Chap. XLI.

Devise to A.

in tail, and if he dies under

21 or without issue over.

Gift over in case of death of the devisee

or failure of

his issue.

"Or" read "and" in

the gift over

is vested in

5. If the devise is to A. in tail and if he dies under twentyone or without issue over, "or" will not be construed "and; though, on the other hand, it seems that if the devisee died under twenty-one leaving issue, the gift over would not be held to have taken effect, so that the devise would, in fact, be construed as equivalent to "if A. dies under twenty-one without issue or without issue at any time." Mortimer v. Hartley, 6 Ex. 47; Soulle v. Gerard, Cro. Eliz. 525; Woodward v. Glasbrook, 2 Vern. 388; and Lord St. Leonards' judgment in Grey v. Pearson, 6 H. L. 61. The devise over in this case takes effect as a remainder after an estate tail.

6. If the devise over after an estate tail to A. is in case of the death of A., or want of his issue, "or" must be read "and" in order to preserve the prior estate. Monkhouse v. Monkhouse, 3 Sim. 119.

7. "Or" will be read "and" when a gift is given upon either of two events, as upon attaining twenty-one or marriage, when the gift and there is gift over upon death under twenty-one or unmarried, the gift over being otherwise inconsistent with the prior gift. Grant v. Dyer, 2 Dow, 87; Malcolm v. O'Callaghan, Coop. t. Brougham, 73; Thompson v. Teulon, 22 L. J. Ch. 243; Thackeray v. Hampson, 2 S. & St. 214; Grimshawe v. Pickup, 9 Sim. 591; Collett v. Collett, 35 B. 312.

one or other of the two events.

Gift over upon death before the

tenant for life, or

under 21.

"Children" read "issue"

in a gift over upon death without children.

8. In some cases where there has been a gift contingent upon attaining twenty-one, subject to a life interest, and a gift over upon death before the tenant for life or under twenty-one, "or" has been read "and." Miles v. Dyer, 5 Sim. 435; 8 Sim. 330; Bentley v. Meech, 25 B. 197.

And if a gift over upon death under age or without leaving a husband is afterwards referred to as "in case of death under age as aforesaid," or" will be read "and.” Mundy, 6 Ves. 341.

Weddell v.

GIFT OVER UPON DEATH WITHOUT CHILDREN.

In many cases where an estate in fee is given, followed by a gift over in the event of the devisee dying without children, the word children has been construed as synonymous with issue. Doe d. Smith v. Webber, 1 B. & Ald. 713; Doe d.

Simpson v. Simpson, 5 Sc. 770; 4 Bing. N. C. 333; Doe d. Blesard v. Simpson, 3 M. & Gr. 929; Bacon v. Cosby, 4 De G. & S. 261; Parker v. Birks, 1 K. & J. 156; Richards v. Davies, 13 C. B. N. S. 69, 861; see Mathews v. Gardiner, 17 B. 254.

And the same construction would perhaps be put upon a similar gift over after an absolute bequest of personalty. In re Synge's Trust, 3 Ir. Ch. 379; see Stone v. Maule, 2 Sim. 490.

GIFTS OVER UPON DEATH WITHOUT LEAVING OR HAVING

ISSUE.

Chap. XLI.

construed as having had.

equivalent to

A. for life

then children

gift over on death of A.

without leav.

ing children.

The word leaving in a gift over upon death without leaving Leaving issue prima facie means leaving issue living at the death, but the word leaving will in some cases be construed as equivalent to having had so as not to destroy prior vested interests. 1. If there is a gift to A. for life with a gift after his death to his children to be paid or vested at twenty-one, or to the children without more, so that they take vested interests at birth, a gift over if A. dies without leaving children, will be construed as equivalent to without having had children or without having had children who attain vested interests, as the case may require. Marshall v. Hill, 2 Mau. & S. 608; Maitland v. Chalie, 6 Mad. 243; Casamajor v. Strode, 8 Jur. 14; In re Thompson's Trusts, 5 De G. & S. 667; Kennedy v. Sidgwick, 3 K. & J. 540; White v. Hill, 4 Eq. 265; Treharne v. Layton, L. R. 10 Q. B. 459; see Fx parte Hooper, 1 Dr. 264; Re Bogle; Bogle v. Yorstoun, 78 L. T. 457.

The same construction was adopted where the gift was to children who attain twenty-one, and the gift over was if the tenant for life should die without leaving "issue," but it must have been on the ground that issue meant such issue, i.e. children who attain twenty-one. In re Brown's Trust, 16 Eq. 239.

Death without leaving

2. This construction cannot be adopted where the gift over is on the death of the tenant for life without leaving any children children at his death, or without leaving any children him surviving. surviving. Young v. Turner, 1 B. & S. 550; In re Hamlet; Stephen v. Cunningham, 38 Ch. D. 183; 39 Ch. D. 426.

And it does not apply where the subject-matter of the gift is

Chap. XLI.

Not applied

to vest contingent interests.

Gift over after absolute interest.

Without

having any child.

Without any children.

an annuity, and the testator contemplates personal enjoyment by the legatees in remainder. In re Hemingway; James v. Dawson, 45 Ch. D. 453.

3. The Court, however, will not depart from the ordinary meaning of the word leaving, in order to vest interests which were not vested before.

When the gift is, for instance, if the tenant for life leaves children, to all such children, with a gift over in the event of his death without leaving children, the word leaving must have its ordinary meaning. In these cases the condition of surviving the tenant for life is part of the original gift, and there is no question of divesting a prior gift. Sheffield v.. Kennett, 27 B. 207; 4 De G. & J. 593; Bythesea v. Bythesea, 17 Jur. 645; 23 L. J. Ch. 1004; Young v. Turner, 1 B. & S. 550; see In re Watson's Trust, 10 Eq. 36, and the comments therein upon Bryden v. Willett, 7 Eq. 472; Jeyes v. Sarage, 10 Ch. 555; and see Hedges v. Harpur, 3 De G. & J. 129.

4. And where there is a gift to A. absolutely and a gift overon his death without leaving children, the word "leaving" will be construed strictly. In re Ball; Slattery v. Ball, 36 Ch. D. 508; 40 Ch. D. 11, overruling White v. Hight, 12 Ch. D. 751; Armstrong v. Armstrong, 21 L. R. Ir. 115; see Clay v. Coles, 57 L. T. 682.

5. It seems the words "without having any child " may be construed as equivalent to "without having had” any child. Weakley d. Knight v. Rugg, 7 T. R. 322; Wall v. Tomlinson, 16 Ves. 413; Jeffreys v. Conner, 28 B. 328.

6. But the words "without any children" mean without children at the death. Thicknesse v. Liege, 2 B. P. C. 365; Jeffreys v. Conner, supra; In re Booth; Pickard v. Booth, (1900) 1 Ch. 768; see In re Hambleton; Hambleton V. Hambleton, W. N. 1884, 157.

CHAPTER XLII.

GIFTS OVER UPON DEATH WITHOUT ISSUE.

WHEN there is a gift over upon the death of A. without issue before a given time the gift over takes effect upon the failure of issue of A., not necessarily at his death, but at any time during the given period, whether the will is before or since the Wills Act. Crowder v. Stone, 3 Russ. 217; Jarman v. Vye, L. R. 2 Eq. 784.

It is not quite clear whether a devise upon failure of issue to such of certain named legatees as should be "then living," which would in a will before the Act have been held to take effect upon failure of issue of the ancestor at his death, or at any time during the lives of the surviving legatees, would now be held to take effect only upon failure of issue of the ancestor at his death. See Murray v. Addenbrook, 4 Russ. 407; Greenwood v. Verdon, 1 K. & J. 74.

By sect. 29 of the Wills Act, words "which may import either a want or failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime, or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail or of a preceding gift being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise provided that this Act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or

:

Chap. XLII. Gift over upon death without issue before a given time.

of the devisee

Gift over without issue

upon death

to persons then living.

Effect of the

29th sect. of

the Wills Act upon gifts in

default of issue.

Chap. XLII. otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue." See In re Chinnery's Estate, 1 L. R. Ir. 296.

Death without issue male.

In what cases the section

does not apply.

Gift over in default of such issue, after limitations in tail.

After limitations in fee.

The words dying without male issue will, under this section, be restricted to male issue living at the death of the ancestor. Upton v. Hardman, I. R. 9 Eq. 157; In re Edwards; Edwards v. Edwards, (1894) 3 Ch. 644.

1. Where the words used are heirs of the body and not issue. Harris v. Daris, 1 Coll. 416; Re Sallery, 11 Ir. Ch. 236; Dawson v. Small, 9 Ch. 651.

2. Where the failure of issue would not before the Act have been construed to import an indefinite failure of issue. Morris v. Morris, 17 B. 198.

3. Apparently it would not apply where there is a gift of personalty to A. and the heirs of his body, followed by a gift over in default of his issue. At any rate, it does not where realty and personalty are given together in tail. Green v. Green, 3 De G. & S. 480; see Greenway v. Greenway, 2 D. F. & J. 137; Green v. Giles, 5 Ir. Ch. 25.

REFERENTIAL CONSTRUCTION OF GIFTS OVER UPON DEATH

WITHOUT ISSUE.

The construction of gifts over in default of issue is not affected by the Wills Act, where those words are construed to mean default of issue to take under the preceding limitations. It becomes necessary, therefore, to consider in what cases the referential construction has been adopted.

A. Where the words are for default of such issue, they naturally refer to the issue before mentioned.

1. This is clearly the case where the prior limitations are in tail. Doe d. Phipps v. Lord Mulgrave, 5 T. R. 320.

2. So where the prior limitations are to children and their heirs, a gift over in default of such issue means in default of such children. Doe d. Comberbach v. Perryn, 3 T. R. 484 ; Rer v. Marquess of Stafford, 7 East, 521.

But if there is anything to show that the children were intended to take estates tail, the words in default of such issue