CHAP. XXX. children. VII. We are now to consider the construction of gifts Gifts to younger to younger children, the peculiarity of which consists in this, that as the term younger children generally comprehends the branches not provided for of a family (younger sons being excluded by the law of primogeniture from taking by descent,) the supposition that these are the objects in the testator's contemplation so far prevails, and controls the literal import of the language of the gift, that it has been held to apply to children who do not take the family estate, whether younger or not (1), to synonymous the exclusion of a child taking the estate, whether elder or not (m). Thus the eldest daughter, or the eldest son being unprovided for, has frequently been held to be entitled under the description of a younger child. "Younger' construed as with unpro vided for. Rule confined to parental provisions. As where a parent, having a power to dispose of the inheritance to one or more of his children, subject to a term of years for raising portions for younger children, appoints the estate to a younger son, the elder will be entitled to a portion under the trusts of the term (n); and, by parity of reason, the appointee of the estate, though a younger son, will be excluded. But it should be observed, that where the portions are to be raised for children generally, the child taking the estate is allowed to participate (o). The rule under consideration, however, applies only to gifts by parents or persons standing in loco parentis, and not to dispositions by strangers, in which the words (1) Chadwick v. Doleman, 2 Vern. 525; Beale v. Beale, 1 P. W. 244; Butler v. Duncombe, Ib. 451; Heneage v. Hunlock, 2 Atk. 456; Pierson v. Garnett, 2 B. C. C. 38. (m) Bretton v. Bretton, Freem. Eq. Ca. 158, pl. 204; 3 Ch. Rep. 1; 1 Eq. Ca. Ab. 202, pl. 18, S. C. (n) Duke v. Doidge, 2 Ves. sen. 203. (0) Incledon v. Northcote, 3 Atk. 438. younger children receive their ordinary literal interpretation (p). Nor is there any instance of its having been applied to a devise of lands without some indication in the context (q) of an intention, on the part of the testator, to use the term younger children as contradistinguished from an elder or provided-for son (r). Therefore it is conceived, that, if real estate were devised simply to the younger children of A., the devise would apply to such children as would be entitled under a devise to children generally, with the exception of the child (whether a son or daughter) being the eldest at the time of the vesting. It may be observed, that a bequest to "the youngest child of " A. has been held to apply to an only child (s). Another question, which has been much agitated, in construing gifts to younger children, respects the period at which the objects are to be ascertained. CHAP. XXX. Only child held youngest child. As to period of who are to take as ascertaining 66 younger children." gifts. It is clear that an immediate devise or bequest to Immediate younger children applies to those who answer the description at the death of the testator, there being no other period to which the words can be referred (t). remainder. It might seem, too, not to admit of doubt upon principle, that where a gift is made to a person for life, and Gifts by way of after his decease to the younger children of B., it vests at the death of the testator in those who then sustain this character; subject to be divested pro tanto in favour of future objects coming in esse during the life of A. In the case of Lady Lincoln v. Pelham (u), the bequest (p) See Lord Teynham v. Webb, 2 Ves. sen. 197; Hall v. Hewer, Amb. 203; Lady Lincoln v. Pelham, 10 Ves. 166. (9) See Heneage v. Hunloke, 2 Atk. 456. (r) Hall v. Luekap, 4 Sim. 5, seems to be a case of this kind. 232. (t) Coleman v. Seymour, 1 Ves. sen. 209. (u) 10 Ves. 166. CHAP. XXX. Appointment to younger chil dren held subject to implied condition of their not becoming elder. Rule as to parental provision for younger children. was to A. for life, and, after her death, to her children; and, in case she should have none, or they should all die under twenty-one, then to the younger children of B.; and A. having no child, the younger children of B. at the death of the testator, were held entitled to a vested interest. Lord Eldon, however, seems to have thought that this construction was aided by the terms of another bequest; and his Lordship laid some stress on the circumstance, that the bequest did not proceed from a parent, or a person standing in loco parentis. In regard to parental provisions of this nature, certainly a peculiarity of construction seems to have obtained, the leading authority for which is Chadwick v. Doleman (x), where a father, having a power to appoint portions among his younger children, to be raised within six months after his death, by deed appointed £2600, part of the entire sum, to his son T., describing him as his second son. No power of revocation was reserved. T. afterwards became an elder son, whereupon the father made a new appointment in favour of another son; and the Lord Keeper held, that the second was valid, the first appointment being made upon the tacit or implied condition of the appointee not becoming an elder son before the time of payment. It should seem, then, that a gift by a father or a person assuming the parental office, in favour of younger children, is, without any aid from the context, to be construed as applying to the persons who shall answer the description at the time when the portions become payable. The object of thus keeping open the vesting during the suspense of payment, probably is to prevent (x) 2 Vern. 528. See also Loder v. Loder, 2 Ves. sen. 531; Broadmead v. Wood, 1 B. C. C. 77; Savage v. Carroll, 1 Ball & Beatty, 265. CHAP. XXX. jects must sus ter at period of a child from taking a portion as younger child, who has become, in event, an elder child (y), and also, perhaps, to prevent the inheritance (which is often charged with portions to younger children) from being burthened with the payment of portions which are not eventually wanted. Shutting out of view these particular cases of parental Whether obprovision (the propriety of which it is too late to ques- tain the charaction,) and applying to bequests to younger children the distribution. principles established by the cases respecting gifts to children in general, it would seem, that, in every case of a future gift to younger children, whether vested or contingent, provided its contingent quality did not arise from its being limited in terms to the persons who should be younger children at the time of distribution, or any other period, the gift would take effect in favour of those who sustained the character at the death of the testator, and who subsequently came into existence before the contingency happened, as in the case of gifts to children generally; and, consequently, that a child in whom a share (y) Under this rule, however, a younger child might happen to lose his portion by becoming an elder child, without acquiring the family estate. For instance, suppose lands to be devised to A. for life, with remainder to his first and other sons in tail male, charged with portions to his younger children, payable at the decease of A. A. has three sons, the eldest of whom dies in the lifetime of A., leaving issue male; the second son having, by the decease of his elder brother, become in event the eldest son, would lose his portion as younger son, though the estate had devolved to the issue of his elder brother; probably, how ever, it would be held, that, under CHAP. XXX. Case of Hall v. Hewer. Case of Ellison v. Airey. vested at the death of the testator, would not be excluded by his or her becoming an elder before the period of distribution. With this conclusion, however, it is not easy to reconcile the two following cases. Thus, in Hall v. Hewer (z), A. having devised lands to trustees, to raise £6000, afterwards wrote a letter (which was proved as a codicil) to J., one of his trustees, which contained the following passage:-" I have given you and W. a power to mortgage for payment of £6000, and I beg that that sum may be lent to W., and that you will take such securities from him as he can give, to indemnify you and your children from payment of it; and, in case of your death without children, I desire it may be secured to the younger children of W." Lord Hardwicke held, that the £6000 did not vest until the death of J., and then in such persons as were at that time younger children of W., and, consequently, that a younger child who became an elder during the life of J. was excluded. The grounds of this decision are wholly unexplained, and are not apparent. In Ellison v. Airey (a), £300 was bequeathed to E., to be paid at her age of twenty-one or marriage, and interest in the mean time for her maintenance and education; but if she died before twenty-one or marriage, then to the younger children of testatria's nephew F., equally to be divided to or among them, the eldest son being excluded from any part thereof. Lord Hardwicke was of opinion, that it meant such as should be younger (*) Amb. 203. (a) 1 Ves. sen. 111. This case has been frequently cited in the present chapter as an authority for admitting children born before the time of distribution. As such, it is unquestionable, and has always been regarded as a leading case; but this is quite distinct from the point now under consideration. |