[*1564] * CHAPTER XLVIII. WORDS REFERRING TO DEATH SIMPLY, WHETHER THEY RELATE TO DEATH IN THE LIFETIME OF THE TESTATOR. "In case of the death," &c., to what period referred. Where a bequest is made to a person, with a gift over 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 defeasance 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 Where the bequest is immediate. 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).1 (a) Lowfield v. Stoneham, 2 Stra. 1261; Northey v. Burbage, Pre. Ch. 471; Hinckley v. Simmons, 4 Ves. 160; King v. Taylor, 5 Ves. 806; Turner v. Moor, 6 Ves. 556; Cambridge v. Rous, 8 Ves. 12; Webster v. Hale, id. 410; Ommaney v. Bevan, 18 Ves. 291; Wright v. Stephens, 4 B. & Ald. 574. But see Billings v. Sandom, 1 B. C. C. 393; Nowlan v. Nelligan, id. 489; Lord Douglas v. Chalmer, 2 Ves. Jr. 503; also Chalmers v Storil. 2 V. & B. 222. As to a similar question arising on the word or, as in a gift to A. "or his children," see post, p. 1571; also 1 Russ. 165. 1 Britton v. Thornton, 112 U. S. 526; Fowler v. Ingersoll, 127 N. Y. 472; In re New York Ry. Co., 105 N. Y. 89; Vauderzee v. Slingerland, 103 N. Y. 47 (citing Moore v. Lyons, 25 Wend. 119; Kelly v. Kelly, 61 N. Y. 47; Whitney v. Whitney, 45 Ń. H. 311); Burdge v. Walling, 45 N. J. Eq. 10; Bishop v. McClelland, 44 N. J. Eq. 450; Baldwin v. Taylor, 37 N. J. Eq. 78; Jones v. Beers, 57 Conn. 295; Briggs v. Shaw, 9 Allen, 516; Crossman v. Field, 119 Mass. 170; Hilliard v. Kearney, Busb. Eq. 221; Burton v. Conigland, 82 N. Car. 99; Davis v. Parker, 69 N. Car. 271; Ewing v. Winters, 34 W. Va. 23. The principle applies alike to realty and to personalty. Burton v. Conigland and Davis v. Parker. See ante, p. 1500, note. held to mean *The case of Trotter v. Williams (b) appears to have car- [*1565] ried this construction to a great length. J. S. bequeathed to A. 5007., to B. 500l., and in like manner gave 5007. apiece to five others, and if any died, then her legacy, and also the residue of her 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. Where a testator gave legacies to three persons in specified shares and directed that, if any of the three should die, his share should go to the others; the testator and one of the legatees were drowned in a collision of two steamships, and there was nothing to show which was the survivor: it was held by Fry, J., that according to the rule in question "die" must mean die in the testator's lifetime, and that the gift over of his share failed (c). "In case of The rule has with less difficulty been held to apply where, after a gift to several, there was a bequest over "in case of the death of either in the lifetime of the others or other;' on the ground that the additional words did not make the the death of event of death more contingent: it being a certainty, unless in the case of shipwreck or other accident, that one must die in the lifetime of the other (d). either before the other." Cases of con struction. 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 trary conhave been some circumstance evincing an intention to use the words in that rather than in the ordinary sense. circumstance of the testator having bequeathed other property to * the same person, to be "at her own disposal," has [*1566] been considered to indicate that the testator had a different intention in the instance in question. Thus, the In Billings v. Sandom (e) the testator, being at Gibraltar, bequeathed (b) Pre. Ch. 78, 2 Eq. Ca. Ab. 344, pl. 2. See also Taylor v. Stainton, 2 Jur. N. S. 634. (c) Elliott v. Smith, 22 Ch. D. 236. (d) Howard v. Howard, 21 Beav. 550. See Underwood v. Wing, 4 D. M. & G. 659, 8 H. L. Ca. 199 (Wing v. Angrave). (e) 1 B. C. C. 393. "In case of her demise," construed at her death. to his sister A. (who was in England), 1,0007., and in case of her demise he gave to B. 800/., and to C. 2007. And he bequeathed unto A., whom he left executrix, whatever goods, chattels, and money should be due to him at the time of his decease, "to be disposed of as she should think proper." Lord Thurlow said the testator intended to give a share of his bounty to his sister, and also to the others. The word "and" implied this; therefore she should take it for life, and then they should take it. As to the residuary devise, he meant that she should take that unfettered, at her own disposal, but the other fettered by the gift over. This case has been referred to by Sir W. Grant (ƒ) as decided upon the contrast afforded by the residuary clause. "In case of death happening," &c. not confined to death in In Nowlan v. Nelligan (g), the bequest was in these words: "I give and devise unto my beloved wife H. N. all my real and personal estate: I make no provision expressly for my dear daughter, knowing that it is my dear wife's happiness, as well as mine, to see her comfortably provided for; but in case of death happening to my said wife, in that case I hereby request my friends S. and H. to take care of and manage to the best advantage for my daughter H. all and whatsoever I Lord Thurlow said it was impossible to tell with precision what was the testator's meaning, but he thought it too much to determine that "in case of death happening" meant dying in the husband's (i. e., the testator's) lifetime; that therefore the meaning must be supposed to be in the event of her death whenever it should happen. lifetime of the die possessed of." testator. may Of this case Sir W. Grant (h), has said, "it was evident that some benefit was intended for the daughter, but it was doubtful, as the extent was not clearly expressed, whether it could be made effectual by imposing a trust upon the will (quære wife?). Some benefit, however, was evidently intended for the daughter, and none could be assured to her except by limiting her mother to an interest for life." Sir W. Grant's These cases show that, in the opinion of Lord Thurlow, very slight circumstances suffice to make the words under consideration [*1567] * refer to death at any period; but no case has perhaps gone so far in adopting this construction as Lord Douglas v. Chalmer (), where a testatrix bequeathed her residuary personal estate for and to the use and behoof of her daughter Frances Lady D., (f) 8 Ves. 22. 1 As to this case see Briggs v. Shaw, 9 Allen, 516; Home v. Pillans, 2 Mylne & K. 20, 28 Schenk v. Agnew, 4 Kay & J. 406. In the last-named case it is said that Douglas (g) 1 B. C. C. 489. (i) 2 Ves. Jr. 501. v. Chalmer is never cited but to be distinguished; a remark quoted with approval in Briggs v. Shaw, supra. "In case of," construed at, death. and in case of her decease to the use and behoof of her (Lady D.'s) children, share and share alike, to whom her said trustees and executors were to account for and pay over and assign the said residue. By a codicil the testatrix gave a ring to her daughter Lady D., and her wearing apparel to A., or if A. should be dead before her, then over. Lord Loughborough treated the notion, that the testatrix intended to provide for the event of Lady D. dying in her lifetime as contrary to the natural import of the words, and the distinction between the expression used, and at or from her decease, as too subtle. He also relied upon the bequest of the ring in the codicil, which he observed was inconsistent with the supposition of her taking the whole interest in the residue; but, if she took it for life only, was very natural. And he observed that, under the circumstances which had happened, there was no other way by which the testatrix's bounty could reach the children but by giving to Lady D. for life, and the capital to the children. Remark on The reliance which was placed on these circumstances shows that Lord Loughborough did not intend to controvert the general rule, which is still more apparent from his subsequent decision in Hinckley v. Simmons (j), where a bequest of Lord Douglas all the testatrix's "fortune" to A., and "in case of her death" to B., was held to confer an absolute interest on A. surviving the testatrix. And this has been followed by several other decisions (k). v. Chalmer. children. "But should she happen to die," held not tive. It might seem, perhaps, that Lord Douglas v. Chalmer goes to establish an exception to the construction in question, No distinction where the first gift is to the parent and the second to in gifts to the children; but this hypothesis is not only unsound in principle, but is contradicted by subsequent authority. Thus, in Webster v. Hale (1), where the testator bequeathed certain stock for the use, exclusive right, and property of his sister C., but should she happen to die to be restric then to her children: and the testator also bequeathed to his sister H. certain stock, and in case of her death to be divided among her children. Sir W. Grant held that C. surviving the testator was entitled to her legacy * absolutely: he remarked [*1568] that the word "but " strengthened this construction, being disjunctive, and implying that the children were to take in an event different from that on which the parent was to take. The other bequest to H., he observed, was in the very terms of Lord Douglas v. Chalmer, and, if that stood alone, he should be bound to the same construction; but he thought it sufficiently clear that C. was to take absolutely, and he could not from the very slight variation collect a different intention as to the other sister. It seems, therefore, that 4 Ves. 160. (7) 8 Ves. 411. (k) See cases cited ante, p. 1564. the M. R. did not think the gift of the ring in Lord Douglas v. Chalmer made any real difference. The absence of any distinction where the respective bequests are to parent and children is still further evident from Slade v. Milner (m), where, under a bequest to A., "and in case of her death" to be equally divided between her children, Sir J. Leach held that A., having survived the "In case of her death" applied to testator's lifetime. testatrix, took an absolute interest. And it is of course equally immaterial that the substituted gift confers a life interest only on the first taker, and the ulterior interest on a third person (n). "In the event of the death of either " similarly construed. Another case exemplifying the construction now under consideration is Clarke v. Lubbock (0), where a testator bequeathed the residue of his property to A. and B., the interest to be paid for their support; but in the event of the death of either, the whole of the interest to be paid to the survivor; and on his or her demise, should they leave no children, then over: Sir J. K. Bruce held that, both A. and B. having survived the testator and left children, each was entitled to one moiety, the words in question being construed to refer to death in the testator's lifetime. testator referred to the death of his widow. Where, however, a testator left all his property to his son charged Secus, where with an annuity to his widow; but should the hand of death fall on my widow and son, then over; Lord Cranworth held that the use of the word "widow" showed that the gift over could not have been intended to take effect on an event which was to happen in the testator's own lifetime (p). II.- Rule where the Gift is future.—But although in the case of an immediate gift it is generally true that a bequest over, in the [*1569] * event of the death of the preceding legatee, refers to that event occurring in the lifetime of the testator, yet this construction is only made ex necessitate rei, from the absence of any other period to which the words can be referred, as a testator is not supposed to contemplate the event of himself surviving the objects of his bounty; and conseevent of lega- quently, where there is another point of time to which such dying may be referred (as obviously is the case where the bequest is to take effect in possession at a period subsequent to the testator's decease), the words in question are considered as extending to the event of Where bequest is future, the words are extended to the tee dying between death of testator and period of vesting. (m) 4 Mad. 144; and Schenk v. Agnew, 4 K. & J. 405. (n) Crigan v. Baines, 7 Sim. 40. (0) 1 Y. & C. C. C. 492. See also Arthur v. Hughes, 4 Beav. 506; Duhamel v. Ardovin, 2 Ves. 163. (p) Randfield v. Randfield, 2 De G. & J. 57. Compare Taylor v. Stainton, 2 Jur. N. S. 634, 635. |