CHAPTER XLIII. Chap. XLIII. Life estate Possession of settled estates prima facie refers to possession under the settlement. Meaning of "entitled." SHIFTING CLAUSES. WHERE estates are given by will, and there is a clause shifting the lands if the devisee comes into possession of estates previously settled, the estates go over if the event happens. Cope v. Earl de la Warr, 8 Ch. 982. And the shifting clause will operate upon the life interest of a tenant for life, though his interest is such, that if he comes into possession of the settled estates, his life interest under the will must at the same time come into possession; so that, in effect, the gift of the life interest is nugatory. Lambarde v. Peach, 4 Dr. 553; on app. sub. nom. Turton v. Lambarde, 1 D. F. & J. 495. When estates devised by will are directed to shift on the devisee coming into possession of settled estates, the presumption is that the testator means a possession under the settlement; and, therefore, if the devisee comes into possession of the settled estates not under the settlement, but under an entirely new title, for instance, under the will of a tenant in tail, who had barred the entail, the shifting clause will not take effect. Taylor v. Earl of Harewood, 3 Ha. 372; Wandesforde v. Carrick, I. R. 5 Eq. 486. À fortiori, where the shifting clause is to take effect on the devisee becoming entitled to other estates under any existing or future will or settlement and he becomes entitled by descent from his father, though the latter took under a will, the devised estates will not shift. Walmesley v. Gerard, 29 B. 321. The term entitled would in such a clause mean entitled in possession. Umbers v. Jaggard, 9 Eq. 200; see Gryll's Trusts, 6 Eq. 589; In re Finch; Abbiss v. Burney, 17 Ch. D. 223. A person may be entitled in possession within the meaning Chap. XLIII. of a name and arms clause, though the testator's widow may Possession be entitled to occupy the mansion-house rent free and though beneficial. the charges may swallow up all the rents and profits. Re Varley; Thornton v. Varley, 68 L. T. 665. A shifting clause which affects "any person for the time being entitled to the possession or to the receipt of the rents and profits" of devised hereditaments does not apply to an infant, where by a clause in the will possession is given to trustees during his minority. Leslie v. Earl of Rothes, (1894) 2 Ch. 499. If the devisee takes the settled estates not under the settlement existing at the date of the will, but under a resettlement, which can be looked upon as a continuation of the old title, the devisee taking the same interest under the resettlement as he would have taken under the old settlement, except so far as his interest has been diminished for his own benefit, the shifting clause takes effect. Harrison v. Round, 2 D. M. & G. 190; see In re Croker's Estate, I. R. 2 Eq. 58; Wright v. Marshall, 51 L. T. 781. If the devisee takes under the resettlement a diminished interest in the settled estates or the estates themselves are diminished in quantity, the shifting clause has no effect. Fazakerley v. Ford, 4 Sim. 390; 1 A. & E. 897; Gardiner v. Jellicoe, 12 C. B. N. S. 568; Meyrick v. Laws, 9 Ch. 237. On the other hand, if the testator expressly gives directions to have a portion of the settled estates settled to other uses, the devolution of the settled estates to the devisee diminished by that portion will not prevent the operation of the shifting. clause. Micklethwait v. Micklethwait, 4 C..B. N. S. 790; see Stacpoole v. Stacpoole, 2 Con. & Law. 489, 501. The shifting clause will not, in the absence of a clear intention, take effect where the devisee has only an interest in remainder in the settled estates. Monypenny v. Dering, 2 D. M. & G. 145; Curzon v. Curzon, 1 Giff. 248; Bagot v. Legge, 34 L. J. Ch. 156; 12 W. R. 1097. As to the repeated operation of a shifting clause, see Doe d. Lumley v. Earl of Scarborough, 3 A. & E. 2, 897; Monypenny v. Dering, 2 D. M. & G. 145. need not be Whether a devisee taking settled estates resettlement under a is within a shifting clause. Operation of a shifting clause where a devisee has only remainder in settled estates. It seems a shifting clause would not avoid jointures and portions properly charged upon the estates previous to their shifting. Holmesdale v. West, 12 Eq. 280. Where an estate devised by will is directed upon the devolution of settled estates to the devisee to go over to the next remainderman, as if the tenant for life were dead, the estate will shift to trustees to preserve contingent remainders where there are contingent remainders to unborn sons of the tenant for life whose life estate has ceased; though, strictly speaking, if the tenant for life were dead, the estate of the trustees to preserve would also be at an end. Doe v. Heneage, 4 T. R. 13; see the opinion of Fearne, C. R., App. No. 6; Stanley v. Stanley, 16 Ves. 491; Morrice v. Langham, 11 Sim. 260; 12 Sim. 615; and see 11 Cl. & F. 667; Lambarde v. Peach, 4 Dr. 553; on app. sub. nom. Turton v. Lambarde, 1 D. F. & J. 495; see Lord Kenlis v. Earl of Bective, 34 B. 587. As to whether the heir or remainderman is entitled to the rents during the period between the shifting of the estate to the trustees and the birth of issue to take, it seems that a direction that the rents may be applied for the maintenance of a remainderman,, even during the lifetime of a tenant for life, would be sufficient to show that the rents were not to go to the heir. Turton v. Lambarde, 1 D. F. & J. 495 (judgment of Turner, L.J.); D'Eyncourt v. Gregory, 34 B. 36. On the other hand, in the absence of some such intention, they would go to the heir. Stanley v. Stanley, 16 Ves. 491; and see per Kindersley, V.-C., Lambarde v. Peach, 4 Dr. 553. When the devised estate is directed to go over, as if the person becoming entitled to the settled estates were dead without issue, the next remainderman takes on the event happening. Morrice v. Langham, 8 M. & W. 194. And in such a case, if the next limitations in remainder are contingent, the estates will not go to trustees to preserve contingent remainders during the life of the person from whom the estate is shifted, since their estate would in any event be inadequate to support contingent remainders limited upon a failure of issue of such person after his death. Carr v. Earl of Errol, 6 East, 58. When the devised estates are directed to go to the next Chap. XLIII. remainderman, as if the person taking the benefit upon the accruer of which the estate is to shift were dead without issue, the construction will not be influenced by the fact that the younger children of the person from whom the estates shift may happen to take no benefit under the settlement. Doe d. Lumley v. Earl of Scarborough, 3 Ad. & E. 1. to issue capable of taking under of the devised the limitation estate pre ceding the But where estates were devised to several sons successively Issue limited in tail male, with remainder to the children of the sons in tail general, with remainder over, and the estates were directed to go over upon the acquisition of settled estates (which could not go to any female issue of the testator's sons), as if the person taking the settled estates were dead without issue, the words "without issue" were confined to issue capable of taking under the limitations of the devised estate preceding the next remainder. Gardiner v. Jellicoe, 12 C. B. N. S. 568; 11 H. L. 323. next remainder. CHAPTER XLIV. go as heir looms. GIFTS BY REFERENCE. Chap. XLIV. A BEQUEST of chattels to a person and his heirs or successors Chattels given to go according to the limitations of real estate or as heirto a person to looms vests absolutely in the person named, whether such words as "so far as the rules of law and equity permit," or "to be enjoyed and go with the title," are added or not. The Court, in fact, refuses to treat such a bequest as executory. Rowland v. Morgan, 6 Ha. 463; 2 Ph. 764; In re Johnston ; Cockerell v. Earl of Essex, 26 Ch. D. 538. Chattels to go with a title. Chattels to go as heirlooms with realty. The cases of Gower v. Grosvenor, Barn. 54; 5 Mad. 337, and Trafford v. Trafford, 3 Atk. 347, so far as they express a contrary opinion, are overruled. In the same way, a gift of chattels to such persons as should from time to time be the holders of a title, so far as the rules of law permit, vests absolutely in the first holder of the title after the testator's death, though he may have been born at the testator's death, and could, therefore, have been cut down to a life interest. Tollemache v. Coventry, 2 Cl. & F. 611; 8 Bl. N. S. 547; In re Viscount Exmouth; Exmouth v. Praed, 23 Ch. D. 158. A gift of personalty as heirlooms to the persons for the time being entitled to real estate, so far as the rules of law and equity permit, vests absolutely not in a tenant for life of the real estate, but in the first tenant in tail at birth, whether he comes into possession or not. Trafford v. Trafford, 3 Atk. 347; Taughan v. Burslem, 3 B. C. C. 101; Foley v. Burnell, 1 B. C. C. 274; 4 B. P. C. 319; Carr v. Lord Errol, 14 Ves. 478; Lord Scarsdale v. Curzon, 1 J. & H. 40; In |