interest, expressly in an event which will determine the prior estate, the words descriptive of such event, occurring in the latter devise, will be construed as referring merely to the period of the determination of the possession or enjoyment under the prior gift, and not as designed to postpone the vesting. Thus, where a testator devises lands to A for life, and after his decease to B. in fee, the respective estates of A. and B. (between whom the entire fee simple is parcelled out) are both vested at the instant of the death of the testator, the only difference between the devisees being, that the estate of the one is in possession, and that of the other in remainder."-Jarman on Wills, 5th ed., pp. 756, 757.

"Whilst estates remain contingent, those in whom they are at a future time to be vested have no interest in the estates or the rents and profits of such estates. Such estates must descend to the heir, if they are not given to any person to hold until the events happen on which they are to become vested. This point is too clear to require any observation; indeed, it was not disputed at the bar. Testators who create contingent estates often forget to make any provision for the preservation of their estates, and for the disposition of the rents and profits in the intermediate period between their deaths and the vesting of their estates. In such cases, the estates descend to the heirs, who, knowing that they are to enjoy them only for a short period, and that they have obtained the possession of them from the inattention of, and not from the bounty of, the testator, or from the mistake of the professional man who drew the will, will make the most that they can of them during the time that they remain theirs, regardless of any injury that the estates may suffer from their conduct. The rights of the different members of families not being ascertained while estates remain contingent, such families continue in an unsettled state, which is often productive of inconvenience, and sometimes of injury to them. If the parents attaining a certain age be a condition precedent to the vesting estates by the death of their parents, before they are of that age, children lose estates which were intended for them, and which their relation to the testator may give them the strongest claim to."-Duffield v. Duffield (1829), 3 Bli. N. S. 260, at pp. 330, 331; 1 Dow & Cl. N. S. 268, at pp. 310, 311, Best, C. J.

"I find it decided by a continuous stream of authority, interrupted a little, possibly, by some decisions of Sir John Leach, that, where there is a limitation by will to one for life, and, after

his decease, then to the next of kin of the testator, those who are to take under the designation 'next of kin' are the persons who answer that description at the death of the testator, and not those who answer the description at the death of the tenant for life. . . . The vesting takes place immediately on the death of the testator, but, during the interval between that event and the period fixed for distribution, the shares so vested are liable to be divested, as regards the quantum of interest, in proportion as new individuals are introduced into the class. . . . The next rule. . . is, that the mere circumstance that the person to whom such previous life interest is bequeathed by the will is also a member of the class who answered to the description of next of kin of the testator at the time of the testator's death, does not prevent the first rule from applying."— Wharton v. Barker (1858), 4 K. & J. 483, at pp. 488, 489, Page Wood, V.-C.

66

If real or personal estate be given to A. for life, and after his decease to the children of B., all the children in existence at the testator's death take vested interests, subject to being partially divested in favour of children subsequently coming into existence during the life of A. Thus the objects among whom such real or personal estate becomes ultimately distributable are the children who may be living at the period of distribution and the representatives of such as may have died before that period, having survived the testator."-In re Roberts, Percival v. Roberts, [1903] 2 Ch. 200, at p. 202; 72 L. J. Ch. 597, at pp. 598, 599, Joyce, J.

"In a case of ambiguity or doubt, that construction is to be favoured which will allow of the child who takes a vested interest making such provision as is usual for his own family; and for this I rely upon what is called the rule in Howgrave v. Cartier (1814), 3 V. & B. 79, at p. 85, as explained in In re Hamlet (1888), 39 Ch. D. 426; 58 L. J. Ch. 242, especially in the judgment of Cotton, L. J."—In re Roberts, Percival v. Roberts, [1903] 2 Ch. 200, at p. 204; 72 L. J. Ch. 597, at p. 599, Joyce, J.

"In Jarman on Wills, 5th ed., p. 762, it is said: 'It is quite clear that a devise to A. if or when he shall attain the age of twenty-one years, standing isolated and detached from the context, would confer a contingent interest only.' So in Hawkins on Wills, 240: A devise to A. when he shall attain a given age, standing alone, and unpreceded by any intermediate interest, would probably be contingent,' and Mr. Theobald (Theobald on Wills, 5th ed., p. 496; 6th ed., p. 550) refers to the opinion of

p.

Mr. Fearne to the same effect."-In re Francis, [1905] 2 Ch. 295, at p. 300; 74 L. J. Ch. 487, at p. 490, Swinfen Eady, J.

"The general rule where the will or other instrument is silent as to the period of vesting is that the gift is vested immediately on the donee coming into existence or on the instrument coming into operation (whichever last happens), if the enjoyment is postponed merely for the convenience of the estate or to allow of an intervening or limited interest, but if the postponement of enjoyment is for reasons personal to the donee, the gift will be contingent. But in determining the period of vesting it is always considered a material circumstance if the legacy be severed from the rest of the estate."-In re Couturier, Couturier v. Shea, [1907] 1 Ch. 470, at p. 472; 76 L. J. Ch. 296, at p. 297, Joyce, J.

Implications.

Necessary or Possible.

Necessary implications arise where there is no room for doubt that it was the intention of the testator.

An implication, if only possible, ought not to be made to disinherit the heir-at-law.

"In a will estates are often given by implication. But I shall take this difference concerning estates that pass by implication, though it be by will. An estate given by implication of a will, if it be to the disinheriting of the heir-at-law, is not good, if such implication be only constructive and possible, but not a necessary implication. I mean by a possible implication, when it may be intended that the testator did purpose, and had an intention to devise his land to A.; but it may also be as reasonably intended, that he had no such purpose or intention to devise it to A. But I call that a devise by necessary implication to A. when A. must have the thing devised, or none else can have it. And therefore if the implication be only possible, and not necessary, the testator's intent ought not to be construed to disinherit the heir, in thwarting the dispose which the law makes of the land, leaving it to descend, where the intention of the testator is not apparently, and not ambiguously to the contrary."-Gardner v. Sheldon (1555), Vaugh. 259, at p. 262, Vaughan, C. J. (cited with approval by

Farwell, J., in In re Willatts, Willatts v. Artley, [1905] 1 Ch. 378, at pp. 381, 382; 74 L. J. Ch. 269, at p. 270).

"There is hardly any case where implication is of necessity; but it is called 'necessary,' because the Court finds it so to answer the intention of the devisor."-Coryton v. Helyar (1745), 2 Cox, 340, at p. 348, Lord Hardwicke (cited by Knight Bruce, L. J., in Windus v. Windus (1856), 6 D. M. & G. 549, at p. 554).

"A necessary implication is that implication arising upon the words the testator has made use of, which clearly satisfies the Court what was his meaning. It is put in opposition to conjecture. Conjecture is, when you suppose what would have been the testator's meaning if he had had the whole case before him; and what, if he had thought of such an event, he would have said upon it. That is a conjecture; but for implication, you must find out his meaning, whether expressed or implied, from his words. If they have an express meaning, and he has made use of inaccurate words, you must construe his words; if they are words of sense, or declarations which are no ways accurate in legal phrase, you must see clearly what is the testator's meaning; and, if the testator's meaning is doubtful, if a Court of justice cannot say they are satisfied his intention was so, the whole will be void for uncertainty. Necessary implication, therefore, is that which leaves no room to doubt. It is not implication upon conjecture: you are not to conjecture what he would have done in an event he never thought of; that will not do, though many cases have been determined with a view to such an event."-Jones v. Morgan (1773), Fearne, C. R. App. No. III. (10th ed. (1844), Vol. 1, 577, at p. 589), Lord Mansfield, C. J.

"Implication may be founded upon two grounds. It may either arise from an elliptical form of expression, which involves and implies something else as contemplated by the person using the expression, or the implication may be founded upon the form of gift, or upon a direction to do something which cannot be carried into effect without, of necessity, involving something else in order to give effect to that direction, or something else which is a consequence necessarily resulting from that direction.”—Parker v. Tootal (1865), 11 H. L. Cas. 143, at p. 161; 34 L. J. Ex. 198, at p. 203, Lord Westbury, L. C.

"I am not fond of raising estates by implication, if it can be avoided. It too often happens, I am afraid, that that is a disguised

way of making a will instead of interpreting it."-Ibid., at pp. 168, 169; L. J., at p. 206, Lord Cranworth.

Effect upon Executory Gift of failure of Prior Gift.

"The principle contended for by the counsel for the legatees is a principle with which we are all familiar-which is as old, at all events, as the case of Jones v. Westcomb (1711), 1 Eq. C. Ab. 245, c. 10, and which is very well summed up by Mr. Jarman in his book on Wills (4th ed., vol. ii. ch. 1; 5th ed., p. 1642), where he says this: Sometimes, however, an executory gift is made to take effect in defeasance 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.' Now, as an illustration of that, one may put such a case as this: a gift to A. for life determinable on some particular events, and then a gift over to B. on her death or some other event, which determines the estate. That has been held to apply on the determination of the life estate from any of the specified events. It being in the case supposed manifestly the intention of the testator that, subject to the provision given to A., the rest was to go to B., and B.'s enjoyment was postponed simply for the benefit of A., there being a defect in the language but not defect in the intention-the intention being seen to be exhaustive and to apply to all possible cases, when A. ceases to have any interest in the property. That is the theory. To me it is intelligible, it commends itself to one's good sense."-In re Tredwell, Jeffray v. Tredwell, [1891] 2 Ch. 640, at pp. 654, 655; 60 L. J. Ch. 657, at p. 662, Lindley, L. J.

B.

Q Q