CHAP. XXX. Children required to survive period of distribution, as provided in regard to their parents. was considered to be warranted by the apparently analogous cases establishing that accruing shares are not, by necessary implication, subject to clauses of accruer which the testator has in terms applied to original shares only; there being, it is thought, no such irresistible inference that the testator has the same intention in regard to original and the accruing shares, as to supply the defect of expression. That the application of this strict rule defeats the probable intention, is obvious, and therefore it is not surprising that in the present instance the Courts should have been disposed (express authority not forbidding) to adopt the more liberal construction, by extending the qualification affecting the shares of the original objects of gift, to their children; in other words, by requiring that the children should survive the period of distribution, as expressed with regard to their parents, in whose place they stand. Thus in the case of Eyre v. Marsden (a), where a testator gave his real and personal estate to trustees, upon trust to sell, and out of the income of his estate to pay certain life annuities to his children; and the testator then directed his trustees to accumulate the income of his realty and personalty for the benefit of his grandchildren, and after the decease of his surviving child, if not sold before, to sell and distribute the proceeds among his grandchildren who should be living at the time of his (the testator's) decease, in equal shares, except the share of F. M., the son of a deceased daughter, half of whose share in his (the testator's) estate and effects, he gave to his brother G. M.; and in case any of his grandchildren should die before his, her, or their share or shares should become payable, leaving lawful issue, then such issue should be entitled to the share which his, her, or their deceased parent would be entitled to if then living; but in case of the death of any of the grandchil(a) 2 Kee. 564. dren without leaving issue before he, she, or they, should become entitled to receive his, her, or their share or respective shares, in manner aforesaid; the testator then gave the share or shares of such grandchild or grandchildren, among his surviving grandchildren, to be paid at the same time and in the same manner as before mentioned, touching the original share or shares of his said grandchildren. One of the questions was, whether the shares of grandchildren dying leaving children, who also died before the period of distribution, vested in those deceased children, or passed over to the surviving grandchildren. Lord Langdale, M. R., considered that the children of dying grandchildren were not entitled to stand in the place of their parents, unless they were living at the period of distribution. His Lordship said, "He (the testator) meant an aggregate and previously undivided fund, to be distributed and divided on the death of his surviving child. Interests were previously vested; but up to that time, the vested interests were subject to be divested: and I think the plain intention of the testator cannot be carried into effect, without applying this principle to every interest which became vested under this part of the will, in the different events which happened; to the interests in the accrued shares. which became vested in the grandchildren, and to the interests in the original or accrued shares, which became vested in the children of grandchildren." CHAP. XXX. extended by implication. But no case appears to have carried this principle so Contingency far as Crowder v. Stone (b), where, in the construction of a gift to survivors, in the event of any of the legatees dying without issue, before the period of distribution, Lord Lyndhurst considered it to be necessary, in order to entitle a deceased legatee to retain her share as against the survivors, not only that she should leave issue living at her (b) 3 Russ. 217. CHAP. ΧΧΧ. decease, but that such issue should survive the period of distribution; a construction, which though probably effecting the testator's intention, seemed, in this case, to strain his language. Rule where number of children is er. roneously referred to. Gift to A.'s three children, IV. It often happens, that a gift to children describes them as consisting of a specified number, which is less than the number found to exist at the date of the will. In such cases, it is highly probable that the testator has mistaken the actual number of the children; and that his real intention is, that all the children, whatever may be their number, shall be included. Such, accordingly, is the established construction, the numerical restriction being wholly disregarded. Indeed, unless this were done, the gift must be void for uncertainty, on account of the impossibility of distinguishing which of the children were intended to be described by the smaller number specified by the testator. Thus, in Tomkins v. Tomkins (c), where a testator, there being four, after bequeathing £20 to his sister, gave to her three children £50 each; and the legatee had four: Lord Hardwicke held, that they were all entitled. held to com prehend all. So, in Scott v. Fenoulhett (d), a bequest to C. of £500 "and the like sum to each of his daughters, if both or either of them should survive Lady C.," was held to belong to three daughters who were living when the will was made. It was contended, in this case, that the bequest was intended for two daughters, who resided very (c) Cit. 2 Ves. sen. 564; S. C. cit. 3 Atk. 257, and stated from the Register's Book, 19 Ves. 126. See the same principle applied to bequests to servants, in Sleech v. Thorington, 2 Ves. sen. 561. (d) 1 Cox, 79; S. C. cit. 2 B. C. C. 86, where it is erroneously stated to be a bequest to two daughters. near the testator, the third living at a great distance from him; but as the point had not previously been raised in the cause, and it appeared that the testator knew the last-mentioned daughter, Lord Thurlow refused an inquiry. Again, in Stebbing v. Walkey (e), where a testator bequeathed certain stock unto "the two daughters of T. in equal shares," during their lives; and, if either of them should die, then to pay the whole to the survivor during her life, and in case both should depart this life, then the whole to fall into the residue. T. had three daughters, all of whom were held to be entitled; the M. R., Sir Lloyd Kenyon, declaring, that he yielded to the authority of the cases, and not to the reason of them. gacy given to three, held that the fourth took one of equal amount. So, in Garvey v. Hibbert (g), Sir W. Grant, on the Pecuniary leauthority of the last case, held four children to be entitled under a bequest "to the three children of D." of £600 each. In this case, a question arose, whether, in the adoption of this construction, the aggregate amount of the three legacies was to be divided among the four, or each of the four was to take a legacy of the same amount as was given to each of the three: the counsel for the legatees contended only for the former; but the M. R., on the authority of Tomkins v. Tomkins (h), adopted the latter construction. eight, there being seven ob jects only. Again, in Berkeley v. Pulling (i), where a testator Division into directed his property to be divided into eight equal shares, and then proceeded to dispose of them among the children of A. and B., giving to some two, and to others one, but enumerating seven only; Lord Gifford, M. R., considering that this was evidently a mistake, held, that the property should be divided into seven shares. In cases the converse of the preceding, i. e. where the number of children mentioned in the will exceeds the (e) 2 B. C. C. 85. (g) 19 Ves. 125. (h) Ante, 108. () 1 Russ. 496. CHAP. XXX. "To the five daughters of E.," there being one daughter and five sons. Gift to testator's seven children, naming only six. actual number, of course there is no hesitation in holding all the children to be entitled; and, in a recent case (k), a trust for the five daughters of the testator's niece, E., was held to apply to a daughter of E. (and who was the only daughter at the date of the will,) and not to sons, of whom there were five at the date of the will; it being considered, it should seem, that the mere correspondence of number was not sufficient to indicate that the word "daughters" was written by mistake for sons. The case of Harrison v. Harrison (1) presents an example of both the preceding rules; the bequest being to "the two sons and the daughter of T. L., £50 each." There were one son and five daughters living at the date of the will, all of whom were held to be entitled. Of course, if the number mentioned by the testator agree with the number existing at the date of the will, there is no ground for extending the gift to after-born children (m). On the same principle as that which governed the preceding cases, it has been decided, that where (n) a testator bequeathed the residue of his personal estate to be divided equally among his seven children, A., B., C., D., E., and F., (naming only six,) and it turned out that he had eight children when he made his will, but from other parts of his will it appeared that the testator considered one of his children as fully provided for; the seven other children were entitled. In West v. Lord Primate of Ireland (o), a testator desired that his executor would at his (the executor's) (k) Lord Selsey v. Lord Lake, 1 Beavan, 151. 55. (7) 1 Russ. & Myl. 72. (n) Humphreys v. Humphreys, 2 Cox, 184. See also Garth v. Meyrick, 1 B. C. C. 30. (o) 2 Cox, 258; S. C. 3 B. C. C. 148. |