only take effect if all the sons die without issue, is sufficient to enlarge the meaning of the word survivor. In such a case there may be enough in the will to show that survivors means others even without a gift over if all die without issue. Williams v. James, 20 W. R. 1010; see Tufnell v. Borrell, 20 Eq. 194. 4. If there are devises to several for their lives with remainder to their issue, and if any die without issue, to the surviving tenants for life for their lives with remainder to their issue, with an ultimate gift over; if all the tenants for life die without issue survivors will be read as others. Cole v. Sewell, 4 D. & War. 1; 2 H. L. 186; In re Tharp's Estate, 1 D. J. & S. 453; In re Row's Estate, 53 L. J. Ch. 347; Askew v. Askew, 57 L. J. Ch. 629; 58 L. T. 472; 36 W. R. 620. Similarly, as regards personalty, if life interests are given with remainder to the issue of each tenant for life, with a gift over on the death of any tenant for life without issue to the surviving tenants for life for their lives, and then to their issue or to the surviving tenants for life in like manner as their original shares were given, and an ultimate gift over on failure of issue of all the tenants for life, survivors will be read as equivalent to others. Low v. Land, 1 Jur. 377; Holland v. Alsop, 29 B. 498; In re Keep's Will, 32 B. 122; In re Tharp's Estate, 1 D. J. & S. 453; Hurry v. Morgan, 3 Eq. 152; Badger v. Gregory, 8 Eq. 78; Waite v. Littlewood, 8 Ch. 70; In re Palmer's Trusts, 19 Eq. 320; Wake v. Varah, 2 Ch. D. 348. It matters not whether the words used are "survivors" or "such as survive." In re Tharp's Estate, 1 D. J. & S. 453. In such a case survivors will be read as others and not as surviving in person or in stock. For instance, if a tenant for life dies leaving children who die, and another tenant for life then dies without children, the deceased children of the first tenant for life will take. Lucena v. Lucena, 7 Ch. D. 255; O'Brien v. O'Brien, (1896) 2 Ir. 459. essential. In these cases the gift over shows that the fund is to go Whether over as a whole, and only if there is a failure of issue of all gift over the tenants for life; yet if survivors were read strictly, if a tenant for life died leaving issue, and the last tenant for life Chap. XL. Not material whether shares settled expressly or by reference. Intention to include children of deceased died without issue, the gift over could not take effect, as there has not been a total failure of issue; at the same time the issue of the tenant for life who died first could not take, so there would be an intestacy. If there is no gift over survivors must be strictly construed, unless there is some other evidence of intention to give it a different meaning. In re Horner's Estate; Pomfret v. Graham, 19 Ch. D. 186; In re Benn; Benn v. Benn, 29 Ch. D. 839. It can make no difference whether the shares given over to the surviving tenants for life are settled by express limitations or are only settled by reference to the limitations of the original shares. Milsom v. Awdry, 5 Ves. 465; Beckwith v. Beckwith, 46 L. J. Ch. 97; 25 W. R. 282; 36 L. T. 128. The cases of Hodge v. Foot, 34 B. 349; In re Arnold's Trusts, 10 Eq. 252; In re Walker's Estate; Church v. Tyacke, 12 Ch. D. 205; see 19 Ch. D. 186, are not consistent with the more recent authorities. Even if there is no gift over there may be enough in the will to show that children of a tenant for life who does not tenant for life. survive the event upon which the gift over takes effect are to share; for instance, if the gift over is to "surviving sisters and their respective children" in the same manner as their original shares, which was read as equivalent to surviving sisters and the children of all the sisters (a); or if there is a direction that children are to take the share their parent would have taken if living (b). In re Bowman; Whytehead v. Boulton, 41 Ch. D. 525 (a); In re Blantern; Lowe v. Cooke, W. N. 1891, 54 (b). Eyre v. There may, of course, be other circumstances to show that survivors is not used in a strict sense. Hawkins v. Hammerton, 16 Sim. 410; In re Beck's Trusts, 16 W. R. 189. In Eyre v. Marsden, 4 M. & Cr. 231, the construction was assisted by the fact that there was a gift to grandchildren living at the testator's death, with a postponement of payment and a direction that in case any of the grandchildren should die before their shares should be payable leaving issue, the issue should take the share the parent would have taken if then living. There was then a gift over, in case any of the grandchildren should die without leaving issue before becoming entitled to receive their shares to surviving grandchildren, to be paid at the same time and in the same manner as the original shares. The issue of a grandchild who did not survive came in under the earlier clause, as they were to take the share their parent would have taken if living. See per Wood, V.-C., in Re Corbett's Trusts, Jo. p. 597. Chap. XL. 5. If there is no settlement of the shares of tenants for life No settlement of shares dying without issue, survivors must be construed strictly. given over. For instance, as regards realty, if there are devises to nieces for life with remainder to their issue in tail, with a gift if any of the nieces die without issue to the surviving nieces, not for life but in tail, surviving cannot be read others, even though there is a gift over, if all the tenants for life die without issue. Lee v. Stone, 1 Ex. 674; Maden v. Taylor, 45 L. J. Ch. 569; King v. Frost, 15 App. C. 548; see Cooper v. Macdonald, 16 Eq. 258. The same applies in the case of similar limitations of personalty to the surviving tenants for life absolutely, whether there is (a) or is not (b) a gift over in default of issue of all the tenants for life. Browne v. Rainsford, I. R. 1 Eq. 384; Twist v. Herbert, 28 L. T. 489 (a); Leeming v. Sherratt, 2 Ha. 14; Re Corbett's Trusts (the residue), Jo. 591 (b). Nor can survivors be read others where the gift over is not to the surviving tenants for life, but to the children of the surviving tenants for life. In re Dunlery's Trusts, 9 L. R. Ir. 349; Re Rubbins; Gill v. Worrall, 79 L. T. 313. Some shares settled, others not. 6. In some cases the question has arisen whether, if the shares of daughters are settled and the shares of sons not, and the daughters' shares in default of children are given to the surviving sons and daughters, the daughters' accruing shares being settled as before, surviving can be read other. It can be so read if there is an ultimate gift over on a total failure of issue (a), but otherwise not (b). Lucena v. Lucena, 7 Ch. D. 255 (a); De Garagnol v. Liardet, 32 B. 608; Re Usticke, 35 B. 338; see Jackson v. Sparks, 38 L. J. Ch. 75 (b). 7. It was at one time supposed that when there were gifts Whether last to several for life, with remainder to their children, and if absolutely. survivor takes Chap. XL. "Others' not read survivors. any died without children to the surviving tenants for life absolutely, the last tenant for life dying without children took his share absolutely as the longest liver, though he did not survive the event. But this construction is now overruled, and the share of the last survivor dying without children goes over and either falls into residue or lapses. Nevill v. Boddam, 28 B. 554; In re Mortimer; Griffiths v. Mortimer, 52 L. T. 383; 54 L. J. Ch. 414; Askew v. Askew, 58 L. T. 472; 57 L. J. Ch. 629; 36 W. R. 620; King v. Frost, 15 App. C. 548; Ranelagh v. Ranelagh, 41 W. R. 549; 3 R. 315; overruling Maden v. Taylor, 45 L. J. Ch. 569; Davidson v. Kimpton, 18 Ch. D. 213; In re Roper; Morrell v. Gissing, 41 Ch. D. 409; In re Hutchins, 19 L. R. Ir. 215. 8. Under a gift in default of children of a daughter to the others or other of his children by name, equally between them if more than one, the word others will not be read as survivors. In re Hagen's Trusts, 46 L. J. Ch. 665; see In re Chaston ; Chaston v. Seago, 18 Ch. D. 218. Nor under a gift to a son by name and the survivors of the testator's daughters is it necessary that the son should survive in order to take. In re Bates, 11 W. R. 768. CHAPTER XLI. THE CONSTRUCTION OF GIFTS OVER. GIFTS OVER UPON DEATH BEFORE VESTING. If there is a gift to A. with a direction that it is to vest at twenty-one, with a gift over if A. dies without attaining a vested interest, the gift over takes effect if A. dies before the testator, though he may have attained twenty-one. He, in fact, dies without attaining a vested interest, and the Court will not construe the gift over as referring only to death under twenty-one. In re Gaitskell's Trusts, 15 Eq. 386. A gift over upon the death of the legatees before attaining a vested interest refers primâ facie to death before vesting in interest. Chap. XLI. Death before vesting includes death before testator after age for vesting. Vesting prima facie refers to vesting in interest. This is the case whether the gift be immediate or in remainder. Parkin v. Hodgkinson, 15 Sim. 293; Re Arnold's Estate, 33 B. 163; Richardson v. Power, 19 C. B. N. S. 780. If, however, the gift over be to persons living at the time of distribution, there is a strong argument that the word vested was used as equivalent to vested in possession. Young v. Robertson, 4 Macq. 314; 8 Jur. N. S. 825; Greenhalgh v. tion. Bates, 2 P. & D. 47. So, if the legacies would be vested in interest at the testator's death, and the gift over is, if any of the legatees die during the testator's life or after his decease, without attaining vested interests, vested must mean vested in possession. King v. Cullen, 2 De G. & S. 252. And, in the same way, the testator may show that he used "vested" in the gift over, as equivalent to "paid," if the gift over is if any die before their share should be vested as When the at the time "Vested "used as equivalent to "paid." |