EFFECT OF FAILURE OF A PRIOR GIFT ON AN ULTERIOR EXECUTORY OR SUBSTITUTED GIFT OF THE SAME SUBJECT; ALSO THE CONVERSE CASE.

Effect upon

WHERE real or personal estate is given to a person for life, with an ulterior gift to B., as the gift to B. is absolutely vested, executory gift and takes effect in possession whenever the prior gift of failure of ceases or fails (in whatever manner), the question disprior gift. cussed in the present chapter cannot arise thereon. 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. Thus, in the well-known case of Jones v. Westcomb (a), 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 one-third 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 [*1643] effect; and the Court of K. B. (b), * on two several occasions (in opposition to a contrary determination of the C. P. (c)), came to a similar conclusion on the same will.

(a) Pre. Ch. 316, 1 Eq. Ca. Ab. 245, pl. 10.

(b) Andrews v. Fulham, 2 Stra. 1092; Gulliver v. Wickett, 1 Wils. 105; Doe v. Challis, 18 Q. B. 224, affd. in D. P. 7 H. L. Ca. 555 (Evers v. Challis); Watson v. Young, L. R., 28 Ch. D. 436. But the one event cannot be construed as included in the other, where the will elsewhere expressly provides for it, Swayne v. Smith, 1 S. & St. 56.

(c) See Roe v. Fulham, Willes, 303, 311.

Failure of

to let in ulterior gift.

So, in Statham v. Bell (d), where a testator, reciting 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 prior gift held (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).

effect.

Gift over, in case there be but one child, extended by implication to

So, in Meadows v. Parry (f), where a testator 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 of 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 And, upon the same principle, a bequest over in the event of the prior legatee having but one child has been held to extend by implication to the event of her not having any child. Thus, in Murray v. Jones (g), 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 [*1644] 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 (d) Cowp. 40.

(e) Foster v. Cook, 3 B C. C. 347.

event of there

not being any.

(f) 1 V. & B. 124. See also Fonnereau v. Fonnereau, 3 Atk. 315; Earl of Newburgh v. Eyre, 4 Russ. 454, where a question of this nature arose under a special will and was much discussed; Osborn v. Bellman, 2 Gif. 593, where this construction was made on a marriage settlement.

(g) 2 V. & B. 313. See also Aiton v. Brooks, 7 Sim. 204, ante, p. 1505.

Sir William

Grant's reason ing in Murray

v. Jones.

daughter under that age and unmarried, then she bequeathed the property to another family. The testatrix died without having had a child; but Sir W. Grant, M. R., held that the ulterior gift nevertheless arose; his opinion being, that the case put by the testatrix, namely, that of her having but one child, did not contain a condition that she should have one child living at that time. His reasoning well deserves a particular statement. "At first sight," said the M. R., "a proposition relative to having but one child may seem to include in it and to imply the having one. That is true, if the proposition be affirmative; but by no means so, if the proposition be hypothetical or conditional. The proposition that A. has but one child, is as much an assertion that he has one as that he has no more than one; but when the having but one is made the condition on which some particular consequence is to depend, the existence of one is not required for the fulfilment of the condition, unless the consequence be relative to that one supposed child. As, if I say that, in case I have but one child, it shall have a certain portion, it is in the nature of the thing necessary that the child should exist to be entitled to the portion; but if I say that, in case I shall have but one child of my own, I will make a provision for the children of my brother, it is quite clear that my having one child is no part of the condition on which the supposed consequence is to depend. My having one child of my own would be rather an obstacle than an inducement to the making a provision for the children of another person. The case I guard against is the having a plurality of children; and it is only the existence of two or more that can constitute a failure of the condition on which the intended provision of my brother's children was to depend. The plain sense of the proposition is, that unless I have more than one the provision shall be made."

Again, in Mackinnon v. Sewell (h), where the testatrix [*1645] bequeathed * her residue in trust for her daughter Caroline for life, and after her death for her daughter's daughter, if she should survive her mother and attain twenty-one; but in case she

should not survive such mother and attain twenty-one, Gift over extended by then in trust for such other child or children of the implication to testatrix's daughter as should be living at their mother's event not falling within death, to be paid to them after her death as they attained terms of will. twenty-one; and if all such other children of the testatrix's daughter should die before attaining twenty-one, then in trust for M. The granddaughter attained twenty-one, but did not survive her mother. Another child of the testatrix's daughter attained twenty-one, but did not survive her mother: afterwards the daughter died. Sir L. Shadwell, V.-C., on the authority of the preceding cases,

(h) 5 Sim. 78, affd. 2 My. & K. 202. See also Wilson v. Mount, 2 Beav. 397; Tennant ⇓ Heathfield, 25 Beav. 512.

held that the bequest over to M. took effect; his Honor considering that the bequest over, in the event of the children that might survive the mother not attaining the age of twenty-one, was but equivalent to a bequest over in the event of there being no child who should survive the mother and attain twenty-one.

Gift over cn

prior devisee's

refusal to do

a certain act.

devisee not

On the principle of the preceding cases, it could not be doubted that an executory gift made to take effect on the prior devisee's neglect or refusal to accept the devise (i) or perform some other prescribed act, would take effect, notwithstanding the object of the prior gift never happens to come into existence, such a contingency being implied and virtually contained in the event described. For (to proceed to the second class of cases before referred to), it has been decided that where a testator gives real or personal property to A., and in case of his neglect or failure to perform a prescribed act within a definite period after his (the testator's) decease then to B., and it happens that the prior devisee or legatee dies in the testator's lifetime, the gift over to B. takes effect.

Effect of prior coming into existence, on gift over if he refuse to do a

certain act.

Death of prior devisee held to let in ulterior

devisee.

Thus, in Avelyn v. Ward (j), where a testator devised his real estate to his brother A. and his heirs on this express condition, that he should, within three months after the testator's decease, execute and deliver to his trustee a general release of all demands on his estate; but if A. should neglect to give such release, the devise to him to be null and void, and in such case the testator devised to W., his heirs and assigns, forever. A. died in the testator's lifetime. Lord Hardwicke held that the gift over took effect; observing that he knew of no case [*1646] of a remainder or conditional limitation over of a real estate, whether by way of a particular estate, so as to leave a proper remainder, or to defeat an absolute fee before by a conditional limitation, but if the precedent limitation by what means soever is out of the case, the subsequent limitation takes place.

Act.

And this doctrine is applicable to the case of a devise to a charity, which is void by law, with a gift over in the event of the inhabitants not appointing a committee or not being willing to carry Prior devise out the scheme; whether the committee was appointed falling under or not being held to be immaterial. This was decided by the Mortmain Sir W. P. Wood, V.-C., in Warren v. Rudall (k), in opposition to Att.-Gen. v. Hodgson (1) and Philpott v. St. George's Hospital (m). "I cannot," he said, "see any substantial distinction between the case of a devise over, after a devise to a nonentity, if the nonentity should die under twenty-one, or again, of a devise (i) See Scatterwood v. Edge, 1 Salk. 229.

() 1 Ves. 420. See also Doe d. Wells v. Scott, 3 M. & Sel. 300, ante, Vol. I., p. 610, and p. 759, n. (g); Re Betts, 30 L. J., Prob. 167.

(k) 4 K. & J. 603, 9 H. L. Ca. 420 (Hall v. Warren).

(2) 15 Sim. 46.

(m) 21 Beav. 134.

over, after a devise to a deceased person, if the deceased person should fail to do a certain act, and the case before me of a devise to a charity, which cannot take, followed by a devise over in the event of that charity which cannot take omitting to perform a certain act." This decision was affirmed in the House of Lords. Lord Cranworth indeed, though inclined to admit the applicability of the doctrine, relied on the fact that no committee had been appointed, so that the contingency on which the gift over was limited had literally happened. But Lord Campbell and Lord Kingsdown agreed with the more general reasoning of the V.-C. (n).

Remarks on
Avelyn v.
Ward.

Lord Hardwicke's observation, however, is not to be taken in too extensive a sense; for it is clear, according to subsequent cases, that if the event upon which the prior gift is made defeasible and the subsequent gift to take effect, is one which may happen as well in the lifetime of the testator as afterwards (in which respect such case obviously stands distinguished from those just stated), and the events which happen are [*1647] such as would, if * the first devisee had survived the testator,

have vested the property absolutely in him, the lapse of such prior devise by the death of the devisee in the testator's lifetime, though it removes the prior gift out of the way, does not let in the substituted or executory devise which was to take effect on the happening of the alternative or opposite event.

Effect where

prior gift fails by lapse.

Thus, in Calthorpe v. Gough (o), where a legacy of 10,000l. was given to trustees, in trust for Lady Gough for life: and, in case she should die in the lifetime of her husband, as she should appoint; and, in default of appointment, to her children; but if Lady G. should survive her husband, then for her absolutely. Lady Gough survived her husband, but died in the lifetime of the testator. The M. R. held the legacy to be lapsed, and that the children were not entitled.

So, in Doo v. Brabant (p) a legacy was bequeathed in trust for A. until she attained twenty-one, and then to transfer it to A., her executors and administrators; and in case A. should die under the age of twenty-one years leaving any child or children of her body lawfully begotten, then in trust for such child or children; but in case A. should die under twenty-one without leaving any child or children, then over. A. attained twenty-one, and died in the lifetime of the

(n) The V.-C. retained his opinion, see Re Smith's Trusts, L. R., 1 Eq. 83. In Re Stringer's Estate (6 Ch. D. 1, ante, p. 856), the foregoing cases were cited as authorities for the position that, where property is given absolutely, with a gift over if the devisee dies without disposing of it, the gift over, which is clearly void for repugnancy if the devisee survives the testator, is valid if he dies before him. Jessel, M. R., declined to accede to such a doctrine," and rejected the claim of the devisee over. On appeal, James, L. J., expressed great doubt whether the gift over was not valid in the event which had happened, viz. the lapse of the prior gift. Being valid (if at all) only on this ground, it is clearly not within the authorities here discussed.

(0) Cit. 3 B. C. C. C. 395.

(p) 3 B. C. C. 393, 4 T. R. 706, 2 R. R. 503; and see Lomas v. Wright, 2 My. & K. 775.