question was, whether the bequest over was good; and Parker, L. C., decided in the affirmative, observing that it must be intended such issue as H. should, or at least might, appoint the term to, which must be intended issue then living; and that this construction should be the more favoured, in regard it supported the will, whereas the other (i. e. that the testator meant whenever there was a failure of issue) destroyed it. In Hockley v. Mawbey, a testator devised freehold and leasehold estates to A. for life, and, after her decease, to his son R., and his issue lawfully begotten or to be begotten, to be divided among them, as he (R.) should think fit, and, in case he should die without issue, over. One question was, whether R. took an estate tail in the realty, and an absolute interest in the personalty, or a life interest only in both. Lord Thurlow was of opinion, that he had only an estate for life. It was evident, he said, that the testator did not intend the property to go to the issue as heirs in tail; for he meant that they should take distributively (i), and according to the proportions to be fixed. by the son, and that it had often been decided, that where the gift was in that way, the parties must take as purchasers. After some further remarks, his Lordship intimated an opinion that the children took an interest independently of the power, which only authorized the son to fix the proportions, and not to choose whether they were to take at all: and that the objects, whosoever they were, must be in existence during the life of the son. It will be observed, that, in the preceding cases, there was no express gift to the issue, except as objects of the power. It is now clear, however, (though doubted in Target v. Gaunt), that an implied gift would be raised in (i) As to this, see ante, 343. CHAP. XLI. To such of the issue of H. as he should by will appoint. To R. and his issue, to be divided as he should think fit. CHAP. XLI. Observations r. Mawbey. them in default of the exercise of the power (k); and, if the power extended only to issue living at the death, the trust was likewise so confined, as were, pari ratione, the words referring to the failure of issue. But the case of Hockley v. Mawbey has sometimes upon Hockley been cited (1) as if the power had embraced issue generally, subject only to the restriction on its exercise, imposed by the rule against perpetuities; but this supposition not only imputes to Lord Thurlow an inaccuracy of statement in regard to the limits of the rule, (which allows a term of twenty-one years, in addition to a life (m),) but is entirely inconsistent with his Lordship's restriction of the implied gift, and the words introducing the limitation over, to issue living at the death, for which there was no pretext, unless the power was confined to such issue; and the effect of the words in question, if not restricted, must inevitably have been to make the devisee tenant in tail, which is the conclusion against which all his Lordship's reasoning is directed. Without entering into a discussion of the doctrine, which restricts the word "issue," in such cases, to objects living at the death, on the reasoning derived from the power, it is sufficient, for the present purpose, to shew, that, where the term is so restricted, the words under consideration (i. e. the words introducing the devise over on failure of issue) receive the same construction. It may be remarked, however, that, if, in Target v. Gaunt, and Hockley v. Mawbey, there had been an express limitation to the issue in default of appointment, it seems that such limitation could not, by implication, have been (k) See Brown v. Higgs, 4 Ves. 708; 5 Id. 495; 8 Id. 561; and other cases cited ante, Vol. I., p. 485. (1) See 1 Sug. Pow., 6th ed., 499. (m) See ante, Vol. I., p. 219. confined to issue living at the death, because the power embraced such objects only (n). CHAP. XLI. early cases no ticed. The reader will have perceived, in this view of the Principle of the cases regarding personal estate, how readily the courts from an early period laid hold of expressions of an ambiguous character, in order to confine words denoting a failure of issue to a dying without issue at the death, and thereby avoid the giving to the first taker the absolute interest, to the exclusion of the legatee over. It is clear, that, in some of these cases, such an effect has been attributed to expressions which would not, at this day, if the question were res integra, be held to warrant a departure from the ordinary legal signification; and they were decided, too, at a time when it was not so well settled as it now is, that the restricted construction did involve a departure from that signification, as to personal estate (o). It is not surprising, therefore, that some cases should have occurred in which the limited construction has prevailed, even where such slight grounds as these have been wanting (p); but, as to which, it scarcely need be observed, that they possess no authority whatever. And even where the restricted construction is apparently well sustained by the early authorities, the practitioner should act upon the doctrine with caution, seeing that, in some recent cases, the Courts have evinced a (n) See Smith v. Death, 5 Madd. 373, ante, Vol. I., p. 486. See also Jesson v. Wright, 2 Bligh, 1, ante, 280. (0) The contrary was maintained in most of the cases on the subject in Peere Williams, and the circumstance upon which reliance is now placed, as taking the case out of the rule, was merely thrown in as an (p) Chamberlain v. Jacob, Amb. CHAP. XLI. disposition not to pay very strict regard to the distinctions (unsubstantial as they certainly are) presented by those authorities. This remark is forcibly suggested by the case of Simmons v. Simmons (q), where the testator gave all his real and personal estate to a trustee, in trust for his daughter for her life for her separate use, adding, "at her decease she shall be at liberty to will the same to her issue as she may think fit; but in case of her dying without issue,” the testator gave the property to his brother and sister, for their lives, and, in the event of his brother's death prior to the death of his daughter, then to the children of his brother. It was contended, on the authority of the cases of Roe v. Jeffery and Target v. Gaunt, that the gift over was to take effect in the event of the daughter dying without leaving issue living at her death, i. e. issue to whom she might "will" the property; but Sir L. Shadwell, V. C., held, that the daughter took an estate tail in the lands of inheritance, and the absolute interest in the personalty. It does not appear whether his Honor, by this decision, meant to deny the authority or the applicability of the cited cases. 1 Vict., c. 26, 8. 29. Words, import ing a failure of issue, refer to failure at death. IV. The rule of construction, which has been the subject of discussion in the present chapter, is abrogated in regard to wills made or republished since the year 1837 by the recent act; the 29th section of which, we have seen (r), provides that words which may import a want or failure of issue of a person in his lifetime or at his death, or an indefinite failure of issue, shall be construed to import a want or failure of issue in the lifetime or at the death; but on this enactment are engrafted an exception and proviso, which seem to have the effect of excluding the operation of the statute, in cases where the words in question are simply referential to the objects of a subsisting estate tail, or a prior gift. The result, then, of the new doctrine appears to be, that the words denoting a failure of issue refer to a failure at the death in every case, unless one of two points can be established. First, that the words are referential to the objects of a prior estate or a preceding gift; or, secondly, that they are so clearly and explicitly used to denote a failure of issue at any time as to exclude the statutory rule of construction, which, it will be observed, only obtains where there is an ambiguity, i. e. where the words may import either a failure of issue at the death, or an indefinite failure of issue. If, therefore, a testator by a will made or republished since 1837, devise real estate to A., or to A. and his heirs, and if A. shall die and his issue shall fail at any time, then to B., A. will take an estate tail, as he formerly would have done without these special amplifying words, which exclude, beyond all question, the application of the enacted doctrine. Cases, however, may be suggested, in which the ground afforded by the context for excluding that doctrine might be less distinct and unequivocal. But such cases will, probably, be of rare occurrence; for, as the legal and the popular signification will now coincide, it cannot be supposed that the context of the will will often furnish grounds for negativing the restrictive interpretation; and, for the same reason, there will be less anxiety on the part of the judicial expounders of wills than formerly to discover grounds for departing from the general rule-an anxiety which contributed not a little to incumber that rule with its numerous distinctions and exceptions. Where, how CHAP. XLI. |