CHAP. XLIII. Gift to children of A., payable at twenty-one, should die, &c. and in case all Loughborough advance any such doctrine, for he evidently considered the holding the granddaughter to be entitled to be consequential on his holding the bequest to the whole to be contingent, his object being to "avoid a partial intestacy;" and it by no means follows, that if he had considered the interest as vested, he would have felt himself authorized to imply another gift in derogation of it. His Lordship's reasoning does not appear to have satisfied the Master of the Rolls, who, in a subsequent case (e), expressed his conviction that his own determination was right. In that conviction probably the reader will be disposed to join, on his perusing the case of Skey v. Barnes (g), which is a leading authority on this subject, and was as follows: A testator bequeathed his personal estate to trustees for his daughter for life, and after her decease to and among all and every the child or children of his daughter and the lawful issue of a deceased child, in such proportions as his daughter should appoint, and in default of appointment, then the same to go to and be equally divided between them, share and share alike, and if there should be but one child, then to such only child; the portion or portions of such of them as should be a son or sons, to be paid at his or their respective ages of twentyone, and the portion or portions of such of them as should be a daughter or daughters to be paid at her or their respective ages of twenty-one or days of marriage; but in case there should be no such issue of the body of his daughter, or ALL such issue should die without issue before his or their respective portions should become payable as aforesaid, then £1000 for his sister M. and her family, (e) Booth v. Booth, 4 Ves. 402. (g) 3 Mer. 334. See also Turner v. Frederick, 5 Sim. 466. CHAP. XLIII. and £1500 for his niece A. and her family; and in case there should be no issue of either, for his nephew T., whom he also made his residuary legatee. The will con- Cross bequest not implied. tained a proviso, authorizing the trustees to apply the interest of the children's portions for their maintenance until they became payable. One of the children having survived her mother, and died under twenty-one and unmarried; her share was claimed by the survivors and the representatives of those who had attained their majority and died, principally on the authority of Scott v. Bargeman (h). Sir W. Grant, though he thought that case to be right in its result, held that the bequests vested immediately, and that the contingency had not happened on which they were to be divested; consequently the share of the deceased child belonged to her representative. It is not very easy to reconcile with his Honor's decision his approval of Scott v. Bargeman, of whose authority that decision seems to be wholly subversive. The case of Skey v. Barnes may, it is conceived, be considered to have fixed the rule of law on this important doctrine of testamentary construction. A recent case, which may possibly have been decided in reference to the doctrine discussed in the present chapter, is Currie v. Gould (i), where a testator bequeathed to A. the sum of 500l., and in case of her death, either before or after the testator, to devolve to her child or children; or, in the event of their being also dead at her decease, to B. There were three children, one of whom only survived A.: Lord Langdale, M. R., held, that the surviving child was entitled to the whole fund. It does not appear from the judgment of the M. R. whether he Remark on Currie v. Gould. CHAP. XLIII. considered the gift to the children to be contingent, as being confined to those who should be living at A.'s decease, or that the children took vested interests, with an implied gift over of the shares of any who should die in the lifetime of A., to the survivors or survivor (k). In the latter point of view the case would deserve peculiar attention; but, as the former seems to be the more simple and unexceptionable ground, we cannot confidently claim this case as an authority on the present subject. (k) Or the M. R. might have considered that the gift was joint, and consequently devolved to survivors, to which, however, the doc trine of Woodgate v. Unwin, 4 Sim. 129, discussed ante, 160, would seem to stand opposed. 489 CHAPTER XLIV. RULE THAT WORDS WHICH CREATE AN ESTATE TAIL IN PERSONALTY. I. Rule considered in relation to various Words by which an Estate Tail may be created. 11. Bequests over after such Gifts. III. Effect of Limitations in strict create an estate confer the ab solute interest in personalty. I. IT has been established, by a long series of cases (a), Words which that where personal estate (including of course terms of tail in realty years of whatever duration) is bequeathed in language which, if applied to real estate, would create an estate tail, it vests absolutely in the person who would be the immediate donee in tail, and consequently devolves at his death to his personal representative (whether he leaves issue or not), and not to his heir in tail. This rule is not confined, as has been sometimes affirmed (b), to cases in which the words, if used in refer ence to realty, would create an express estate tail; for it applies also to those in which an estate tail would arise by implication, except in the particular case in which words expressive of a failure of issue receive a different (a) Roll. Rep. 356; Bunb. 38; 2 Ch. Rep. 14; 1 Lev. 290; 2 Vern. 324; 1 P. W. 290; Pre. Ch. 421; 8 Vin. Ab. 451, pl. 25; 2 Eq. Ca. Ab. 325; 3 B. P. C. Toml. Ed. 99, 204, 277; 7 Id. 453; 1 Ves. sen. 133, 154; 2 B. C. C. 33, 127; 11 Ves. Rule applies to estates tail by implication; CHAP. XLIV. Construction in reference to real and personal estate (c). -to cases fall ing within the Thus, where, by a will, which is regulated by the old law, personalty is bequeathed to A., or to A. and his heirs, and, if he shall die without issue, to B. (which would clearly make A. tenant in tail of real estate), he will take the absolute interest (d). The rule under consideration also applies to those cases rule in Shelley's in which, by the operation of the rule in Shelley's case (e), the terms of the bequest would, in reference to real estate, create an estate tail. case. Though the bequest be re Thus in Garth v. Baldwin (g), where a testator devised real and personal estate to A., in trust to pay the rents and profits to S. for life, and after her death to pay the same to E. for life, and afterwards to pay the same to the heirs of his body, and for want of such issue, over; Lord Hardwicke held that E. was tenant in tail of the real estate, and entitled absolutely to the personalty. And of course it is immaterial in such a case whether ferential to the the bequest itself contain the words of limitation, or refer to a devise of realty, creating an estate tail. devise. As in the case of Brouncker v. Bagot (h), where a testator devised his real estate to B. for life, without impeachment of waste, remainder to trustees to preserve contingent remainders, remainder to the heirs of the body of B.; and by a codicil he bequeathed his personal estate unto the same persons, and in the same manner, as he had (c) See ante, 418. (d) Love v. Windham, 2 Ch. Rep. (e) As to which, see ante, 271. terfield v. Butterfield, 1 Ves. sen, 133, 153; Tothill v. Earl of Chatham, 7 B. P. C. Toml. Ed. 453; S. C. at the Rolls, nom. Tothill v. Pitt, stated 1 Madd. 488; Earl of Verulam v. Bathurst, cor. Sir L. Shadwell, V. C., 1843, 7 Jurist, 295. (h) 2 Mer. 271; S. C. 19 Ves. 574; see also Douglas v. Congreve, 1 Beav. 159. |