361 CHAPTER XL. WORDS" IN DEFAULT OF ISSUE," &c., WHEN REFERABLE I. Preliminary Remarks. II. Construction in regard to Personalty. III. In relation to Real Estate. 1. Where the expression is "such Issue." 2. Where the reference is to" Issue" simply. IV. Effect of recent Enactment. remarks. I. THE expression which forms the subject of consi- Preliminary deration in this chapter stands pre-eminent for the number and variety of the questions of construction to which it has given rise. The offices assigned to it are very numerous, and vary of course with the context. Following a devise to heirs general, a clause of this nature, we have seen, frequently explains the word "heirs" to mean heirsspecial, i. e. heirs of the body, and cuts down the estate comprised in the prior devise to an estate tail (a), unless there is ground for restraining the term "issue" to issue living at the death. Preceded by a devise indefinitely or expressly for life to the person whose issue is referred to, the words in question (occurring in a will which is subject to the old law) have the effect of enlarging such prior devise to an estate tail (b), unless they are restrained, as before suggested, or unless there is an intermediate devise to some class or denomination of issue to which they can be referred. To determine in what cases the latter construc(b) Ibid. (a) Ante, Vol. I., p. 488. CHAP. XL. tion prevails, is the present object of inquiry. The distinctions which the authorities present require particular attention, and they will be found upon the whole to be more easily reducible to a few general propositions than is commonly supposed. It will be proper to separate gifts of real and personal estate; for as the construing of the words in question to import a general failure of issue in regard to personalty, necessarily renders void the gift over which is to take effect on such contingency (c), the disinclination of the courts to that construction is evidently stronger than where (as in reference to real estate) they have the effect of creating an estate tail, on which a remainder can be limited. In regard to personal estate. Preceded by a bequest to children. Contingent and confined to children of a certain class. II. In regard to personal estate, it seems to be clear that words denoting a failure of issue, following a bequest to children, refer to the objects of that gift. As in Doe d. Lyde v. Lyde (d), where a term of years was bequeathed to G. for life, and after his decease to M. for life, and after the decease of the survivor to the children of G., share and share alike, and if G. died without issue of his body, then over; it was held that there being no child of G. the ulterior gift took effect. So, in the case of Salkeld v. Vernon (e), where a testator bequeathed £1000 to his daughter R.'s child or children, to the number of four; and if she should have a greater number than four living at his decease, then he bequeathed £4000 to be divided among the said children who should be so living at his decease, to be paid at twentyone; but if his daughter should happen to die "without (c) Ante, Vol. I., p. 223. (d) 1 Durn. & E. 596. See also Vandergught v. Blake, 2 Ves. jun. 534, and Farthing v. Allen, 2 Madd. 310, but as to which see post. (e) 1 Ed. 64. issue," then he bequeathed the said legacy over. And a similar doctrine prevailed in the case of Malcolm v. Taylor (f), though the trust for children was confined to those who attained a prescribed age; but the construction was considered to be aided by an expression in the context. The testator here gave certain lands and all the residue of his money in the funds to his mother and his sister M., for their lives and the life of the survivor, and, after the decease of the survivor, to such of the children of M. as she by deed or will should appoint; and, in default of appointment, to be equally divided among the said children, their heirs and assigns; the funded property to be an interest vested in and paid to them or the survivors or survivor, being sons, at twenty-one; or, being daughters, at twenty-one or marriage. And in case M. should die without issue of her body lawfully begotten, then the testator devised the estate to the children of A. in fee; and in case M. should die without issue as aforesaid, the testator gave the residue of his money in the funds to J., and after his decease to his (testator's) eldest son. M. died unmarried; whereupon a doubt arose as to the validity of the bequest over to J., which of course failed if the words referred to an extinction of issue at any time. It was held by Sir J. Leach, M. R., and afterwards by Lord Brougham, that the words "without issue as aforesaid" meant without such issue of M. as were objects of the preceding gift of the funded property, i. e. the children; his Honor observing, that it was a reasonable (f) 2 Russ. & Myl. 416. CHAP. XL. Words held to be referential "issue." intendment that a subsequent limitation is meant to take effect upon failure of the prior gift, and is a substitution in that event. This was the plain intention of the testator with respect to the real estate; and it was to be supposed, when real and personal estate were given together, that the testator had the same intention with respect to the funded property and the real estate. In Lord Brougham's judgment there is much criticism on the words "as aforesaid," which his Lordship considered to refer, not to the objects of the immediately preceding devise, but to the more remote antecedent, the legatees of the stock, which seems to have been rather a nice question. Where the prior gift is expressly to "issue," though restricted by the context to issue of a particular class, or existing at a prescribed period, it seems more obvious to apply to the objects of such prior gift, the words importing a failure of issue, (the term being identical in both clauses,) than where the prior gift is in favour of children. Thus, in the case of Leeming v. Sherratt (g), where a to prior gift to testator bequeathed to each of his children £1000, to be paid at twenty-one; but as to the girls, one half to be placed out at interest, to be secured from the control of any husband, the interest in the mean time to be paid to them, and the principal to be disposed of, in such manner as they might direct, to their issue; but in case they should die without issue, the testator gave the principal among the survivors of his children: Sir J. Wigram, V. C., was of opinion that the original bequest applied to issue living at the death of the children, and that the gift over, on the failure of "issue," referred to the same objects. In two earlier cases, however, a different construction (g) 18th April, 1842; 6 Jur. 663. seems to have prevailed. Thus, in Andree v. Ward (h), where a sum of £5000 stock was bequeathed to A. for life, and in case he should marry any woman with £1000 fortune, then the testator's will was, that the £5000 should be settled on his wife, and the issue of such marriage; but in case A. died leaving no issue of his body lawfully begotten, then over: Sir T. Plumer, M. R., was of opinion, that "issue" in the ulterior gift could not be confined to issue of such marriage as before mentioned, and that therefore, A. having left issue not of such a marriage, the gift over failed. The strong tendency of the recent cases towards the referential construction, suggests a doubt whether the doctrine of this case would now be followed. CHAP. XL. Words held in trust not to an executory refer to prior objects. struction re So, in the case of Campbell v. Harding (i), where a Referential contestator bequeathed to his adopted daughter, Caroline jected. Harding, £20,000 Three per cent. Consols, and his house and landed property at Culworth; but in case of her death without lawful issue, then the testator willed the money so left to her to be equally divided betwixt his nephews and nieces who might be living at the time (k), and the land &c. at Culworth to his nephew J. H.; and the testator requested his friends C. and S. to be guardians for Caroline Harding, and if she married, it must be with their consent, and "the property to be solely settled upon herself and her children, and in no way charged or alienated." It was contended, that the words "death without lawful issue" in this case, meant death without having had any such issue as would have taken under the settlement subsequently directed by the testator, and not death without issue indefinitely; but it was held by Sir L. Shadwell, V. C., and afterwards by Lord Brougham bell, 8 Bligh, N. S. 469. (h) 1 Russ. 260. (i) 2 Russ. & Myl. 390; S. C. in Dom. Proc. nom. Candy v. Camp () Vide ante, Vol. I., p. 256, n. |