the age of twenty-one years; and in case any of the said CHAP. XLIX. children should die before his, her, or their share or shares should become payable, leaving no issue, then the share or shares of him or them so dying to go to and amongst the survivors or survivor: Sir L. Shadwell, V.C., held, that a son of A., who attained twenty-one, but died in A.'s lifetime, took a vested interest in the legacy, and that his personal representative was entitled; his Honor being of opinion, that the word "payable" meant attain twenty-one. cases. In this state of the authorities, it seems not to be too Result of the much to say, that the word "payable," occurring in the executory bequests under consideration, is held to apply to the age or marriage of the legatee, and not to the period of the death of the legatee for life, unless the latter is shewn by the context to be intended by the testator. 702 CHAPTER L. EFFECT OF FAILURE OF A PRIOR GIFT ON AN ULTERIOR Effect upon executory gift of failure of prior gift. for WHERE real or personal estate is given to a person life, with an ulterior gift to B., as the gift to B. is absolutely vested, and takes effect in possession whenever the prior gift ceases or fails, (in whatever manner), the question discussed in the present chapter cannot arise thereon. Sometimes, however, an executory gift is made to take effect in defeazance of a prior gift, i. e. to arise on an event which determines the interest of the prior devisee or legatee, and it happens that the prior gift fails ab initio, either by reason of its object (if non-existing at the date of the will) never coming into existence, or by reason of such object (if a person in esse) dying in the testator's lifetime. It then becomes a question whether the executory gift takes effect, the testator not having in terms provided for the event which has happened, although there cannot be a shadow of doubt that, if asked whether, in case of the prior gift failing altogether for want of an object, he meant the ulterior gift to take effect, his answer would have been in the affirmative. The conclusion that such was the actual intention has been deemed to amount to what the law denominates a necessary implication. Thus, in the well-known case of Jones v. Westcomb (a), (a) Pre. Ch. 316; S. C. 1 Eq. Ca. Ab. 245, pl. 10. EFFECT UPON AN EXECUTORY OR SUBSTITUTED GIFT, ETC. where a testator bequeathed a term of years to his wife for life, and after her death to the child she was then (i. e., at the making of the will) enceinte with; and if such child should die before the age of twenty-one, then onethird part to his wife, and the other two-third parts to other persons. The wife was not enceinte; nevertheless Lord Harcourt held, that the bequests over took effect; and the Court of King's Bench (6), on two several occasions (in opposition to a contrary determination of the Common Pleas (c)), came to a similar conclusion on the same will. 703 CHAP. L. gift held to let in ulterior gift. So, in Statham v. Bell (d), where a testator, reciting Failure of prior that his wife was pregnant, devised that if she brought forth a son, then that he should inherit his estate; but if a daughter, then one moiety to his wife, and the other to his two daughters (he had one daughter then living) at twenty-one. If either died before that time, the survivor to have her sister's share; if both died before that time, then both shares to his wife and her heirs. The wife was not enceinte; and the other daughter dying under twenty-one, the wife was held to be entitled to the whole. It would be immaterial in such case whether the wife had or had not an after-born child subsequent in procreation as well as birth, as such child would not be an object of the gift to the child with which the wife was then enceinte (e). So, in the case of Meadows v. Parry (g), where a tes (b) Andrews v. Fulham, 2 Stra. 1892; Gulliver v. Wickett, 1 Wils. 105. (c) See Roe v. Fulham, Willes, 303, 311. (d) Cowp. 40. (e) Foster v. Cook, 3 B. C. C. VOL. II. 347. (g) 1 Ves. & Bea. 124. See also CHAP. L. Gift over, in case there be plication to event of there tator bequeathed the residue of his estate to trustees, upon trust to apply the dividends and interest for the maintenance of all such children as he should happen to leave at his death, and born in due time after, equally, until the age of twenty-one, and then to transfer the funds to them; and in case any of the children should die before twenty-one, such deceased child's share to go to the survivors; and if there should be only one child who should attain that age, upon trust to pay the residue to such child and in case all the children should die before attaining that age, then he bequeathed the residue to his wife. The testator died without leaving, or ever having had, any issue; but Sir W. Grant, M. R., held, that the bequest to the wife took effect. And, upon the same principle, a bequest over, in the but one child, event of the prior legatee having but one child, has been extended by imheld to extend, by implication, to the event of her not not being any. having any child. Thus, in the case of Murray v. Jones (h), where a testatrix, after bequeathing the residue of her personal property to her daughters and younger sons, provided, that in case she should have but one child living at the time of her decease, or in case she should have two or more sons and no daughter or daughters living at the time of her decease, and all of them but one should depart this life under the age of twenty-one years, or in case she should have two or more daughters and no son or sons living at the time of her decease, and all of them but one should depart this life under twenty-one, and without having been married; or in case she should have both sons and daughters, and all but one, being a son, should die under twenty-one, or being a daughter under that age (h) 3 Ves. & Bea. 313. See also Aiton v. Brookes, 7 Sim. 246, ante, p. 616. and unmarried, then she bequeathed the property to an- CHAP. L. Sir William Grant's reason ing in Murray v. Jones. |