scribed event; and the obstacle to this was the more insuperable, from the circumstance, that the express cross-limitations, so far as they went, did not establish a complete reciprocity between the legatees; for the share of the granddaughter, at her death under age, was to go to both the grandsons, but the share of one of the grandsons so dying was to belong exclusively to the other grandson. But, independently of this very material circumstance, there seems to have been no valid ground for divesting the shares in the event which had happened; nor, it is important to observe, does Lord Loughborough advance any such doctrine, for he evidently considered the holding the granddaughter to be entitled to be consequential on his holding the bequest of the whole to be contingent, his object being to "avoid a partial intestacy;" and it by no means follows that, if he had considered the interest as vested, he would have felt himself authorized to imply another gift in derogation of it. His reasoning does not appear to have satisfied the M. R., who in a subsequent case (ƒ) expressed his conviction that his own determination was right.

Gift to children

In that conviction probably the reader will be disposed to join, on perusing the case of Skey v. Barnes (g), which is a leading authority on this subject and was as follows: A testator bequeathed [*1362] his personal estate to trustees for his daughter for life, * and after her decease to and among all and every the child of A., payable or children of his daughter and the lawful issue of a deat twenty-one, and in case all ceased child, in such proportions as his daughter should should die, &c. appoint, and in default of appointment, then the same to go to and be equally divided between them, share and share alike, and if there should be but one child, then to such only child; the portion or portions of such of them as should be a son or sons, to be paid at his or their respective ages of twenty-one, and the portion or portions of such of them as should be a daughter or daughters to be paid at her or their respective ages of twenty-one or days of marriage; but, in case there should be no such issue of the body of his daughter, or ALL such issue should die without issue before his or their respective portions should become payable as aforesaid, then 1,000l. for his sister M. and her family, and 1,500l. for his niece A. and her family; and in case there should be no issue of either, for his nephew T., whom he also made his residuary legatee. The will contained a proviso, auCross bequest thorizing the trustees to apply the interest of the chilnot implied. dren's portions for their maintenance until they became payable. One of the children having survived her mother, and died under twenty-one and unmarried, her share was claimed by the survivors and the representatives of those who had attained their ma

(f) Booth v. Booth, 4 Ves. 402, 4 R. R. 435.

(g) 3 Mer. 334. See also Turner v. Frederick, 5 Sim. 466; Templeman v. Warrington, 13 id. 265; Cohen v. Waley, 15 id. 318; Mair r. Quilter, 2 Y. & C. C. C. 465; Edwards v. Tuck, 23 Beav. 268; Beaver v. Nowell, 25 Beav. 551.

jority and died, principally on the authority of Scott v. Bargeman (h). Sir W. Grant, though he thought that case to be right in its result, held that the bequests vested immediately, and that the contingency had not happened on which they were to be divested; consequently the share of the deceased child belonged to her representative.

Gift to two,

and, if neither should be living at a

given period,

So, in Baxter v. Losh (i), where residue was bequeathed to be equally divided between A. and B., their executors, administrators, and assigns absolutely forever; but in case it should happen that the said A. and B. should neither of them be living at a particular period, then over; A. died in the lifetime of the testatrix, and B. survived the period specified, and it was contended on behalf of B., that there was an implied gift to him of the share of A.; but Sir J. Romilly, M. R., held that there was no such implied gift, and that the event not having happened on which the gift over was to take effect, the moiety of A. had lapsed.

over.

Sir W. Grant distinguished Scott v. Bargeman and Mackell v. Winter on the ground that the primary bequests in those cases

*

Distinction where prior gift is contingent.

were contingent, and that nothing therefore was divested [*1363] by admitting the implication (k). This distinction is supported by subsequent decision in cases where the contingent nature of the primary gifts was unquestionable. Thus in Re Clark's Trusts (1), where a testator gave the residue of his personalty and the money to arise by sale of his real estate in trust in equal shares for A., B., C., and D. for life, and after their respective deaths for their children respectively as they should appoint, and in default of appointment for their respective children, with cross-limitations among the children of each parent inter se in the event of any dying under twenty-one; "but in case the said A., B., C., and D. should all happen to die without leaving any child, or leaving such, if such children should all happen to die under twenty-one," then over. A. died unmarried: each of the others had children or a child who attained twenty-one; and the question was whether a cross-limitation of the share of A., the remainder in which had vested in no one, was to be implied in favor of the other families. Sir W. P. Wood, V.-C., held that it was (m); but that none of the other shares, which had all vested, would be divested, except in the event expressly provided for of all four of the named persons dying without leaving a child.

(h) Ante. p. 1359.

(i) 14 Beav. 612. See Re Hudson, Hudson v. Hudson, post p. 1364. In Currie v. Gould, 4 Beav. 117, the precise ground of the decision does not appear, but the gift seems clearly to have been a joint-tenancy to the children.

(k) 3 Mer. 342, 344.

(1)32 L. J. Ch. 525. The distinction was denied by Lord Manners in Beauman v. Stock, 2 Ba. & B. 406, who there held that cross-limitations were to be implied, although the primary gift was vested; but this was before Skey v. Barnes, and has not been followed.

(m) The limitations implied were for life and in remainder (subject to a power of appoint. ment) following exactly the limitations of the original shares. See also Re Ridge's Trusts.

Again in Re Ridge's Trusts (n) where a testator bequeathed residue in trust for his daughters, A., B., and C., and any other daughters he might afterwards have, equally for life; and if all, any, or either of them should die leaving issue, then to pay an equal part equally amongst the issue of each daughter that should die leaving issue; and if only one daughter should die leaving issue, then to pay the whole equally amongst the issue of such one daughter; but if all such daughters should die without leaving issue, then over. The testator left A., B., and C., his only daughters. A. died leaving issue; then B. died unmarried. It was held that a cross-limitation of the remainder in her share was to be implied in favor of the other two families.

Skey v. Barnes and the subsequent cases may, it is con[*1364] ceived, * be considered to have fixed the rule of law on this important doctrine of testamentary construction.

In the recent case of Re Hudson, Hudson v. Hudson (o), the principle on which cross executory limitations are implied was fully considered. In that case a testator gave his real and personal estate to trustees upon certain trusts for the benefit of his wife, and, subject thereto, upon trusts during the lives of his four children and the survivors to divide the income into five equal parts, and to pay one-fifth to each, if living, or, if dead, to their respective children or issue, the latter taking equally between them in choses the fifth share which their parent if living would have taken; and if any of the children died without leaving children or issue, or such issue should fail during the period aforesaid, the share of such children or issue should belong to the others of the testator's children and their issue in the same way as their original shares, and this clause was to apply to accruing as well as original shares; and upon the death of the last surviving child upon trust to divide the whole property among the testator's grandchildren per stirpes. The five children were living. at the testator's death in 1862; one of them died in 1863, leaving seven children, one of whom died in 1871, leaving one child, only a daughter, who died unmarried during the period. Sir E. Kay, J., after reviewing the cases, said:

"I deduce from these authorities the following rules:

"1. Cross executory limitations in the case of personal estate like cross-remainders of real estate, are only implied to fill up a hiatus in the limitations, which seems from the context to have been unintentional.

not

"2. They cannot be implied

as of course cross-remainders could

to divest an interest given by the will.

"3. The existence of other cross-limitations between different persons does not prevent the implication.

(n) L. R, 7 Ch. 665.

(0) L. R., 20 Ch. D. 406.

"4. But where such express cross-limitations are in favor of the very persons to whom the implied cross-limitations would convey the property, that circumstance is of weight in determining the intention. "Instances in which such a gap occurs are : —

"(a.) Where there is a gift to several named persons for their respective lives as tenants in common, and a gift over after the death of the survivor (p):

* “ (b.) Where in a similar gift there are limitations over [*1365] of the shares of the tenant for life to their respective children

or issue for limited interests, as for life or in tail, and then a gift over on failure of issue of them all:

"(c.) And generally where, there being such a gift over, the preceding limitations do not provide for every event except that contemplated by the gift over, but leave some gap which would occasion an intestacy as to part of the estate.

"In this case there is a cross-limitation upon failure of any stirpes to the other stirpes, but there is no cross-limitation between the individuals of the same stirpes, when the Court is asked to imply one. Therefore the difficulty which arose in Clarke's case and Rabbeth v. Squire does not exist here." And his lordship, after observing that where there is an ambiguity it is proper to look at the consequences of either construction, and pointing out that it was hardly possible to believe that it was intended that any part of the income should go to the legal personal representatives of deceased grandchildren, held that the great-granddaughter took only a life interest, and that the intention was, in the event which had happened of her death leaving no issue, that her share should go equally among her uncles and aunts, and the issue of deceased uncles and aunts per stirpes, and that the necessary cross-limitations to effect this must be implied.

(p) See Draycott v. Wood, 8 L. T., N. S., 304.

[*1366]

*CHAPTER XLIV.

RULE THAT WORDS WHICH CREATE AN ESTATE TAIL IN REAL ESTATE CONFER THE ABSOLUTE INTEREST IN PERSONALTY.

I.

Words which create an

- Where the Words would create an Estate Tail in Realty Expressly or by Implication. It has been established by a long series of cases (a), that where personal estate (including of course terms of years of whatever duration (b)) is bequeathed in language which, if applied to real estate, would create an estate tail, it vests absolutely in the person who would be the immediate donee in tail, and consequently devolves at his death to his personal representative (whether he leaves issue or not), and not to his heir in tail; that being the only mode in which personalty can be dealt with in order to make the interest in it analogous to an estate tail (c).1

estate tail in realty confer the absolute interest in personalty.

This rule is not confined, as has been sometimes affirmed (d), to cases in which the words, if used in reference to realty, would

(a) Roll. Rep. 356; Bunb. 301; 2 Ch. Rep. 14; 1 Lev. 290; 2 Vern. 324; 1 P. W. 290; Pre. Ch. 421; 8 Vin. Ab. 451, pl. 25, 26; 3 B. P. C. Toml. 99. 204, 277; 7 id. 453; 1 Mad. 488; 1 Ves 133, 154; 2 B. C. C. 127; 11 Ves. 257; 2 V. & B. 63; 1 Mer. 20, 271; 19 Ves. 73, 170, 574; 3 Mer. 176; 4 Mad. 360; 8 Sim. 22; 3 Drew. 668; 6 H. L. Ca. 1013.

(6) But not including a personal annuity created by will de novo and given to A. and the heirs of his body: this gives A. a conditional fee, and unless he performs the condition (i. e. has issue) the annuity ceases on his death, Turner v. Turner, Amb. 776, 1 B. C. C. 316. (c) Per Wood., V.-C., L. R., 2 Eq. 280.

(d) Atkinson v. Hutchinson, 3 P. W. 259; Doe v. Lyde, 1 T. R. 596.

1 See Albee v. Carpenter, 12 Cush. 382; Hall v. Priest, 6 Gray, 18; Jackson v. Bull, 10 Johns. 19; Paterson . Ellis, 11 Wend. 259; Moody v. Walker, 3 Ark. 147; Pastell v. Pastell, Bailey, Eq. 390; Bethea v. Smith, 40 Ala. 415; Jones v. Sothoron, 10 Gill & J. 187; Fairchild v. Crane, 13 N. J. 105; Moffat v. Strong, 10 Johns. 12; Mathews v. Daniel, 2 Hayw. 346; Ferrand v. Howard, 3 Ired. Eq. 381; Henry v. Felder, 2 McCord, 323;

Smith's Appeal, 23 Penn. St. 9; Clark v. Clark, 2 Head, 336; White v. White, 21 Vt. 250; Adshead v. Willetts, 9 W. R. 405: Ex parte Wyrich, 5 De G. M. & G. 188; Wilkins v. Taylor, 5 Call, 150; Williamson v. Ledbetter, 2 Munf. 521; Deane v. Hansford, 9 Leigh, 253; Dunn v. Bray, 1 Call, 338; Didlake. Hooper, Gilmer, 194; Cox v. Marks, 5 Ired. 361; McGraw v. Davenport, 6 Porter, 319; Chesin v. Williams, 29 Mo. 288.