481 CHAPTER XLIII. WHETHER CROSS EXECUTORY LIMITATIONS CAN BE tory limitations plied. THE question whether cross executory limitations can Cross execube implied among devisees in fee, arises when real estate not to be imis devised to several persons in fee, with a limitation over in case they all die under a given age, or under any other prescribed circumstances; in which case it is by no means to be taken as a necessary consequence of the doctrine respecting the implication of cross remainders among devisees in tail, discussed in the last chapter, that reciprocal executory limitations will be implied among such devisees in fee. The principal difference between the two cases seems to be this:-In the case of a devise to several persons in tail, assuming the intention to be clear that the estate is not to go over to the remainderman until all the devisees shall have died without issue, the effect of not implying cross remainders among the tenants in tail would be to produce a chasm in the limitations, inasmuch as some of the estates tail might be spent, while the ulterior devise could not take effect until the failure of all (a). On the other hand, in the case of limitations in fee of the realty, and of absolute interests in personalty, (both which are clearly governed (a) Indeed it should seem that would have presented an obstaclethe doctrine against perpetuities to its taking effect at all. CHAP. XLIII. Cross executory trusts implied among legatees. by the same principle), as the primary gift includes the testator's whole estate or interest, and that interest remains in the objects in every event upon which it is not divested, a partial intestacy can never arise for want of a limitation over. To introduce cross limitations among the devisees in such a case would be to divest a clear absolute gift upon reasoning merely conjectural; for the argument, that the testator could not intend the retention of the property by the respective devisees to depend upon the prescribed event not happening to the whole, however plausible, scarcely amounts to more than conjecture. He may have such an intention; and, if not, the answer is, voluit sed non dixit. If, therefore, a gift is made to several persons in feesimple as tenants in common, with a limitation over in case they all die under age, the share of one of the devisees dying during minority will devolve upon his representatives, unless and until the whole die under age. Among the early cases, indeed, examples may be found of a different rule being applied to bequests of personalty, between which and devises in fee there seems, as before suggested, to be an intimate analogy. Thus, in Scott v. Bargeman (a), one bequeathed personalty to his wife, upon condition that she would pay £900 into the hands of S., in trust to lay out the same, and pay the interest to the wife for life, if she should so long continue a widow, and, after her death or marriage, in trust that S. should divide the £900 among his (the testator's) three daughters at their respective ages of twenty-one or marriage, provided that if all his three daughters should die before their legacies should become payable, then the wife should have the whole £900 paid to her. Two of the daughters died under age and (a) 2 P. W. 68. unmarried, and the question was, whether the other was entitled to her sisters' shares. Lord Macclesfield decided in the affirmative, inasmuch as the mother was plainly excluded unless all the daughters died under twenty-one or marriage, and their shares did not vest absolutely in any of the three daughters under age, in regard that they might all die before twenty-one or marriage, in which case the whole was devised to the mother. CHAP. XLIII. upon Scott v. Bargeman. This decision must be supported, if at all, on the Observations ground that the Court was authorized to insert cross limitations among the daughters, by necessary inference from the terms of the gift over,-a conclusion which it will be found very difficult to reconcile with subsequent decisions (b). In the case of Machell v. Winter (c), the next on this subject, personal property was bequeathed to three persons, with an express bequest over to the other or others in case of the death of one particularly named, or of either of two couples of the three individuals named, under age, (but not of the other couple), and a bequest over of the entirety on the death of all three. Two eminent Judges differed in opinion whether a cross executory trust providing for the death of such other couple could be implied. The case was this:-A testatrix directed her household goods, &c., to be sold, and the money arising from the sale, together with the residue of her personal estate, she bequeathed to her grandsons G. and J., and to her granddaughter C., to be equally divided between them, share and share alike; the shares of her grandsons, with the interest or accumulation thereof, after a deduction for their (b) See Schenck v. Legh, 5 Ves. 452; S. C. 9 Id. 300; Bayard v. Smith, 14 Id. 470. And more par ticularly Skey v. Barnes, 3 Mer. (c) 3 Ves. 236, 536. Bequest to A., B., and C., with bequest over if one but not provid ing for the two, or all died, death of the other two. CHAP. XLIII. maintenance and preferment, to be paid to them respectively on their attaining the age of twenty-one years, and the share of her granddaughter, with the interest and accumulation, at twenty-one or marriage. Then, after a direction for maintenance and preferment out of the interest, the testatrix declared, that in case her granddaughter C. should happen to die under the age of twenty-one years and unmarried, the share of the residue of her personal estate so given to her, with the accumulated interest thereon, should go and be equally divided between her two grandsons; and in case of the death of either of them, the whole should be paid to the survivor; and that in case either of her grandsons should die under the age of twenty-one, the share of her grandson so dying should go to the survivor of her two grandsons; and in case her two grandsons should die under the age of twenty-one, and her granddaughter under twenty-one and unmarried, the whole of their respective shares of the residue of her personal estate, with the accumulation thereon as aforesaid, should go and be paid to her nephew B. (It will be observed that the event, which happened, of the death of both the grandsons under twenty-one, and of them only, was not Implication of provided for). Sir R. P. Arden, M. R., considered that there was no doubt that the grandchildren took a vested R. P. Arden, interest; and as it was not taken out of them in the event that had happened, he conceived himself not authorized to supply the defect in favour of the granddaughter; though his decree over. he had no doubt as to the intention. But Lord LoughLoughborough. borough, on appeal, reversed this decree; his Lordship thinking, on the one hand, that the shares did not vest in the grandsons until twenty-one, and, on the other, that there was a necessary implication in favour of the granddaughter, it being clear that what defeated (quare would cross execu tory bequest rejected by Sir but ruled by Lord precede?) the gift over to the nephew, who could only take the entirety of the fund, and that on the death of all the grandchildren, must be a disposition of the whole in favour of the grandchildren, the preferable objects of the testator's bounty, and to avoid a partial intestacy. CHAP. XLIII. Machell v. The views taken of this case by the Master of the Remarks upon Rolls and the Lord Chancellor, it will be seen, were Winter. wholly different: the former considering the gift as vested in the grandchildren, to be divested only in the event expressly provided for; and the latter as a contingent bequest to them, with an express cross executory contingent bequest in a certain event, and an implied cross bequest in another event. There is certainly great difficulty in both branches of Lord Loughborough's hypothesis. According to the doctrine of all the authorities, the bequest clearly conferred a vested interest (d); and, if vested, it was impossible, consistently with sound principles of construction, to divest it, except on the happening of the prescribed event; and the obstacle to this was the more insuperable, from the circumstance, that the express cross limitations, so far as they went, did not establish a complete reciprocity between the legatees; for the share of the granddaughter at her death, under age, was to go to both the grandsons, but the share of one of the grandsons so dying was to belong exclusively to the other grandson. But, independently of this very material circumstance, there seems to have been no valid ground for divesting the shares in the event which had happened; nor, it is important to observe, does Lord (d) See cases passim, chap. xxv, vol. 1, p. 726. Lord Loughborough certainly appears to have been greatly inclined to hold gifts to be con tingent upon very slight grounds, |