CHAP. XLVII. tenants" (k). "I would (said his Lordship) preserve the words, to take as tenants in common.' The words tenants in common are of a flexible meaning, and may be understood, that although they should take by survivorship as joint tenants, yet the enjoyment was to be regulated amongst them as tenants in common. The prevailing intention of the testator seems to have been, that the estate should not go over until the death of the survivor." And Mr. Justice Bayley observed with great truth, “ A tenancy in common, with benefit of survivorship, is a case which may exist without being a joint tenancy, because survivorship is not the only characteristic of a joint tenancy.” Remarks on Words of severance confined to the inheritance. 66 It is evident, that, by "benefit of survivorship," the learned Judge meant a gift to the survivor; and his observation goes to this: that, although survivorship is not an incident to a tenancy in common, yet an express gift to survivors is consistent with it. It is observable, however, that there was no express gift to the survivor; but the Court seems to have implied one(1). The principle, however, is the same. It remains to be observed, that, in devises of estates of inheritance, for the avowed purpose of reconciling words of division or severance with a gift to the survivor, the devisees have been held to be joint tenants for life, and tenants in common of the inheritance in remainder. Thus, in Barker v. Giles (m), where the testator devised his real estate to be sold to pay debts and legacies, and (k) But are not these words susceptible of the same explanation? They were not to enjoy as joint tenants, with a right of accruer, but as tenants in common, with an express or implied limitation to survivors. (1) This case may, therefore, be added to those cited ante, Vol. I, p. 476. (m) 2 P. W. 280 ; 9 Mod. 157; 14 Vin. 487; 2 Eq. Ca. Ab. 536; S. C. affirmed on appeal, 3 B. P. C. Toml. ed. 104. See also Folkes v. Western, 9 Ves. 456. the surplus of the money arising from the sale to be laid CHAP. XLVII. out in lands, to be settled to the use of J. and R., and the survivor of them, their heirs and assigns for ever, equally to be divided between them, share and share alike it was held, that they were joint tenants for life, with several inheritances, so that by the death of J. in the lifetime of the testator, R. took the whole for his life, and the devise of the moiety of the inheritance lapsed. survivor dis But in Blissett v. Cranwell (n), where the testator de- Limitation to vised to his two sons and their heirs, and the longest liver regarded. of them, equally to be divided between them and their heirs, after the death of his wife; it was held, that though it was given to them and the survivor, yet that the last words (namely the words of division) explained what the testator meant by the word "survivor," that the survivor should have an equal division with the heirs of him who should die first. In Stones v. Heartley (0), Lord Hardwicke recognised the authority of this case, and applied the same construction to a devise of the residue of the testator's estate, "to be equally divided among his three younger children, D., F., and M., and the survivor of them, and their heirs for ever." on the two last cases. The objection to the construction adopted in the two Observations last cases is, that it renders the gift to the survivor wholly inoperative. It is probable that the Courts at this day would incline to construe such gift as intended to provide for the event of any of the objects dying in the lifetime of the testator, as in Smith v. Horlock (p); at any rate, in such a case as Stones v. Heartley, where there was no other period to which it could be referred. The other (n) Salk. 226; S. C. 3 Lev. 373. (p) 7 Taunt. 129. (0) 1 Ves. sen. 165. CHAP. XLVII. case, Blissett v. Cranwell, would raise the question (to which so considerable a portion of the present chapter has been devoted) whether it meant survivorship at that time or the period of division. Barker v. Giles (p) is distinguishable, inasmuch as the words of severance were not, as in the other cases, necessarily applied to the estate for life. The authority of this case was recognised in the recent case of Doe d. Littlewood v. Green (q). 659 CHAPTER XLVIII. WORDS REFERRING TO DEATH SIMPLY, WHETHER THEY the death, &c., to what period referred. WHERE a bequest is made to a person, with a gift over "In case of in case of his death, a question arises whether the testator uses the words "in case of," in the sense of at or from, and thereby as restrictive of the prior bequest to a life interest, i. e. as introducing a gift to take effect on the decease of the prior legatee under all circumstances, or with a view to create a bequest in defeazance of or in substitution for the prior one, in the event of the death of the legatee, in some contingency. The difficulty in such cases arises from the testator having applied terms of contingency to an event of all others the most certain and inevitable, and to satisfy which terms it is necessary to connect with death some circumstance, in association with which it is contingent; that circumstance naturally is the time of its happening; and such time, where the bequest is immediate (i. e. in possession), necessarily is the death of the testator, there being no other period to which the words can be referred. Hence it has become an established rule, that where the bequest is simply to A., and in case of his death, or if he die, to B., A. surviving the testator takes absolutely (a). (a) Lowfield v. Stoneham, 2 Stra. 1261; Hinckley v. Simmons, 4 Ves. 160; King v. Taylor, 5 Ves. 806; Where the be quest is imme diate. CHAP. XLVIII. "If any die," held to mean in the lifetime of the testator. Cases of contrary construction. The case of Trotter v. Williams (b) appears to have carried this construction to a great length. J. S. bequeathed to A. £500, to B. £500, and in like manner gave £500 a-piece to five others, and if any died, then her legacy, and also the residue of his personal estate, to go to such of them as should be then living, equally to be divided betwixt them all. The Court held, that these words referred to a dying before the testator, so that the death of any of the legatees after would not carry it to the survivors. The word "then" seemed to present some difficulty in the way of the construction adopted in this case. It followed immediately after the reference to the death of the legatees, and might with great plausibility have been held to refer to that event whenever it should happen; for a testator could hardly intend to make existence at a period anterior to his own death a necessary qualification of a legatee. This case exhibits the extreme point to which the construction in question has been carried. There are, however, a few cases of immediate bequests in which the words under consideration have been construed to refer to death at any time, and not to the contingent event of death in the lifetime of the testator; but in each there seems to have been some circumstance evincing an intention to use the words in that rather than in the ordinary sense. Thus, the circumstance of the testator having bequeathed other property to the same per ster v. Hale, Id. 410; Ommaney v. Ves. & Bea. 222. As to a similar question arising in the word or, as in a gift to A. “ or his children," see post, 666; also 1 Russ. 165. (b) Pre. Ch. 78; S. C. 2 Eq. Ca. Ab. 344, pl. 2. |