ^etweenthem "prima facie substitutional, and vests absolutely in those andthesur- " living at the period of distribution. {Stringer v. survivor of "Phillips, 1 Eq. Ca. Abr. 292; M'Bonald v. Bryce, 16 them." "B. 581; Hodson v. Micklethmaite, 2 Drew. 294.)" In Page v. May (24 Beav. 323), Lord EomiHy, M. K., confessed that he could not reconcile his decision in M' Donald v. Bryce either with principle or the authori- ties, and in Corneck v. W adman, L. R. 7 Eq. 80, the M. E. said: "I very much doubt the correctness of my decision in M'Donald v. Bryce, and I think that case ought not to be cited as an authority before me." Stringer v. Phillips was decided before the rule in Cripps V. Wolcott was established. Mr. Hawkins continues — " But a devise of real estate to A. and B. and the sur- " vivor of them, their heirs, and assigns, as tenants in " common, creates a joint tenancy for life, with several ' ' remainders in fee . (Barker v . Gyles, 3 Bro .P.O. To ml . "104.) Bequest to Several, " or " those Living at a given Period. " If a testator gives property to several persons, or to " those of them who shall be alive at a particular period, "the latter words are generally intended, not as a fresh " gift engrafted on the former, but as a qualification of the 318 BKOWNE V. LORD KENYON. Browne t. Lord Kenyan. Bequest to several, " or " to such of them as shall be living at a given period : y none are living at that period, all are held to take. Bequest to A. for life, re- mainder to his children ' ' or the sur- vivors. " " original gift, so as to introduce into it the condition of " surviving the specified period. The Courts however lean " so strongly in favour of vesting, that the words in ques- ■' tion are considered to import, not a condition, but only " a preference in favour of those living at the given time: ■' so that, failing any of those to whom preference is given, "the original gift to all remains unaffected; and it is a " rule of construction that — Rule. A bequest to several, or to a class, " or-" to such of them as shall be living at a given period, is construed as a vested gift to all, subject to be divested in favour of those living at that period, if there be such ; and if none are then living, all are held to take. [Browne v. Lord Kenyon, 3 Mad. 410 ; Sfurgess v. Pearson, 4 Mad. 411 ; Belk v. Slack, 1 Keen, 238.) Thus if the gift be to A. for life, with remain- der to his children, or such of them as shall he living at his decease, and no child is living at the death of A., all the children are entitled, as if the gift had been to A. for life, with remainder to his children simpliciter. [Sturgess v. Pearson.) So if the gift be to A. for life, and after his decease to his children or the survivors : — the rule in Cripps v. Wolcott being applicable. [Browne v. Lord Kenyon.) " The obvious meaning is, that i£ one only survived the tenant for life, he should take the whole. It is in expres- sion therefore a vested gift to the two as tenants in common, subject to be divested if one alone should survive the tenant for life; but which never was divested, because that event did not happen. The two brothers therefore took vested interests as tenants in common, and the money is now divisible between their representatives. It may be well doubted whether this was the real inten- DIRECTION TO SETTLE SHARES. '^^9 tion, and whether the testator did mean that either brother should take any interest without surviving the tenant for liie: but the force of the expression is other- wise." {Browne v. Lord Kenyon, 3 Mad. 416; [per Sir J. Leach, V. -C.J.) " So a bequest to 'A. or his issue,' is a vested interest Bequest to "in A., subject to be divested upon his death before the ['^- °^^^<^ " period of distribution in favour of his issue, if any, then "living. {Salisbury v. Petty, 3 Hare, 86.) " The same rule applies to substitutional gifts gene- " rally, though not introduced by the word 'or.' " Thus, if the bequest be to A. for life, with remainder "to B. and C. equally, ' and in case of the death of either "in the lifetime of A., the whole to the survivors living "at his decease:' — if B. and C. both die in the lifetime " of A., the representatives of both take the fund equally. " {Harrison v. Foreman, 5 Ves. 207.) " But if the gift over be to the survivor (not, to the "survivor living at the decease of A.), the survivorship " would be referred to the death of the legatee who died "first, and the representatives of the survivor would be " entitled, although the survivor predeceased the tenant "for life. {White v. Baker, 2 De G. F. & J. 55.) "Again, if there is a bequest to several legatees abso- "lutely, with a direction that upon the death of any of "them before the period of distribution, the share of the "one so dying shall go to his children or issue: the gift "being vested subject to be divested in favour of chil- " dren or issue (if any), the representatives of those dying "without issue will be entitled. {Smither v. Willock, "9 Ves. 233; Hervey v. WLaughlini 1 Price, 264; Gray "v. Garman^ 2 Hare, 268.) Directions to settle Children's Shares. — "If there is a Bequest to "gift to children or legatees, the shares being given abso- foUowed'by "lutelv in the first instance, followed by a direction to directions to , , PI J? 1 1 ^®*tle daugh- " settle the shares of some of the legatees upon trusts ters' shares: "which do not exhaust the whole interest:— subject to take'^X^^*^'''' "the qualifying trusts, the legatees take their shares lutely, subject to the trusts directed. 320 LASSENCE V. TIERNEY. Lasnence v. Tierney. Accruing share not subject to the qualifying trusts. ' ' absolutely . (Whittell V . Dudin, 2 J . & W . 279 ; Hulme "v. Hulme, 9 Sim. 644; Mayer v. Toumshend, 3 B. " 443.) As if the shares of daughters be settled on them- " selves for life, with remainder to their children: — the " shares of those dying childless pass to their represen- "tatives." The rule (sometimes called the rule in Lassence v. Tierney (1 Mac. & G. 551)) has been repeatedly followed, and was recognised by the House of Lords in Hancock V. Watson ([1902] A. C. 14). Mr. Hawkins continues; "In Ware v. Watson (7 D. M. G. 248), shares were "given to children absolutely, with a clause of accruer " between them, followed by a direction to settle the share "of each child being a daughter: it was held that the "direction to settle did not apply to the accrued shares ' ' of daughters . Sn; parte West. DeTise or bequest to several, with a direction that the shares of those dying without issue shall accrue to the Ex PARTE West. " If property be given to several, with a direction that " in certain events the shares of one or more of them shall " go over and accrue to the others, it is a nice point ' ' whether that which is directed to go over by the clause " of accruer can be said to include that which has already "been operated on by the same clause: in other words, "whether the force of the clause of accruer is not ex- "hausted, when it has once operated on each division of "the property. The disposition to hold interests once " vested to be,, as far as possible, indefeasible in the donees, "favours this construction: and it is established as a rule, "in the absence of expressions indicating a contrary in- " tention, that — Rule. A clause of accruer of the shares of devisees or legatees does not, prima, facie, operate on shares which have already accrued under the clause in question. Thus, if real or personal estate be given to A., B., and C, as tenants in common, with a direction EX PARTE WEST. ^21 that if any of them die without issue, the share of clause of ao- the one so dying shall be divided among the "^^^^f^ciT^' survivors : — if A. and B. successively die without operate on ao- •^ orued snares. issue, the original share of B. will accrue to C, but not the share which accrued to B. upon the death of A. {Ux parte West, 1 Bro. C. C. 575 ; Crowder v. Stone, 3 Russ. 217 ; Douglas v. Andrews, 14 B. 347.) "Where a man gives a sum, suppose of 1,000?., to b© divided amongst four persons, as tenants in common; and that if one of them die before twenty-one or marriage, it shall survive to the others: if on© dies, and three are living, the share of that one so dying will survive to the other three; but if a second dies, nothing will survive to the remainder but the second's original share: for the accruing share is as a new legacy, and there is no further survivorship." {Per Lord HardwicTce, 3 Atk. 80; [Pain V. Benson].) Mr. Hawkins continues — "But if A. and B. both died in the lifetime of the " testator, no doubt upon the testator's death the original "shares of both of them would accrue to C. "The rule applies where the word 'portion' is used "Portion,' "instead of share. (Bright v. Eowe, 3 My. & K. 316.) "Srterest." "So if the word be 'part,' as where the property was " devised to three, with a direction that as each died, his " or her ' part ' should go to the others then living. {Good- " ivin V. Finlayson, 25 B. 65.) " In Douglas v. Andrews (14 B. 347) it was said that if " the ' share and interest ' of the legatee was given over, "the word 'interest' would carry the accrued share: " sed qu." [See Ee Henrique's Trust [1875], W. N. 187; and Be Ghaston, 18 Ch. D. 218. J Contrary Intention. — " But if an intention is expressed Contrary in- " of keeping the ©state or fund in an aggregate mass, with the^subj^t oT " a gift over of the whole to persons in remainder, the rule ?i^* is to be H. 21 322 WHEN ACCRUING SHARES SURVIVE. kept together as an aggre- gate fund. Gift of accru- ing shares "in manner aforesaid." is excluded, and the accrued shares will survive with the original shares. " As if lands be devised to several as tenants in common in tail, with remainder as to the shares of those dying without issue to the survivors in tail, icith remainder ■over. (Doe v. BirJchead, 4 Exch. 110.) " So if personal estate be given to A., B., and C, with a direction that the shares of any of them dying without issue shall accrue to the survivors, and in the event of all dying without issue, the whole is given over to D.: — upon the death of one without issue, the accruing shares will not vest absolutely in the others, liable only to be divested on the death of all without issue; but on the death of each legatee the accrued share will survive to the others. (Worlidge v. Churchill, 3 Bro. C. C. 465; Dmiglas v. Andrews, 14 B. 347.)" " If the intention is clearly expressed of keeping the fund in one aggregate mass, the general rule does not apply. Observe what an inconsistency would arise if it were otherwise. Suppose there were four or five children, one of whom died without leaving issue, his share would go to the survivors; but if one of such surviving children afterwards died without issue, his accrued share would go to his legal personal representative, while his original share would go over to the survivors; but suppose that afterwards they all died without issue, then the legal personal representative must be divested of the accrued shares, in order that the whole fund might go over in mass to the parties entitled in that event." {Douglas v. Andrews, 14 B. 355; [Per RomiUy, M.R.J.) Mr. Hawkins continues — " Again, if the clause of accruer directs the shares to go over to the survivors 'in manner aforesaid,' or 'in manner thereinbefore directed concerning the original shares,' the accrued shares will be subject to the same trusts (including the clause of accruer) as the original shares. {Milsom v. Awdry, 5 Ves. 465; Goodman v. Goodman, 1 De G. & Sm. 695.) DOUBLE CLAUSE OF ACCRUER. 323 Double Clame of Accruer. — "It appears that the rule Double clause " does not extend to prevent la clause giving over the " shares of legatees dying under given circumstances, from Marsden. " operating on shares which may have accrued to them " under another clause in the bequest. " Thus, if the gift be to A., B., and C, 'equally, with " a direction that the share of any who may die without " leaving children shall go tO' the survivors equally, and " that if any die leaving children, his share shall go to "his children: — if A. die first without leaving children, "and B. afterwards die in the lifetime of C, the children "of B., if any, will take his accrued as well as original, "share: although, if B. died without children, his original "share only would survive to C. (Eyre v. Marsdetn, 4 "■'My. & Or. 231; Leeming v. Sherratt, 2 Hare, 14.) Benefit of SufvivorsMp. — "A gift to several, 'with " benefit of survivorship,' carries over the accrued as well "as original shares. (Be Crawhall's Trust, 8 D. M. G. "480.)" 21 (2) 324 CHAPTEE XX. CHARGES,- LIABILITY TO DEBTS, ETC. Existing law. Gift to the widow of any interest in land liable to dower excludes her. DOWER. Existing Law. Mr. Hawkins observes — " The Dower Act reverses the rule of construction just "considered (a), and, moreover, deprives the widow of " the right of election between her dower and the interest "devised to her: viz., by enacting that — Rule. In wills executed on or after January 1, 1834, as regards (only) the dower of widows married after January 1, 1834 : " Where a husband shall devise any land out of which his widow would be entitled to dower if the same were not so devised, or any estate or interest therein, to or for the benefit of his widow, such widow shall not be entitled to dower out of or in any land of her said husband, unless a contrary intention shall be declared by his will." (Stat. 3 & 4 Will. 4, c. 105, s. 9.) " A devise to the widow of lands not liable to dower, or "a bequest to her of personal estate, is not, either before "or since the Dower Act, construed as a gift in lieu of "dower." (a) This is the rule stated j)os<, p. 326 (Ed.). DOWER ACT. ^^^ Sects. 4 and 5 of the Dower Act, 1833, give rise to the following rule — Rule. In wills executed on or after January 1, 1834, as regards (only) the dower of widows married after January 1, 1834 : Every testamentary disposition of land excludes absolutely or pro tanto the right to dower (^). (Stat. 3 & 4 Will. 4, c. 105, ss. 4, 5.) Sect. 4. "No widow shall be entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime, or by his will." Sect. 5. "All partial estates and interests, and all charges created by any disposition or will of a husband, and all debts, incumbrances, contracts, and engagements to which his land shall b© subject or liable, shall be valid and effectual as against the right of his widow to dower." Thus a devise to trustees for sale bars the widow's dower and fteebench. {Lacey v. TliU (L. R. 19 Eq. 346); Thompson v. Bmra (L. R. 16 Eq. 592) seems to be inconsistent with this as to fteebench.) Dower^OM Law. Mr. Hawkins' rules and introductory remarks in regard to the law not affected by the Dower Act are as foUows: — " In wills not subject to the provisions of the Dower "Act (3 & 4 WiR. 4, o. 105), aR devises of land liable "to dower of course take effect subject to the widow's "rights in that respect: but if the will indicates an in- "tention to dispose of the lands adversely to her right, "the widow, if taking any benefits under the will, is put "to her election. Such an intention may appear in two " ways: (1) by the gift to the widow herself of an interest "in the land, implying that such interest is to be taken (b) These are Mr. Hawkins' words, but he did not state this rule in large print. 326 DOWEE : OLD LAW. "by her in lieu of dower; (2) by the devise of the land "to other persons in such a way, that the disposition " would be defeated by the assertion of the right to dower "out of it. But on both points the presumption is (in " wills not Bubject to the Dower Act) against the construc- "tion which would put the widow to her election. Old law. Devise to the widow of part of the land liable to dower does not put her to elec- tion. Nor a gift of an annuity out of the land liable to dower. " First, as regards the intended exclusion from dower "by a gift of an interest in the land to the widow her- "self,^ — the rule, prior to the Dower Act, is as follows: — Rule. In wills executed (c) before January 1, 1834, and in other wills so far as regards the dower of widows married on or before January 1 , 1834, A devise to the testator's widow of part of the land liable to her dower is not, prima facie, con- strued as a gift in lieu of dower, so as to put the widow to her election as regards the remaining land liable to dower. [Laurence t. Laurence, 2 Vern. 365 ; 3 Bro. P. C. Toml. 483 ; Birmingham V. Kirwan, 2 Sch. & Lef. 444.) And a gift to the widow of an annuity charged on land liable to dower does not put her to election as regards dower out of the land charged. (Bir- mingham V. Kirwan, 2 Sch. & Lef. 444 ; Hall v. Hill, 1 D. & War. 94 ; Holdich v. Holdich, 2 Y. & C. C. C. 18.) (c) ' ' The saving clause (sect. 14) of the Dower Act enacts, ' That this ' ' Act shall not extend to the dower of any widow who shall have been or " shall be married on or before January 1, 1834, and shall not give to any " will, deed, contract, engagement, or charge executed, entered into, or " created before January 1, 1834, the effect of defeating or prejudicing " any right to dower.' "It would appear that a will executed before 1834 is not brought " within the Act by being republished subsequently to 1834 by codicil." [Note by Mr. Hawkins.] DOWER : OLD LAW. 327 " Secondly, a devise of lands liable to dower to other "persons beneficially, does not necessarily import an in- "tention on the part of the testator to devise the land " otherwise than subject to the legal charges to which his " estate therein is incident, among which is (prior to the " Dower Act) the widow's right to dower. It is con- "sequently the rule that — Rule. In wills executed before January 1, oidiaw. 1834, and in other wills so far as regards the ofVmJsis dower of widows married on or before January 1, devTae'oTthem 1 ggd^ ■ subject to the right to Every devise of lands liable to dower is prima dower. facie construed as a devise subject to the right to dower : in order to .put the widow to election, it must appear that her demand of dower by metes and bounds would be repugnant to the disposition. [French v. Davies, 2 Ves. j. 576; Birmingham v. Kirwan, 2 Sch. & Lef. 444 ; Ullis v. Lewis, 3 H. 313; Gibson Y. Gibson, 1 Drew. 42.) Thus a devise of " the lands called A.," being lands liable to dower, to trustees in trust to pay the rents to one for life, with remainders over, does not put the widow to her election. And a devise of the lands to trustees in trust for Devise of sale does not exclude the right to dower: as the to dower to ' ^ j_i 1 1 1 1 • t trustees in Widow may concur, or tne sale be made subject trmtformu to dower. {Mlis v. Lewis, 3 H. 310 ; Gibson v. the widow to Gibson, 1 Drew. 42.) election. Mr. Hawkins' observations on th^ese rules are omitted. MOETGAGES. Existing Law — Locke King's Act. Existing Lam. — Mr. Hawkins observes: "The Act " 17 & 18 Vict. 0. 113, does not establish on this subject 328 liOCKE KING'S ACT. Existing law. In the absence of intention, the mort- gaged estate is primarily liable. Locke King's Act. " a new rule of construction, but enacts that, in the absence " of any intention on the part of the testator appearing " to the contrary, evidenced either by will or by any docu- " ment, the mortgaged estate shall, as between the persons " claiming under the testator, be primarily liable. Wills "made before Jan. 1, 1855, are not within the provisions "of the Act." Rule. '' When any person shall, after the 31st day of December 1854, die seised of or entitled to any estate or interest in any land or other hereditaments which shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, and such person .shall not, by his will or deed or other document, have signified any contrary or other intention, the heir or devisee to whom such land or heredita- ments shall descend or be devised, shall not be entitled to have the mortgage debt discharged or satisfied out of the personal estate or any other real estate of such person, but the land or hereditaments so charged shall, as between the different persons claiming through or under the deceased person, be primarily liable to the pay- ment of all mortgage debts with which the same shall be charged " Provided also, that nothing herein contained shall affect the rights of any person claiming under or by virtue of any will, deed, or document already made or to be made before the 1st day of January, 1855 " (d). [The Real Estate Charges Act, 1854, s. 1.] {d) " It would appear that the repubUoation by codioU since 1855, of a " win made before 18S5, would not bring the will, if containing a devise " of the mortgaged estate, within the provisions of the Act." [Note by CONTRARY INTENTION. 329 By the Real Estate Charges Act, 1867, the word " mort- Vendor's lien, gag-e" (where the testator dies after December 31, 1867) is deemed to extend to any lien for unpaid purchase-money upon any lands or hereditaments purchased by a testator. By the Real Estate Charges Act, 1877 (where the Leaseholds, testator dies after December 31, 1877), leaseholds are in- cluded in the operation of the Acts. Contrary Intention. — "In the construction of the wiU Contrary „ Tf> loii cT-> intention. 01 any person who may die after the olst day oi Decem- ber, 1867, a general direction that the debts or that all the debts of the testator shall be paid out of his personal Greneral estate shall not be deemed to be a declaration of an in- <.(, p^y debts tention contrary to or other than the rule established by i^ ^°^- the said Act, unless such contrary or other intention shall be further declared by words expressly or by necessary implication referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real estate." (Real Estate Charges Act, 1867, 8. 1.) In the construction of the will of a person dying after Nor a charge December 31, 1877, " such contrary intention shaU not residuary be deemed to be signified by a charge of lor direction for ^^^^ estate, payment of debts upon or out of residuary real and per- sonal estate or residuary real estjate." (Real Estate Charges Act, 1877, s. 1.) This supersedes the decision in Eno v. Tatham (3 De G. J. & S. 443; affd. 1 N. R. 529, sub nom. Eno v. Tatam), and similar cases. It wiU be remembered that Mr. Hawkins wrote in 1863; his observations on what shows an intention to devise cum onere are omitted. The contrary intention is not shown by the testator Nor by throwing the primary burden of a mortgage debt on a burXn'of special fund. " To the extent of this primary fund the debt on a ^ J. 1/ special fund. Mr. Hawkins.] \_Rolfe v. Ferry, 3 D. J. & S. 481 ; and see Re Mcom, [1894] 1 Ch. 303.] Mr. Hawkins did not pat the above section in large print as it is not strictly a rule of construction. 330 DEVISE SUBJECT TO A MORTGAGE. operation of the Acts is, in my opinion, excluded, but no farther." (Per Chatterton, V.-C, in Corballis v. Cor- ballis, L. E. 9 Ir. 309, at p. 320.) Thus, a direction that a mortgage debt on W. shall be paid out of the proceeds of sale of B. exonerates W. to the extent of these proceeds, but does not indicate a " con- trary intention" that W. is also to be exonerated out of the general personal estate (Be Birch, [1909] 1 Ch. 787), but a direction to pay debts, " except mortgage debts, if any, on B." implies that the mortgage debts are to be paid, and indicates a "contrary intention." (Re Valpy, [1906] 1 Ch. 531.) Earlier law. Devise of lands subject to a mortgage does not imply that the devisee should takecMOT on ere. Earlier Law. The rule under the earlier law is thus stated by Mr. Hawkins. "Previously to the Act 17 & 18 Vict. c. 113 (Locke " King's Act), debts created by the testator, and secured " by mortgage, were payable primarily out of the personal "estate in the same way as debts not so secured; and "the right of the devisee of the mortgaged estate to " exoneration out of the personalty was not held to be "taken away except by a clear expression of intention: it " being a rule of construction that — Rule. In wills made before January 1, 1855 : A devise of lands to A., subject to a mortgage, does not imply an intention that the devisee should take cum onere, so as to render the land devised primarily liable. P. Wms. 386 ; Bickham v 763 ; Goodivin v. Xee, 1 K. [Serle v. 8t. Eloy, 2 Cruttwell, 3 My. & Cr. & J. 377.) Mr. Hawkins' observations on this rule are omitted. IMPLIED CHARGE OP DEBTS. 331 Debts and Legacies. ImpUed charge of Debts. Mr. Hawkins observes — " Although lands not charged with debts are now liable " to the claims of all creditors, the question whether any "and what lands of the testator are by his will charged "with debts is still of importance; both because a charge "of debts deprives specialty creditors of their priority (a), " and also because lands charged with debts are applied in "lOrder of administration before lands not charged. The " rule of construction relative to implied charges of debts "is as follows, viz.: — Rule. A direction by the testator that his debts impUed shall be paid, charges all his real estate therewith, aebtf* ° (Shallcross v. Finden, 3 Ves. 738 ; Clifford v. Lewis, Direction that 6 Madd. 33.) debts be paid, PnflTP'Pfl fill But a direction by the testator that his debts the real estate. shall be paid by his executors, charges only the real ^^^tbtebe** estate, if any, devised to them. (Keeling v. Brown, paid ty the sxccutovs 5 Ves. 359 ; Powell v. Robins, 7 Ves. 209.) charges only the real estate " I agree that if a testator does manifest in any part them, of his win that his debts shall be paid, they are to be paid before any disposition of what he has power fo dispose iof. 'After payment of his debts,' means that until his debts are paid, he gives nothing: that every- thing he has shall be subject to his debts. To give those words any effect, they must charge the real estate. I am very clearly lof opinion, that wherever a testator s.ays, he wills that his debts shall be paid, that will r;ide over every disposition, either as against his heir-at-law or devisee; and the words 'after my debts paid' mean the same thing." {Shallcross v. Fmden, 3 Ves. 739; [per Arden, M. E.J.) " The authorities further determine, that where the tes- (a) Thia priority was taken away by the Administration of Estates Hinde Act, 1869, s. 1 (Ed.). Palmer's Act. 332 DIRECTION TO PAY DEBTS. tator gives a general direction that his debts shall be paid, this amounts to a charge of the debts generally on the real estate, at least in all cases where the real estate is after- wards disposed of by the will. But an exception obtains where the direction that the debts shall be paid is coupled with the direction that they are to be paid by the execu- tor, as is the case here; in which case it is assumed that the testator meant that the debts should be paid only out of the property which passes to the executor." {Cook v. Daivson, 29 B. 126; [per Eomilly, M. E.].) Mr. Hawkins continues — " It is immaterial by what form of words the direction to pay is conveyed : thus the expression ' my debts being satisfied, I give, &c.' (Harris v. Ingledew, 3 P W. 91); or, 'after payment of debts, I give, &c.' (Shallaross. V. Findcn), creates a charge of debts. And where the testator devised and bequeathed ' all my freehold, copy- hold, and leasehold estates and aU the residue of my personal estate after fuyment of my debts,' it was held that the latter words applied to the real estate, as well as to the personal 'Ostate. {Withers v. Kennedy, 2 My. &K. 607.) " It would appear that a general direction to pay debts charges all the real estate, and not only that devised by, the will. In Shallcross v. Finden (3 Ves. 738) it was said: 'Is there a single case, in which the testator has said, "after payment of my debts," and the Court has said, it shall not affect all the real estate, whether specifi- cally devised 'Or ru>t V Contrary Intention. — " In a few cashes {Thomas v. Brit- " nell, 2 Ves. Sen. 313; Palmier v. Graves, 1 Keen, 545), a " general direction to pay debts, followed by a specific " appropriation of particular estates for the payment, has " been held not to create a charge on the real estate not " specifically appropriated: but the doctrine of these oases "is doubtful." These cases were, however, approved by James, L. J., in Corser v. Cartwright, L. E. 8 Ch. at p. 974. LANDS DEVISED TO EXECUTOES. 333 Lands devised to Executors charged. — Mr. Hawkins Senveiiv. Whitakev. continues: "It was formerly doubted whether a direc- Direction to "tion that debts should be paid by the executors would executors to " do more than charge the property coming to their hands charges real " qua executors, i.e., the personal estate. But it is settled ^state de-nsed "that such a direction prima facie constitutes a charge " of debts on all the property derived by them (jointly) " under the will, whether real or personal {Henvell v. "Whitalcer, 3 Russ. 343; Dover v. Gregory, 10 Sim. "393; Harris v. Watkiris, Kay, 438): although not given "to them in the character of executors. " And it is immaterial whether the real estate is devised whether in " to them as trustees or beneficially. (Dover v. Gregory, beneficially. "10 Sim. 393; Dormay v. Borrodaile, 10 B. 263.)" "I am of opinion that when a testator devises all his real estate to his executors and directs them to pay all his debts, that constitutes a charge on the real estate, although they take no beneficial interest in it." {Hartlamd v. Murrell, 27 B. 204; \per RomiUy, M. R., at p. 206].) " Where there is a direction that the executors shall pay the testator's debts, followed by a gift of aU his real estate to them, either beneficially or in trust, all the debts will be payable out of all the estate so given to them. The same rule applies whether the executors take the whole beneficial interest, as in Henvell v. Whitaker, or only a life interest as in Finch v. Hattersley (3 Russ. 345, n.), or no beneficial interest at all as in Hartland v. Murrell." (Per Fij, J., in Be Bailey, 12 Ch. D. at p. 273, quoted with approval in Be Tanqueray-Willaume and Landau,- 20 Ch. D. 465.) Effect of Charge on Devise to Executors. — Mr. Haw- Direction to kins continues: "It is to be observed that where the exe- pay debts "cutors are d''irect6d to pay debts, and real estate is ei^largesthe estate devised devised to the same persons as trustees, the effect of to them, "the charge will often be to enlarge the estate of the "trustees, and so to extend the subject of the charge. " (See ante, p. 188.) Thus if, the executors being " directed to pay debts, real estate be devised to them in 334 DEVISE TO ONE EXECUTOR. ' trust to pay the rents to A. for life, and after his death ' in trust for B . indefinitely, the executors will take the ' ' legal fee simple by force of the charge, and not an estate "for the life of A. only {Spence v. Spence, 10 W. E.. ■'605); and thus B. will (even in a will before 1838) take an equitable fee simple by the rule in Challenger "v. Shephard. [Ante, p. 173 .j "Again, if the testator's wife is made executrix, and directed to pay debts, and real estate is devised to her, with a direction that she should receive the rents bene- "ficially for life only, and that after her death the pro- "perty should go to other persons, it would appear that "the wife should take the whole legal fee by force of "the charge {Finch v. Hattersley, 3 Russ. 345, n.); "though in Cook v. Dawson (29 B. 123, on app. 9 " W . E. . 434) this construction seems not to have been "adopted. " In Creaton v. Creaton (3 Sm. & G. 386), it was held "that a mere general direction to pay debts, the trustees " being also executors, had the same effect of vesting in " them the entire legal fee: but qu. as to this case." Creaton v. Creaton was followed in Marshall v. Gin- gell (21 Ch. D. 790) and Be Brooke ([1894] 1 Ch. 43). See antej Chap. XIII. at p. 188. Lands de- Devise to One of several ExeC^tors^ dc. — Mr. Ha'w- eeverafexTOu- ^^^^ Continues: "But if there are several executors, a tors only, not ' ' direction to the executors to pay debts does not charge ° ' "lands devised to one of them only. {Warren y . Davies, "2 My. &K. 49.) "Again, in Symons v. James (2 Y. & C. C. C. 301), "where the executors were to pay debts, and the real " estate was devised to trustees (who were not the exe- " cutors) upon trust as to a small portion only for the two "persons who were executors, it was held that the debts "were not charged on the portion devised in trust for "the executors beneficially. " So in Wasse v. Heslingfon (3 My. & K. 495), where "the bulk of the real estate was devised to one only of DIRECTION TO PAY LEGACIES. 336 "the executors, and a small portion was devised to the " executors jointly in trust for other persons, it was held "that the latter portion was not charged: but qu. how "far this case and Braithwaite v. Britain (1 Keen, 206) "are consistent with the rule as established by Henivell "v. Whitaker." The question is one of intention to be collected from the whole will. {Re Bailey, 12 Gh. B. 2&8.) Mr. Haw- kins continues — " But where the bulk of the real estate was devised to "the widow, the sole executrix, absolutely, and a small "part was devised to her for life only, with remainder " over, it was held that the whole interest taken by her " under the will (including the part given for life only) "was subject to the charge. (Harris v. WatJcins, Kay, "438.) "In Clowdsley v. Pelham (1 Vern. 411) lands devised "to the sole executor in tail, he being directed to pay "debts, were held to be charged. "A direction that the debts shall be paid by the Direction to " executors may have the effect of charging the real estate, pay debts, "though not expressly devised to them, as if the testator ^15^°^'^^''^* "direct his debts to be paid by his executors out of his residue oi ilie " estate^ i.e., real and personal estate. And if the tes- gonaf estate^" "tator, after directing his debts to be paid by his exe- "cutors, devises the residue of his real, or real and " personal, estate, it may perhaps be held that, upon the "principle established by Gr&ville v. Browne (see post), " with respect to legacies, the debts are charged on the real "estate by force of the word 'residue.' {Dowling v. ''Hudson, 17 B. 248; see Harris y. WatUns, Kay, 438.) Direction to Executors to pay Legacies. — " In Preston Whether a "v. Preston (2 Jur. N. S. 1040), it was held by Stuart, exeratorsto " V.-C, following an old case of Alcock v. Sparhaivlc (2 pay legacies, "Vern. 228), that the doctrine of Henv'ell v. Whitaker real estate "applied to directions to pay legacies^ so that a direc- t;^™*^^;*^ ti,g "'tion to the executors to pay legacies would charge the legacies. "legacies on all the real estate deVised to them either 336 EXONEEATION OF PEKSONALTY. Land Transfer Act, 1897. "beneficially or in trust for other persons. But this "doctrine is directly opposed to Parker v. Fearnley (2 " S. & Stu. 592): and in the cases adduced in support of "it, except Alcock v. Sparhawk, the charge of legacies " on the real estate is referable to the rule in Greville v. "Browne, viz., where the gift of legacies is followed " by a gift of tlie residue of the real and personal estate." This question is discussed in Jarman on Wills, pp. 1999 et seq. Note. — Where a testator dies after December 31, 1897, his executors can sell the real estate in order to pay debts by virtue of sect. 1 of the Land Transfer Act, 1897; this deprives the rules of construction as to an implied charge of debts of some of their practical importance. Exoneration of Personalty. Mr. Hawkins continues — " The personal estate being the primary and natural "fund for payment of debts, and the real estate having " formerly not, in the absence of a charge, been liable to "the claims of simple contract creditors, it became the " established rule to construe provisions for payment of " debts out of the real estate as intended only to provide " an auxiliary fund, and not to disturb the order of legal " liabilitY: and it is a rule of construction that — Bootle V. BlundelL To exonerate the personal estate from payment of debts, the in- tention must appear, not only to charge the real estate but to dis- charge the personal. Rule. " The charging the real estate ever so anxiously for payment of debts is not of itself sufficient to exempt the personal estate." [TaitY. Lord Northwick, 4 Ves. 824.) In order that the personal estate may be exonerated, the intention must appear not only to charge the real estate, but to discharge the personal. [lb. : Duke of Ancaster v. Mayer, 1 Bro. C. C. 4-34 ; Watson v. Brickivood, 9 Ves. 447 ; Bootle v. Blundell, 1 Mer. 193 ; [_Re Banks, [1905] 1 Ch. 547].) EXONERATION OF PERSONALTY. 337 And a direction to sell the real estate for pay- ment of debts does not alone furnish the intention of exemption, [lb. : Rhodes v. Rudge, 1 Sim. 79.) " Thus, a direction by the testator that his real estate " shall be sold, and the proceeds applied in payment of " debts and legacies (Rhodes v. Rvdg'e, 1 Sim. 79), or of "funeral expenses and debts (McCleland v. Shaw, 2 Sch. " & Lef . 538), does not make the real estate primarily "liable." " I take it to b© certain, that it is not enough for the Rule stated, testator to have charged his real ©state with, or in any manner devoted it to, the payment of his debts; that the rule of construction is such as aims at finding, not that the real estate is charged, but that the personal estate is discharged . " Then it comes to this — upon each particular case, as it arises, the question will be, Does there appear, from the whole testamentary disposition taken together, an intention on the part of the testator, so expressed, as to convince a judicial mind that it was meant, not merely to charge th© real estate, but so to charge it as to exempt the personal." (Per Lord Eldon, Booth v. Blundell, 1 Mer. 220, 230.) " It has long been the settled rule of Courts of Equity, that the direction of the testator to sell or mortgage his real estate for the payment of his debts and legacies, is not alone evidence of the intention of the testator that the personal estate should be exempt from those charges, and amounts only to a declaration that th© real estate shall be so applied to the extent in which the personal estate, which by law is the primary fund, shall be insuffi- cient for those purposes." (Rhodes v. Rudge, 1 Sim. 84; [Per Leach, V.-C.].) Contrary Intention. — Mr. Hawkins continues: " The Intention to " intention to exonerate the personal estate may be in- ^°^j^^ ^' "ferred from a number of minute circumstances, as in Blundell. " Bootle V. Blundell (1 Mer. 193), where a term of 500 H. 22 338 SPECIFIC BEQUEST OP PERSONALTY. Specific be- quest of the personal estate. Greene v. Greene, " years created to pay debts was held to be the primary "fund: one of the indicia being that the costs of admiais- "tering the real and the personal estate were charged " together under the trusts of the term." But the intention must clearly appear from a con- sideration of the whole will, as in Kilford v. Blaney (31 Ch. D. 56). Mr. Hawkins continues — " But the cases in which the rule has been held to be " excluded, and the real estate to be the primary fund, are " chiefly where (in addition to the provision made for " payment out of the real estate of all those charges which " would primarily affect the personal estate) the .whole "personal estate has been specifically given. "As in Greene v. Greene (4 Madd. 148), where the " testator gave to his wife, for her sole and absolute use, " aU his ready money, securities for money, goods, chattels, " and other personal estate whatever which he should die "possessed of, and devised his real estate to trustees in " trust to seU, and out of the proceeds to pay bis debts,; "funeral expenses, and the expenses of proving his will, " and to invest the residue in trust for bis wife for Hfe, "with remainder to his children: it was held that the " personal estate was exonerated. And the same construc- "tion was adopted in the very similar cases of Michell v. " Michell (5 Madd. 69); Driveir v. Ferrand (1 R. & My. " 681); and Blount^. Hvpkins (7 Sim. 43); and in Plenty "v. West (16 B. 173). [As to these cases, see Re Banks, [1905] 1 Ch. 547; and Jarman on Wills, pp. 2067, 2068.] " On the other hand, in CollisY. Robins (1 De G. & Sm. "131), the personal estate was held not to be exonerated; "the form of gift being almost precisely equivalent, but " without provision for the discharge of the funeral and " testamentary expenses out of the real estate. "In La/nce v. Aglionby (27 B. 65), the testator gave "part of his personal estate to his wife specifically, and devised his real estate in trust for sale and to pay thereout " his debts, funeral expenses, and legacies: by a codicil he LEGACIES AND ANNUITIES. 339 " gave all his personal estate to his wife. It was held that " the bequest by codicil was, like that in the will which " it replaced, specific, and that the personal estate was "exonerated. " If the real estate is devised to be sold to pay debts, " and the residue after payment of debts is to be added to " the personal estate, the real estate is of course made the "primary fund. (Webb v. Jones, 2 Bro. C. C. 60.)" "The personal estate is primarily liable for the pay- Buckley, J. 'e ment of debts and funeral and testamentary expenses; the*rSe°'° but the testator may exonerate it, either by express words or by an indication of intention to be found in the will which leads to the Court being judicially satisfied that it was the testator's intention to exonerate it. It is not enough that he charges the real estate with the payment of debts. It is necessary to find, not that the real estate is icharged, but that the personal estate is discharged. This need not he done by express words, but there must be found in the will plain intention or necessary implication to operate exoneration." {Per Buckley, J., in Re BamJcs, [1905] 1 Ch. 547.) Trust to ■puy a 'particular Debt. — Mr. Hawkins oon- Trust to pay tinues: "The rule with respect to exoneration does not debt. " apply so strongly to the case of provision being made Sancox v. " out of the real -estate to pay a particular debt, — as a " mortgage debt oharged on other portions of the pro- "perty: in such case the real estate so pointed out may " be the primary fund. (Hanco-x v. Abbey, 11 Ves. 179; "Evans v. Cockeram, 1 CoU. 428;" [Corballis v. Cor- ballis, 9 L. E. Ir. 309, at p. 319].) Hancox v. Abbey is discussed in Jarman on Wills, pp. 2072 et seq. Mr. Hawkins' guarded expression " does not apply so strongly " seems to indicate that he felt some doubt as to the validity of that decision, which seems to be inconsistent with Noel v. Lord Henley (7 Pri. 241). Liability to Legacies and Annuities. — Mr. Hawkins Legacies and continues: " Legacies ajid annuities gfiven generally, with- 22(2) 340 BLENDED REALTY AND PERSONALTY. Gift of annuity charged on a particular estate. " out reference to any particular fund, are of course pay- "able out of the personal estate, and the rule with respect " to exoneration ajppliies to them. " But where particular legacies or annuities are gjiven " with reference to funds or property on which they are "charged, the rule is different, and the funds so pointed " out may be primarily or solely liable. " Thus if real estate be directed to be sold, and a sum " of money is given out of the proceeds, this is not a " general legacy, and the personal estate is not liable. " {Hancox v. Abbey, 11 Ves. 179; Dickin v. Edwards, 4 "Hare, 273.) " So if the testator gives annuities, and proceeds to " charge them on particular parts of his real estate, the " real estate so charged may be primarily liable {Creed "v. Creed, 11 CI. & F. 491; Lomaa v. Lcmmx, 12 B. "290; Ion v. Ashton, 28 B. 379); and so if legacies he "given with the like charge. {Jones v. Bruce, 11 Sim. "221; LcmvpUer v. Despard, 2 Dr. & W. 69.) But if " an annuity or legacy be given, charged on a particular " fund, and the fund in question fails, the personal estate "will in general be secondarily liable. {Marm v. Cop- " land, 2 M&dd. 223.)" This paragraph is referred to with approval by Page Wood, V.-C, in Paget v. Huish (9 Jur. N. S. 906). Blended Real and Personal Estate. Mr. Hawkins continues — "We may distinguish three gradations in the form of 'disposition of mixed real and personal estate: (1) the ' two may be given together, but retaining their several 'qualities: (2) the real estate may be converted, and the 'proceeds igiven along with the pbrsonal estate: or (3) ' the real lestate may be converted, and the proceeds de- ' clared to be part of the personal estate, and disiposed ' of as such . The first form of disposition does not affect 'the liability to charges; the second places the real and ' personal estate on an equality, as regards those charges EGBERTS V. WALKER. 341 "to which both are liable; the third subjects the real to "the charges affecting the personal estate. " First, as regards the effect of conversion in destroying " the prvmasry liability of the personal estate, the rule is " that— Roberts v. Walker. Rule. If real estate be directed to be sold, and if personal the personal estate and proceeds of the real estate proceeds of are given together, subject to charges, — as debts, glven^^ ^^ legacies, or annuities, — the real and personal arf UaWeto^^ estate are liable to the charges pari passu, in charges i>ari '^ J- J- ' passu. proportion to their respective values. [Roberts v. Moberts v. Walker, 1 R. & My. 752 ; Salt v. Chattaway, 3 B. ^^^^''■ 576; see Simmons v. Rose, 6 D. M. Gr. 411 ; \_Re Spencer Cooper, (1908) 1 Ch. 130J.) But if real and personal estate be given together But if the real , . 1 T J^ 1 • 7 • , V estate is not subject to charges, but the real estate is not directed converted, the to be sold, the personal estate remains primaril)' StTk liable. (BougUon v. Boughton, 1 H. L. C. 406 ; ^-Zt^'^ Tench v. Cheese, 6 D. M. Gr. 453.) HougUm^. Boughton. " Thus, if the testatot gives his real and personal estate " to trustees in trust to sell, and out of the moneys to arise "to pa^ his debts, foetal expenses, and legacies, and to "hold the residue in trust for A., and A. dies in the tes- " tator's lifetime, the real and personal estate are liable "to debts and legacies pari passu, even as between the "heir-at-law and next of kin. {'Roberts v. Walker.) " But if the testator gives his real and personal estate to "trustees, in trust out of the rents and profits of the "real estate and the dividends and interest of the personal " estate to pay certain annuities and legacies, and subject "thereto in trust for A., the primary liability of the "personal estate remains notwithstanding the charge. " {Boughton v. Boughton.)" "When a testator creates from real estate and per- Kuie stated. ^42 BOUGHTON V. BOUGHTON. eonal estate a mixed and general fund, and directs the whole of that fund to be applied for certain stated pur- poses, he does, in effect, direct that the real and personal estates which have been converted into that fund shall answer the stated purposes and every of them pro rata, according to their respective values." (Roberts v. Walker, 1 R. & My. 752; [per Leach, M. R., at p. 767].) " I agree in the opinion expressed by the Lord Chan- cellor upon that point, that the case is in that respect wholly governed by Baughton v. BougJiton, which, as I understand it, establishes this distinction, that where there is a mixed fund of real and personal estate, the mere fact of the real and personal estate being given together does not constitute them a mixed fund for the payment of debts, legacies, or annuities ; but that in order to effect that purpose there must be a direction for the sale of the real estate, so as to throw the two funds absolutely and inevitably together to answer the common purposes of the will." {Per Turner, L. J., Tench 'v. Cfeese, 6D.M. G. 467.) Mr. Hawkins continues — " In Falkner v. Grace (9 Hare, 280), the real and per- " sonal estate being given in moieties, but with no direc- " tion for conversion, and an annuity being directed to "be paid out of one "moiety at the rents and profits of ■'the real estate and income of the personal estate, the "charge was held to be apportionable : but this case was " before the authority of Boughton v. Boughton was well "established." It is not necessary that there should be an absolute conversion of the real estate for the rule in Roberts v. Walker to be applicable; it is sufficient that there should be clear evidence of intention to create a mixed fund. (Allan r. Gotf^ L. R. 7 Ch. 439; in 'which Turner, L. J.'s remarks in Temch v. Cheese, supra, are observed upon; Howard v. Dryland, 38 L. T. 24.) Falkner V. Grace was approved by James, L. J., in Allan V. Gott (L. R. 7 Ch. at p. 446). CHARGES PAYABLE PARI PASSU. 343 Roberts v. Walker not confined to express Charges. — SobertsY. Tv/T TT !• • (imi T • p-nT/ Walker not Mr. Jbiawkms continues: The doctrine oi Uoaerts V. confined to "Walker, that conV-erted real estate eriven together with tteoBarges ' ^ o o expressly "personal estate is liable pwi passu to charges, appears directed to be "to apply hot only to those charges which are expressly the mixed " directed to be paid out of the mixed funds, but to aU fnnds. "charges to which both fund's are liable. Thus if the "trusts of the personal and proceeds of real estate are " to pay legacies, but not debts, nmrertheless debts as well "as legacies would, it should appear, be payable pari "•passu out of the funds, whether there be or be not a "general charge of debts on the real estate. "And it would seem that eVen if no charges were ex- "pressly laid on the blended funds, yet all charges to "which both funds were impliedly liable would be pay- "able pari passu out of them. Thus if legacies be given " simpliciter, and the residue of the real and personal " estate be directed to be sold, and the proceeds given to "certain persons, the leigacies being under the rule in " Greville v. Broimie (see post) charged on the real estate "would be payable out of the residuary real and personal " estate pari passu : — whereas, if there were no direction " to convert, they would be payable primarily out of the " personal estate. "But the rule in Roberts v. Walker does not extend " to create any charge on the real estate, to which it would "not be otherwise (although secondarily) liable ; thus a "gift of personal estate and converted real estate together "would not have the effect of making legacies or an- "nuities, given sitmpliciter, a charge on the real estate. "Secondly. If, however, the proceeds of real estate be " throivn into the personal estate, a charge is created: it " being the rule that — Kidney v. Coussmakee. Rule. A direction that real estate shall be sold, and the proceeds form or be considered as part of the residuary personal estate of the testator, sub- 344 KIDNEY V. COUSSMAKEE. Couismaker. Direction that the proceeds of real estate sold shall he pari of the residuary per- sonal estate, subjects the real estate to all charges. jects the real estate to all charges affecting the personal estate. [Kidney v. Coussmaker, 1 Ves. J. 436 ; 2 Ves. ,J. 267; Bright v. Larcher, 3 De G. & J. 148; Field Y. Peckett, 29 B. 568.) And the real and personal estate are liable to the charges, pari passii. {^Simmons v. Rose^ 6 D. M. G. 411.) " Thus, if real estate be directed to be sold to answer "certain charges, and the surplus proceeds are 'to go as "the residue,' .or 'be disposed of in the same manner "as,' or 'be added to' the residue of the jDorsonal estate, "legacies given sifnipiiciter are a charge on such surplus "proceeds." Rule stated. " The testator has directed a fund to be set apart out of the amalgamated assets to answer the annuity, and has directed the fund so set apart to be disposed of as the, residuary personal estate had been disposed of. Now, the residuary personal estate had been directed to be applied in payment of the debts, legacies, and funeral and testamentary expenses, and the authorities show that a direction for the disposition of the proceeds of real estate in the same way as the residuary personal estate is as much a direction to apply the fund to the puxpiosep to which the residuary estate is applicable, as if those pur- poses had been declared with respect to the procieeds themselves. Kidney y. Coussmaker is a case of great im'portance and authority on this point. . . In that case Lord Loughborough said: 'It is not going a great way too far to say, that where real estate is devised to executors, and there is a declaration that they shall seU, and the produce shall go as the residue of the personal estate, that it shall go subject to all that would aSedt the residue of the personal estate, i.e., to debts.' There- fore, on the authorities as well as on the words of this wiU, I think that the proceeds of the real estate are charged with the legacies." (Per Turner, L. J., Bright V. Larcher, 3 De G. & J. 156.) GREVILLE V. BROWNE. 345 Mr. Hawkins oontinues — " There can be no doubt that the rule subjects the Knle extends "converted real estate to- all charg-es affecting the per- ^^a^^s^ "sonal estate, and not to those only with which it is " expressly charged. Greville v. Browne. " It has been said that a testator generally intends the " legacies givien by his will to be a charge on his residuary "real estate, £ls well as on his personal estate: but (in the " absence of an express charge) they are held to be so " only when the residuary real and personal estate are " given together: — it being a rule of construction that — Rule. If legacies are given generally, and the Grevuu v. residue of the real and personal estate is after- oifT'^iega- wards given in one mass, the legacies are a charge °^^^^ SftT/^ on the residuai-y real as well as the personal the residue oi the real and estate. [Greville v. Browne, 7 H. L. C. 689; personal estate Wheeler v. Hoivell, 3 K. & J. 198 ; Gijett v. Wil- Kgacies Hams, 2 Jo. & H. 429.) IBrayY. Stevens, 12 Ch. D. Ttfe're^sf 162; Re Bawden, [1894] 1 Ch. 693; Re Balls, l^^''^^'' [1909] 1 Ch. 791.] " For nearly a century and a half this rule has been laid down and acted upon, that if there is a general gift of legacies, and then the testator gives the rest and residue of his property, real and personal, the legacies are to come out of the realty. It is considered that the whole is one mass; that part of that mass is represented by legacies, and that what is afterwards given, is given minus what has been biefore given, and therefore given sub] eot to the prior gift . ' ' {Per Campbell, C . , 7 H . L . C . 697.) " But for the preference shown to the heir, it would be clear to common sense, that if a testator gives certain legacies, and then gives the remainder of his real and personal estate, he must contemplate the payment of these 346 GEEVILXE V. BROWNE, previous gifts before the rest of his estate is disposed of." {Gyett V. Williams, 2 Jo. & H. 438; [per Page Wood, V -C.j.) Mr. Hawkins continues — " It is not, of course, essential that the real estate should "be directed to be sold; nor is it essential (as has been "sometimes suggested) that the gift of the residue should " be to the executor or executors: — it is sufficient that the " gift of the real estate should be residuary, and that the " real and personal estate should be comprised in one gift, "whether to trustees or to persons taking beneficially. "A gift of the residue of the testator's 'estate' is of "course within the rule. " But if the residuary real estate were given separately " from the personal estate, although to the same person, it " does not appear that the legacies would be a charge on "the real estate. Rule appKes, notwithstand- ing a specific devise of real estate, before the residuary clause. Preifious Devise of Real Estate. — "It appears to be "settled that the rule in GretMle v. Browne applies, " although there be a specific devise of part of the real " estate intervening between the gift of the legacies and "the residuary clause. {Francis v. Clemoiv; Kay, 435; "Wheeler v. Howell, 3 K. & J. 198; see Greville v. "Browne, 7 H. L. C. 700, 705.)" "I had some doubt whether where real estates had actually been previously devised, so that the term ' residue of real estate ' was strictly applicable to what was subsequently" [qu. pre- viously] "given, a charge of the legacies could be effec- tively made by the residuary form only of the devise. I think, however, that Bench v. Biles (4 Madd. 187) seems to have gone that length; and I am disposed to follow that authority." {Francis v. Glemow, Kay, 487; [per Page Wood, V.-C.].) "In reading a devise of real estate to one person and of personal legacies to another, and of the rest and residue of the real iand personal pro- perty to a third, we may see that there might be a mode of interpreting it reddendo singula singulis . . . but CONRON V. CONEON. 347 that is not the natural meaning of the words." (Per Lord Cranworth, 7 H. L. C. 700.) Contrary Intention. — Mr. Hawkins continues: "But " the rule does not extend to charge on the real estate sums " which are not given generally as legacies, but as pay- " ments directed to be made out of a fund derived ex- " clusively from personal estate. (Gyett v. Williams, 2 "Jo. & H. 429.) CoNEON V. CoNRON. " While, however, the disposition of the Courts has been " to subject residuary real estate to general legacies, the " course has also been to relieve specifically devised "estates from the effect even of an express charge: and " it has been established as a rule of construction that — Rule. A charge of legacies on the real estate, Cmrmv. or all the real estate, of the testator, does not, a charge of prima facie, charge lands specifically devised. thereaUstate (Spang v. Sponq, 3 Blie:h, N. S. 84; Conron v. does not \ r if -r^^^ ^' o \ charge lands Conron, 7 H. L. C. 168.) speoifioaUy devised. " The true rule which I consider to be deducible from the case of Spong v. 8'pong is, that a mere charge of legacies on the real and personal estate (and ' on all the real and personal estate ' must mean exactly the same thing) does not of itself create a charge on any specific devise or bequest. I think that the rule is a very reason- able one, and is likely to be in general conformable to the intentions of testators. When any specific thing is given, it must b© in general understood that the devisee is meant to take it in its integrity The question must always be on© of intention, but the rule is, that the presumption is against an intention to charge lands speci- fically devised, and that a mere charge ' on all my lands ' is not sufficient to rebut that presumptioji." {Fer Lord Cranworth, Conron v. Conron, 7 H. L. C. 190.) 348 CONEON V. CONEON. Mr. Hawkins continues — " In Conron v. Conron, the words were ' I charge and ' encumber all 'my estates of every description, both real 'and personal, with the following legacies, viz.,' &c., 'and the executors and legatees were empowered to dis- ' train on any part of the testator's estate and property 'of every description fpr the interest on the legacies: — 'but it was held that estates specifically devised wero 'not charged. " If the specific devise failed, so that the lands fell 'into the residue, they would, of course, be charged. Charges of debts and legacies on the real estate, charges on lands specifi- cally devised with the legacies. Exeeption. — " But it has been held that if the testator " charges his real estate with debts cmd legacies, inasmuch "as the debts are a charge on lands specifically devised, "the rule does not apply, and the legacies as well as the "debts are a charge on specific devises. ([-Be Emmer- " ton] Maskell v. Farrington, 1 N. E. 37;" [see Mannox V. Greener, L. E. 14 Eq. 456].) If, however, there is no residuary devise, the specifically devised lands are charged. (Bank of Irelandy. McCarthy, [1898] A. C. 181.) 349 CHAPTER XXI. LEGACIES. Annuities are Legacies. Rule. The term ''legacies" prima facie com- Aimuities are prehends annuities: and "legatee" includes an anannmtant annuitant. {Sibley v. Perry, 7 Ves. 522 ; Bromley V. Wright, 7 Hare, 334 ; Heath v. Weston, 3 D. M. G. 601.) \_Mullins y. Smith, 1 Dr. & Sm. 204.] Thus if legacies and annuities are given sim- charge of pliciter, and real estate is afterwards devised in reai'estate' trust to pay debts and legacies, the annuities are ^l^aea. charged on the real estate. {Heath v. Weston, 3 D. M. G-. 601.) Mr. Hawkins pbserves — " So if the residue is directed to be divided among the " legatees in proportion to the amouiat of their respective "legacies, annuitants are prifntd facie entitled to share in "the residue. {Bromley v. Wright, 7 Hare, 334; SibJey "v. Perry, 7 Ves. 522.) And where the testator directed "all his legatees to contribute one per cent, on their "legacies for the benefit of Mrs. W. and her family, "annuitants (and also the residuary legatee) were held "bound to contribute. {WaM V. Grey,_ 26 B. 485.)" "The word 'legacies' is a proper word to designate Rule stated, legacies given in the shape of annuities as weU as those given in the shape of a bequest of a sum payable at once. That being the proper meaning of the word, it lies upon those who say that it is not to be so construed to 350 chancey's case. show, firom the context of the will, that the testatrix used it in another sense." (Per Knight Bruce, L. J., 3D.M.G. 606.) Mr. Hawkins continues — "And notwithstanding Ncmnock v. Horton (7 Ves. "391), it appears from Heath v. Weston (3 D. M. G. " 601), that the fact that the testator sometimes speaks of " 'legacies and annuities ' is not alone sufficient to show " that the term ' legacies,' when used alone, does not com- "prehend annuities. [See also GasMn v. Rogers, L. R. 2 Eq. 284.J " But annuities not given dmipliciter, but las rent " charges payable solely or primarily out of the real estate, " do not faU under the term 'legacies.' (Shippterdson v. "ToiL-er, 1 Y. & C. C. C. 441.) Chancey's Case. " If a testator, being at the date of the will indebted to " A. in (e.g.) thesum of 1 00 Z., secured by bond, bequeaths "to A. a legacy of lOOZ. or of 5001. absolutely, a 'pre- " sumption' of law arises that the debt was intended to " be satisfied by the legacy: which, however, being only a "'presumption' and not a rule of construction, may be " rebutted by parol evidence (Wallace v. Pomfret, 11 Ves. "547). It may also be negatived by construction upon " the words of the wiU: for it is a rule that — Chancey's Case. RtJLE. A direction bj the testator that his Direction to ^g^ts and leoactes should be paid, is sufficient to pay debts and "^ . . legacies rebuts rebut the presumption that a debt is satisfied by the presump- tionthata a legacy. (Chancey's Case, 1 P. Wms. 408; Ed- fiedbya muuds T. Low, 3 K. & J. 318; Cole v. Willard, legacy. 35 B. 568.) "The testator by the express words of his will, had devised 'that all his debts and legacies should be paid;' and this lOOZ. bond being then a debt, and the 5001. being a legacy, it was as strong as if he had directed that SA.TISFACTION OF DEBT BY LEGACY. 351 both the bond and legacy should be paid." {Chancey's Case, 1 P. Wms. 410; [per King, C.].) Mr. Hawkins continues — "It is immaterial whether the debts and legacies be " directed to be paid out of a particular fund, or the " residue be given after payment of debts and legacies, " or the eseoutors directed to pay them, &c. Direction to pay Debts \alon0. — "A direction to pay Whether the " debts (not debts cmd legacies) is evidently not so strong ^ direction'to" " an indication of intent.ion, and though important in pay debts "conjunction with other circumstances (Kales v. Dccrell, "3 B. 324; Bmve v. Bowe, 2 De G. & Sm. 294), is not "conclusive. {Edmunds v. Low, 3 K. & J. 318.) In " Edmunds v. Low a gift in the will of the residue, after " payment of debts and of the legacies thereinbefore given, " was. held not to rebut the presumption of satisfkiotion " by a legacy afterwards given by a codicil. " On the other hand, in Jejferies v. Michell (20 B. 15), " where the legacy in question was given expressly after "payment of debts, the presumption of satisfaction was "held to be rebutted. And in Cole v. Willard (25 B. "568), Eomily, M. R., was of opinion that a charge lof " debts, standing alone, was of equal force with a charge " of debts and legacies." The question finally came before Kay, J., in i?e Huish (43 Ch. D . 260), who said: " Now, what difference is there between a direction to piay debts and legacies and a direc- tion to p^y debts only? There is none, because the gift of a legacy is in itself a direction that the legacy shall be paid. Therefore all that is material is, that there should be a direction that all debts should be paid. ... I think that the case of Edmunds v. Loiu, which appiears to have drawn a distinction between a direction to pay debts and legacies and a direction to pay debts only, was not sufficiently considered; and I find that the balance of authority is against it" (p. 264). Parol Evidence not Admissible. — Mr. Hawkins con- Parol evi- tinues: " The inference against satisfaction from a direc- ^|^f °vf 352 STOCK LEGACY NOT SPECIFIC. " tion to pay debts and legacies being a rule of construc- " tion and not a mere presumption, parol evidence is of " course not admissible to establish the contrary. (See "Lee V. Pain, 4 Hare, 216.) Legacy of stock not primd facie specific, but a general legacy. Stock Legacy not Specific. " A specific legacy has some advantages, as it does not " abate with pecuniary legacies, and (if to a person in esse, "and of a subject producing income), carries the income "from the testator's death: but the risk of failure from " the particular subject not being found among the testa- " tor's property at his death outweighs these advantages. "The Courts consequently lean against construing lega- " cies to be specific; and it is a rule of construction that — Rule. A legacy of stock, of whatever deno- mination, is not primd facie specific, but is a general legacy : although the testator may have had stock of the description mentioned sufficient to answer the bequest. (^Simmons v. Vallance, 4 Bro. C. C. 345 ; Purse v. Snaplin, 1 Atk. 414 ; Sihley V. Perry ^ 7 Ves. 523.) \_Bothamley v. Sherson, L. R. 20 Eq. at p. 308.] Gift of stock "in" the Three per Cents, not 8pecifi.c. " Thus," observes Mr. Hawkins, " if the testator having "1,000Z. 3 per cents, or Long Annuities, bequeaths that "sum to A., the gift is not adeemed by the sale of the " stock in his lifetime, but operates as a direction to the " executor to purchase the stock for A. out of the general " assets. " The rule is the same whether the gift be of ' 1,000Z. " 3 per cents.' or of ' 1,0001. in the 3 per cents.' {Webster "v. Hale, 8 Ves. 410.) " The rule seems to extend to bequests of any descrip- " tion of stocks, shares, &c. usually capable of being "brought into the market. Thus in. Sleech^ . Thorington " (2 Ves. sen. 560) a bequest in the form, ' I give 400L STOCK LEGACY NOT SPECIFIC. -^S^ " East India Bonds to A. in trust to pay the interest to " B., &c.' was held a general legacy. "And in Robinson v. Addison (2 B. 515), where the Shares. " testator having fifteen and a half canal shares, bequeathed "'five and a half shares in the Leeds and Liverpool " CanaJ ' to A., five to B., and five to C, the bequests were "held not to be specific. It was said (p. 520)," "It was further argued that the shares of this canal were so rarely brought to market, that they could not be considered as transferable or purchaseable for money, and could not be considered as gifts of particular things which the execu- tors could purchase out of the assets. It is, however, clear that the testator, if he had meant to give only the shares which he had, might have designated them as 'his,' — that the mere circumstance of the testator having at the date of his wiU a particular property, of equal amount to the bequests of the like property which he has given without designating it as the same, is not a ground upon which the Court can conclude that the legacies are specific; . . and the shares, though not frequently sold, are, nevertheless, occasionally bought and sold, and may be had for monej^ " [Per Lord Langdale, M. E.J Mr. Hawkins continues — "In Jeffreys v. Jeffreys (3 Atk. 120) a gift of Whether '2,702^ 3s. bank stock, the testator having that parti- aencein 'cular sum and no more, was held specific. But qu. amount ren- ■ ■ ^ ■ 1 dersthelegaoy whether even this exact coincidence m amount be a specific. ' reason for not construing the bequest as a general legacy : ' the possession of the particular sum may be the motive ' for fixing the amount of the bequest, but yet the testator ' may intend to give it in the form of a general legacy." Other vsrriters have shared Mr. Hawkins' doubt whether Jeffreys v. Jeffreys was correctly decided. "It is pre- sumed, therefore, that tlie case of Jeffreys v. Jeffreys cannot be considered of any authority." (Roper or Legacies, 4th ed. p. 262.) H. 23 354 STOCK LEGACY OUT OF STOCK. •my.' Direetion to transfer stock not specific. Reference to particular Stock, dc. — Mr. Hawkins con- tinues: "But words of description or reference to parti- " cular property belonging to the testator exclude the rule. " Thus, the word ' my ' is sufficient to render the legacy "specific: as if the bequest be of 'my stock in the "3 per cents.,' 'my shares,' 'stock belonging to me,' &c. "So if the legacy be of '1,000Z. 3 per cent. Consols, or "in whatever stock the same shall lie found invested.' " {HosUng v. NicJiolls, 1 Y. & C. C. C. 478.) So if the "legacy be of 1,000?. Consols to he sold for the benefit of "the legatee (Ashton v. Ashton, 3 P. W. 384), it is "to be implied that the gift is of particular stock, and " not of stock to be purchased for him. " But a direction to the executor to transfer the sum of " 1,000Z. 3 per cent. Consols to A. within tliree months "from the testator's decease is not a specific legacy. " (Sibley V. Perry, 7 Ves. 522.)" " I have no doubt in private, that directing a transfer of stock he means to give what he has : but there is no case deciding that it is specific, without something marking the specific thing, the very corpus." (Per Lord Eldon, «6. p. 529.) Mr. Hawkins continues — " In Toiimsend v. Martin (7 Hare, 471) a direction, "following bequests of sums of stock generally, that if " the testator should not at his death have sufficient stock " standing in his name to answer the legacies, the execu- " tors should out of the residuary estate purchase sufficient " to make up the deficiency, was held to render the bequests " specific." The intention that a stock legacy is specific may be shown in various ways. (Be Nottage, [1895] 2 Ch. 657; Ee Slater, [1907] 1 Ch. 665; see also Mytton v. Mytton, L. R. 19 Eq. 30; Be Pratt, [1894] 1 Ch. 491.) Gift of Stock Legacy out of Stock. — Mr. Hawkins continues: o'fmyTW* "^ bequest of 'l.OOOZ. Consols out of my 3 per cent, per Cents." is "Consols' (Mullins v. Smith, 1 Dr. & S. 204), or of 8TD6Clfic "'1,000Z. part of my 3 per cent. Consols' (Kirby v. REPEATED LEGACIES. :m "Potter, 4 Ves. 751), is a legacy of so much stoch out "of stock, and therefore specific. "But a bequest of ' 1,000Z. out of my 3 per cent. But a gift of "Consols' is construed as a legacy of 1,000L sterling, oymy Three " and is not specific but demonstrative. (Kirby v. Potter, per Cents." is I' A IT m An ^ 1 TTTi • 1 It ■ demonBtra- 4 Ves. 74o.j Whenever there is a legacy oi a given tive. "sum, there must be positive proof that it does not mean "sterling money, in order to make it specific' (Z&. "p. 751; [per Arden, M. R.J.) Repeated Legacies. " It is not possible to determine beforehand when, a " legacy heing given by codicil to a person taking a prior " legacy by the will or another codicil, the latter gift is a "mere repetition of or substitution for the former, and "when an additional benefit is intended. But in the "bare case of a repetition totidem verbis of a legacy, "the rule is (subject to indications of a contrary inten- "tion) that — Rule. If a legacy of the same amount to the sooUy^. -. , . Satton. same person be repeated m two separate testa- Repetition of mentary instruments, as a will and codicil, prima ieftame^nta^ facie the legatee is entitled to both legacies, instruments: -^ ° ° both legacies [Hooley v. Hatton, see Ridges v. Morrison, 1 Bro. take effect. C. C. 389 ; Hurst v. Beach, 5 Madd. 358.) But if the repetition occurs in one and the Repetition in ■*■ . _ _ the same same testamentary instrument, frima facie the instrument: legatee is entitled to one legacy only. ( Garth v. only. Meyrick, 1 Bro. C. C. 30; Holford v. Wood, i Ves. 76; Manning v. Thesiger, 3 My. & K. 29.) " Thus in Holford v. Wood (4 Ves. 75), amongst a "series of legacies and annuities was the following: — "'To Thomas Newman I give an annuity of SOL for " his life payable quarterly ' : — ^and further on in the will, "'I give to Thomas Newman, the butler, 301. a year 23 (2) 356 SUBSTITUTIONAL LEGACIES. "for his life': and one annuity only was held to be in- " tended. But if one of the two gifts had been by will "and the other by codicil, the legatee would have taken "two annuities of the amount specified. " A legacy of a different amount by a separate instru- "ment is, of course,