Chap.. XXXIX. to their children, the contingency attaching to the gift to the parents does not attach to that to the children, and the legatees does children take vested interests, although they may not survive not attach to the contingency upon which the gift to the parents was to take substituted legatees. effect. For instance, if the bequest is to A. for life, then to such of my nephews as may be then living, and the children of such as may be then dead, the children take vested interests upon their parents' death, whether they survive A. or not. This is the case whether the gift to the children is an original (a) or substitutional (b) gift. In re Pell's Trust, 2 D. F. & J. 291; Barker v. Barker, 5 De G. & S. 753; Martin v. Holgate, L. R. 1 H. L. 175; Re Orton's Trust, 3 Eq. 375; Burt v. Hellyar, 14 Eq. 160 (a); Masters v. Scales, 13 B. 60; Re Turner, 34 L. J. Ch. 660; Lanphier v. Buck, 2 Dr. & Sm. 484; Merrick's Trusts, L. R. 1 Eq. 551; Re Flower; Matheson v. Goodwyn, 62 L. T. 677; In re Battersby's Trusts, (1896) 1 Ir. 600 (b). The order in Pearson v. Stephen, as printed in 5 Bl. N. S. 218, is inaccurate. See Lanphier v. Buck; Re Flower, supra. There may be a context showing that the contingency was to apply to the children. Bennett v. Merriman, 6 B. 360; Kirkman's Trust, 3 De G. & J. 558. must survive There is, however, this difference between a substitutional Substituted legatees in and original gift to the children, that in the former case order to take only those children who survive their parent will take, their ancestor. while in the latter all the children will take, whether they survive the parent or not. "The substitution takes place at the death of the nephew or niece. And then I see very good ground for saying there, by reason of its being substitution, you will not substitute dead people for the nephew or niece who has been living up to that time and has then just died." Lanphier v. Buck, 2 Dr. & Sm. 484; 34 L. J. Ch. 657; Harcourt v. Harcourt, 26 L. J. Ch. 536; Re Turner, 34 L. J. Ch. 660; Merrick's Trusts, L. R. 1 Eq. 551; Thompson v. Clive, 23 B. 282; Crause v. Cooper, 1 J. & H. 207; Bennett's Trusts, 3 K. & J. 280; Hurry v. Hurry, 10 Eq. 346; Hobgen v. Neale, 11 Eq. 48; Heasman v. Pearse, 11 Eq. 522; 7 Ch. 275; not following Humfrey v. Humfrey, 2 Dr. & S. 49. Chap. XXXIX. Whether original and substituted legatees can take together. Where all the original legatees survive. Where none of the original legatees survive. Where some original legatees die. In the case of an original gift, if the gift be to children then living and the issue of those then dead leaving issue, the words "leaving issue" are not enough to show that only issue who survive their parent were intended to take. In re Smith's Trusts, 7 Ch. D. 665. Upon a similar principle, under a gift in certain events to a class and the issue of such of them as shall then be dead, members of the class dying without issue before the events happen take a share. In re Wood; Moore v. Bailey, 29 W. R. 171; see Strother v. Dutton, 1 De G. & J. 675. Whether the original and substituted class are mutually exclusive : When the gift is to a class or their issue, the further question arises whether the original and substituted legatees form two mutually exclusive classes, so that no substituted legatees can take if there are any members of the original class to take, or whether the issue of members of the original class dying can take with the surviving members of the original class. It is clear that if all the original class survive the time of distribution, they alone take. Sparks v. Restal, 24 B. 218; Margetson v. Hall, 10 Jur. N. S. 89; 12 W. R. 334. So, if none of the original class survive the time of distribution, the substituted legatees alone take. Willis v. Plaskett, 4 B. 208; Timins v. Stackhouse, 27 B. 434; Bolitho v. Hillyar, 34 B. 150; Attwood v. Alford, L. R. 2 Eq. 479. But if some of the original class die leaving children and others survive the time of distribution : If the gift is to several persons nominatim as tenants in common or their children, those who survive the time of distribution take, together with the children of those who die before it. Price v. Lockley, 6 B. 180. In the same way, in the case of a simple substitutional gift to children or their issue to be divided amongst them in equal shares, the issue of a child dying after the testator and before the time of distribution take with the other children. Finlason v. Tatlock, 9 Eq. 258; Neilson v. Monro, 27 W. R. 936; In re Sibley's Trusts, 5 Ch. D. 494; see Holland v. Wood, 11 Eq. 91. WHEN SUBSTITUTED CLASS IS TO BE ASCERTAINED. How the class of substituted legatees is to be ascertained, when the gift is to A. for life, then to B. or his issue :1. If B. dies in the testator's lifetime, the class is ascertained at the testator's death. Ive v. King, 16 B. 46. 2. If B. survives the testator and dies in the lifetime of But the class is not to be definitely ascertained at those times, but will open to let in issue born afterwards and before the time of distribution. In re Sibley's Trusts, 5 Ch. D. 494; In re Jones's Estate, 47 L. J. Ch. 775, overruling on this point Hobgen v. Neale, supra. See ante, p. 293. In some cases of substitutional gifts, where issue are substituted and a member of the original class dies leaving issue, and then some or all the other members of the original class die without issue before the time of distribution, the question has arisen what share the issue of the one first dying take. See Eyre v. Marsden, 2 Kee. 564; 4 M. & Cr. 231; Le Jeune v. Le Jeune, 2 Kee. 701; Ashling v. Knowles, 3 Dr. 593; Cross v. Maltby, 20 Eq. 378. 593 Chap. XXXIX. When the substituted legatees is to be ascertained. class of Ꭲ.Ꮃ. Q Q CHAPTER XL. Chap. XL. Survivor used as a word of limitation of an estate. Survivors denoting persons to take. A single survivor SURVIVORSHIP AND SURVIVORS. I. SURVIVOR AS A WORD OF LIMITATION. THE word survivor may be either a word of limitation of an estate, denoting the interest certain persons are to take, or it may denote a class of persons. For instance, in a devise to A., B., and C. as tenants in common for life, with benefit of survivorship, the word survivorship refers to the extent of the estate and not to the class of persons, and upon the death of one the remaining tenants in common take the whole estate. Haddelsey v. Adams, 22 B. 266; Taaffe v. Conmee, 10 H. L. 64; see, however, Wiley v. Chanteperdrix, (1894) 1 Ir. 209. The word cannot be a word of limitation where absolute interests are given. Maberley v. Strode, 3 Ves. 450; Foley v. Gallagher, 2 L. R. Ir. 389. II. GIFTS TO SURVIVORS. The word survivors is more usually employed to denote a class of persons who are to take, and in such cases it must have its natural meaning, which is to outlive; that is to say, to be alive at and after the happening of a particular event or the death of a particular person, which event or person the other is to survive. Gee v. Liddell, L. R. 2 Eq. 341; see Re Clark's Estate, 3 D. J. & S. 111, where "survive" was held to mean merely "live after." A divesting clause in favour of survivors operates in favour of a single survivor. Hearn v. Baker, 2 K. & J. 383; Bowyer v. Currall, 2 W. R. 328; Bowyer v. Douglass, W. N. 1876, 279. Chap. XL. takes under a gift to The principal difficulty with reference to survivorship survivors. clauses is to ascertain to what point of time the survivorship refers : several or the survivors time of division. 1. In simple cases where the gift is to several or the sur- Simple gift to vivors, or to several and the survivors or the survivors of them, or to a class described as surviving, such as surviving refers to the children, or to several or a class with benefit of survivorship, or with benefit of survivorship between them, the rule is now well settled that survivorship is to be referred to the time when the property or fund is divisible, and those then living will take the whole. As to the similarity in effect of these different expressions, see Wiley v. Chanteperdrix, (1894) 1 Ir. 209. "Survivorship is to be referred to the period of division. If there is no previous interest given in the legacy, then the period of division is the death of the testator, and the survivors at his death will take the whole legacy. But if a previous life estate be given, then the period of division is the death of the tenant for life, and the survivors at such death will take the whole legacy." Cripps v. Woolcott, 4 Mad. 11. This is the case whether the only gift is in the direction to divide, as in Cripps v. Woolcott, or whether there is already a prior complete gift independent of that direction. Hearn v. Baker, 2 K. & J. 383. In re The same rule applies to realty as to personalty. Gregson, 2 D. J. & S. 428; In re Belfast Town Council; Ex parte Sayers, 13 L. R. Ir. 169. Therefore a direct gift to several, or to the survivors, goes to those who survive the testator. Stringer v. Phillips, 1 Eq. Ca. Ab. 292. If there is an immediate gift to several with benefit of survivorship, payable at twenty-one, survivorship may be referred to that age, so that the share of one dying under twenty-one goes to the survivors. Forrester v. Smith, 2 Ir. Ch. 70. Direct gift to several or survivors. interest. If there is a life interest those who survive the tenant for Gift after life life take the whole. Pope v. Whitcombe, 3 Russ. 124; Blewitt v. Roberts, 10 Sim. 491; Cr. & P. 274; Neathway v. Reed, 3 |