CHAP. XLVIII. Would be construed to mean, in the event of his dying under twenty-one at any time (r).

"Or" used synonymously

And here it may be observed, that those cases in which with in case of. the word "or" has been construed as introductory to a substitutional bequest (in which sense it seems to be tantamount to the words "in case of the death,") present a distinction between immediate and future gifts similar to that which has been just pointed out. Thus, a legacy to A. or to his children, or to A. or his heirs, is construed as letting in the children or next of kin (“heirs” being in reference to personal estate construed as synonymous with next of kin), in the event of A. dying in the lifetime of the testator; while, on the other hand, a bequest to A. for life, and after his decease to B. or his children, is held to create a substitutional gift in favour of the children of B., in the event of B. dying in the lifetime of A (s).

Distinction where prior

It should be noticed, that the construction of the gift is expressly Words "in case of the death," which makes them pro

for life.

vide against the event of the legatee dying in the testator's
lifetime, applies only when the prior gift is absolute and
unrestricted, and not where such legatee takes a life interest
only; for, if a testator bequeaths the interest of a sum of
money to A. expressly for life, "and in case of his death"
to B., the irresistible inference is, that these words are
intended to refer to the event on which the prior life in-
terest will determine, and that the bequest to B. is meant
to be, not a substituted but an ulterior gift, to take effect
on the death of A. whenever that event may happen.
Thus, in the case of Smart v. Clark (t), where a testa-

(r) See Home v. Pillans, 2 My. & Kee. 24.

(s) Vide cases cited Vol. I., pp.

452, 454; also Salisbury v. Petty, cor. Sir J. Wigram, V. C., 7 Jurist, 1011. (t) 3 Russ. 365.

tor

gave to his son E., who was then at sea, the interest CHAP. XLVIII. of £500 stock in the five per cents. during his natural life, if he came to claim the same within five years after the testator's decease; but if he should die, or not come to claim the same within the time limited, then he gave the said stock to the children of his daughter A., with the interest that might be due thereon. E. claimed within the five years, and received the dividends until his death, when the children of A. filed a bill to obtain a transfer; and Sir J. S. Copley, M. R., on the authority of Billings v. Sandom (u), held that they were entitled.

Smart v. Clark.

It is singular that the Master of the Rolls did not ad- Remarks on vert to the circumstance of the prior bequest being expressly for life, which distinguished the case before him from all that had been cited, including Billings v. Sandom; which case stands upon its special circumstances, and is only to be reconciled with subsequent authorities, on the ground that the context warranted the construing the words" and in case of her demise" to mean at her demise.

Where the prior gift, though not expressly for life, comprises the annual income only of the fund, which is the subject of the bequest, the same construction seems to prevail as where the prior gift is expressly for life.

Thus, in the case of Tilson v. Jones (x), where a testatrix directed the interest of certain stock and a canal share to be equally divided between her son and daughter, exclusive of any husband; and in case of the death of either, then the whole of the interest to the survivor; and if her son should not be in England at the time of her decease, then the execution of the trusts, so far as they related to him, should be postponed until his return; but in case of his

(u) But as to which, vide ante, p. 661. (x) 1 Russ. & Myl, 553.

Where prior gift comprises

the income

only.

CHAP. XLVIII. death, then the trustee should pay the whole of such interest to her daughter; and in case of her death, the testatrix gave the whole of such principal and interest between her niece and nephew; and in case of their death before her son and daughter, then she gave the principal and interest at the deaths of the son and daughter to C. M. The daughter survived the son, and claimed to be absolutely entitled; but Sir J. Leach, M. R., said, that the testatrix must be understood as if she had expressed herself thus: "I give the principal and interest to my niece and nephew, if they shall survive my son and daughter; and if they shall not survive them, then to C. M." She could not refer here to the death of her son and daughter in her lifetime; the daughter therefore took for life only. Besides this, the testatrix in her gift to her son and daughter spoke of the interest only, but in the gift over she spoke of the principal and interest.

Words follow

ing an indefi

land.

Consistently with the principle of the two cases just nite devise of stated, it has been held, that the words under consideration succeeding an indefinite devise of land, would (as such a devise, if contained in a will which is subject to the old law, confers only an estate for life,) be held to be synonymous with "after the death," and accordingly the estate to which they are prefixed is a vested remainder, expectant on such life estate (y).

Thus, in the case of Bowen v. Scowcroft (z), where an undivided share in lands was devised to W. and B., and in case of their demise the testator devised their respective shares to be equally divided among their children or their lawful heirs, Mr. Baron Alderson was of opinion, that, as this was the case of a devise of land, the authori

(y) Fortescue v. Abbott, Pollex. 479; S. C. Sir T. Jones, 79.

(*) 2 You. & Coll. 640. This

overrules Lord Kenyon's suggestion
in Goodtitle v. Edwards, 7 Durn. &
E. 635.

1

ties relating to personal estate did not apply, and that CHAP. XLVIII. the words were to be construed "after their decease."

It seems, that where a testator devises an estate tail -Estate tail. to a person, and "if he die," then over to another, the words "without issue" are supplied to render it consistent with that estate (a).

(a) Anon., 1 And. 33, ante, Vol. I., p. 427.

670

CHAPTER XLIX.

WORDS REFERRING TO DEATH COUPLED WITH A CON-
TINGENCY.-TO WHAT PERIOD THEY RELATE.—CLAS-
SIFICATION OF THE CASES.

Distinction between the cases discussed in

THE distinction between the cases, which form the subject of the present inquiry, and those discussed in the last in the present chapter, is obvious. There it was necessary either to do

the last and

chapter.

violence to the testator's language, by reading the words providing against the event of death as applying to the occurrence of death at any time, (in which sense death is not a contingent event,) or else to give effect to the words of contingency, by construing them as intended to provide against death within a given period.

In the cases now to be considered, however, the expositor of the will is placed in no such dilemma; for the testator having himself associated the event of death with a collateral circumstance, full scope may be given to his expressions of contingency without seeking for any restriction in regard to time; and accordingly there seems to be no reason (unless it be found in the context of the will) why the gift over should not take effect in the event of the prior legatee's dying under the circumstances described at any period. Cases of this kind, however, will be found to present many distinctions which require particular atClassification of tention. The cases are divisible into two classes: 1st. Where the question is, whether the substituted gift takes effect in the event of the prior legatee dying under the circumstances described in the testator's life-time. 2ndly. Where the question is, whether the substituted gift takes

the cases.