CHAP. XLVII. daughter, and not to the ulterior devisees, there seems to

Effect where gift over is combined with

a collateral event.

Word "survivor" construed other.

be great difficulty in maintaining the soundness of his decision, as it has the effect of reading words occurring in different parts of the same will in various senses. The case too would then be in direct opposition to Doe v. Wainwright (m), where, even in a deed, the limitation of cross-remainders in tail to surviving children was held to take effect in favour of the issue of a deceased child, on the sole ground of its appearing, by the terms of the ultimate limitation, that the estate was not to go over, unless the issue of all the children failed.

In a recent case, however, it was considered that, where the gift to the survivors was to take effect in the event of the decease of any of the prior objects of gift combined with some collateral event, the rule of construction adopted in the preceding cases did not apply, but that the word "survivor" might be construed other, on the ground, it should seem, that, as in such cases the ulterior or substituted gift is not to take effect absolutely and simply on the decease of the prior objects, it is the less likely that the testator should intend survivorship to be an essential ingredient in the qualification of the ulterior or substituted legatees.

The case here referred to is Aiton v. Brooks (n), where a testator bequeathed £1500 stock to A. and B. during their lives, in equal shares, and immediately on the death of either he directed his trustees to pay the share of such deceasing legatee to her children who should be living at their mother's decease, and who should attain the age of twenty-one years, the interest in the mean time to be applied for maintenance; but in case any of such children should die before they should attain the age of twenty-one

Remark on

doctrine ad

vanced in Aiton

v. Brooks.

years, the testator gave the share of such deceasing child CHAP. XLVII. to the survivor; provided always, that in case either of them the said A. or B. should leave any child living at their respective deceases, but which should all die before they attained the age of twenty-one years, then the trustees were to assign the share of such legatee so dying unto the survivor of them the said A. and B., her executors or administrators. A. died in the lifetime of B., leaving a child who attained twenty-one; B. afterwards died without issue. Sir L. Shadwell, V. C., held A. to be entitled to B.'s moiety, observing, "the word 'survivor' must of necessity be taken to mean 'other,' for the testator contemplated the event, not of one of the legatees dying in the lifetime of the other, but of one of them dying childless." There appears to be much good sense in the distinction here suggested by his Honor, and had it originally obtained, a large amount of litigation would probably have been prevented; but the authorities seem now to present an insuperable obstacle to its adoption, for, in almost every instance in which the strict construction of the word "survivor" has prevailed, the gift to the survivors was to take effect in the event of the death of the predeceasing objects without issue, or combined with some other contingency. In Ferguson v. Dunbar, Milsom v. Awdry, Davidson v. Dallas, and lastly in Crowder v. Stone (which is a recent and leading case), the gift over was to take effect on any of the objects dying, either without issue or under age, and yet it was held to apply only to the persons actually living at the period in question. Seeing, therefore, that the case of Aiton v. Brooks was professedly grounded on a circumstance which is common to nearly all the authorities, and that some of those authorities were not cited to or present to the mind of the learned and able Judge who decided it, the case can hardly be

CHAP. XLVII. relied on as a general authority. In fact a different rule prevailed in the subsequent case of Leeming v. Sherratt (0),

vors' construed strictly.

which may be added to the authorities for giving to the Word "survi- Word "survivor" a strict construction. A testator bequeathed £1000 to each of his six children, to be paid at twenty-one, except as to girls, one half of whose shares was to be invested and the interest to be paid to them for life, and the principal to be disposed of in such manner as they should direct, among their issue; and in case they should die without issue, he gave the principal among the survivors of his children in equal proportions. The testator then gave his freehold property and the residue of his personalty to trustees, the proceeds to be divided among his children when the youngest should attain twenty-one; one half of the daughters' shares to be invested, the interest to be paid to such daughters, and the principal to be disposed of in such manner as they should direct, among their children; but if there were no children, then such share to be divided equally among the survivors of the testator's children: and in case of the death of any of his children, leaving lawful issue, the testator gave to such issue the share the parent so dying would have been entitled to have. One question was, whether the words "survivors of my children" was to be construed others. Sir J. Wigram's Sir James Wigram held, that the strict construction must prevail. He said, "In Davidson v. Dallas (p), Lord Eldon's language obviously imports that the word survivors' is to be construed in its natural sense, unless the will itself shews that it was used by the testator in a different sense; and Crowder v. Stone (q) is to the same effect. In Barlow v. Salter (r), the dictum of the Court tends rather to treat

judgment in

Leeming v.
Sherratt.

the word as having a technical meaning, (that of others,') CHAP. XLVII. impressed upon it in practice. According to Davidson v.

Dallas, one reason for construing survivors' to mean 'others' has been to take in all persons who should be born before the period of distribution. In other cases the object suggested has been to prevent a family losing the provision intended for it by the death of a parent, leaving children. The reason of the former of these cases could not occur here, in the case of the residue, because the testator's own children are the legatees of that residue. And, according to the construction that I feel myself at liberty to put upon that clause in the will which, in certain cases, substitutes the issue for the parents, I think the testator has guarded against the second inconvenience; and, so far at least as the residue is concerned, I think that, in the residuary clause, the word 'survivor' must be construed in its natural sense, and that this construction of the word, in one part of the will, must, in this will, determine its construction in the other part also."

The result then would seem to be that the word "survivor," when unexplained by the context, must be interpreted according to its literal import; but the conviction that this construction most commonly defeats the actual intention of testators will no doubt induce a readiness in the Courts to listen to any arguments drawn from the context for reading the word "survivor" as synonymous with other. And the writer cannot dismiss the subject without the cautionary remark, that the present state of the authorities, by cutting off the hope of any considerable aid from liberality of construction in correcting this oftenoccurring slip, should teach to framers of wills the necessity of increased attention to its avoidance.

General con

clusion from

the cases, and practical suggestion.

CHAP. XLVII. Whether

clauses of ac

accruing shares.

II. It has long been an established rule, that clauses disposing of the shares of devisees and legatees dying cruer extend to before a given period, do not, without a positive and distinct indication of intention, extend to shares accruing under the clauses in question. "As where a man gives a sum of money to be divided amongst four persons as tenants in common, and declares, that if one [qu. any] of them die before twenty-one or marriage, it shall survive to the others. If one dies, and three are living, the share of that one so dying will survive to the other three; but if a second dies, nothing will survive to the remainder but the second's original share, for the accruing share is as a new legacy, and there is no further survivorship (s).”

Thus, in Ex parte West (t), where a testator bequeathed to A., B., and C., the three sons of S., £1000 each, the interest to be added to the principal yearly, until they should respectively attain the age of twenty-one years; and in case any of them should die before that age, then to the survivors. A., and then B., died under twenty-one; and the question (which was raised upon petition) was, whether that part of the share of B., which accrued to him on the death of A., went over to C. on the death of B. Lord Thurlow thought it did not survive again; but his Lordship hesitating to decide it upon petition, a bill was filed, and the cause came to a hearing before Sir Lloyd Kenyon, M. R., who decided against the survivorship of such accrued share.

This doctrine, though it has been much disapproved of, is now well established; but the question sometimes arises

(8) Per Lord Hardwicke in Pain v. Benson, 3 Atk. 80. See also Perkins v. Micklethwaite, 2 Ch. Rep. 171; S. C. 1 P. W. 274; Rudge v. Barker, Cas. temp. Talb. 124; Barnes

v. Ballard, before Lord King, cit. 2 Atk. 78.

(t) 1 B. C. C. 375. See also Crowder v. Stone, 3 Russ. 217.