Hill v. Hill, 6 Sim. 136; see Duke of Bedford v. Marquis of Chap. XLV. Abercorn, 1 M. & Cr. 312, p. 334; Higginson v. Barneby, 2 S. & St. 516; In re Grier, I. R. 6 Eq. 386. Hotchpot clauses will, as a rule, be inserted. Miller v. Gulson, 13 L. R. Ir. 408; see Lees v. Lees, I. R. 5 Eq. 549. Where certain powers are given to tenants for life if qualified, and if not qualified, to trustees for them, general words will not authorise powers of sale and exchange. Brewster v. Angell, 1 J. & W. 625; Horne v. Barton, Jac. 437. And where certain powers are given, general words will, as a rule, authorise only powers of a like nature; they will not, for instance, authorise the insertion of a power to grant building leases when a power to lease is expressly given. Pearse v. Baron, Jac. 158. The general words may, however, be so placed as to show that their generality is not to be controlled. Lindon v. Fleetwood, 6 Sim. 152. T.W. T T CHAPTER XLVI. Chap. XLVI. Gift over upon an indefinite failure of issue. The Court will not constructively limit the failure of issue, so as to prevent the implication of an estate tail. Whether an estate tail IMPLICATION. IMPLICATION OF ESTATES TAIL. If there is a devise to A. simply, or to A. for life, followed by a gift over in default of issue, if these words import an indefinite failure of issue, A. takes an estate tail. Machell v. Weeding, 8 Sim. 4; Daintry v. Daintry, 6 T. R. 307; In re Banks' Trusts, 2 K. & J. 387. And in wills before the Wills Act, if the limitation is to A. simply, or to A. for life, with a gift over in default of issue, A. will take an estate tail, though there are words which might constructively limit the failure of issue within a definite period, since this is the only construction which will carry anything to the issue. Wyld v. Lewis, 1 Atk. 432; Simmons v. Simmons, 8 Sim. 22 (where the devise was in effect to A. for life, and if she dies without issue over, the power to appoint to issue being merely discretionary); Butt v. Thomas, 11 Ex. 235; 1 H. & N. 109. As to whether an estate tail will be implied in a person, will be implied from a gift over in default of his issue simply, where no interest is given to him by the will, see Parker v. Tootal, 11 H. L. 143; Walter v. Drew, Com. Rep. 373. from a gift over in default of issue of a person who takes nothing under the will. And where, in a devise to A. for life, remainder to his children either for life or in tail, an estate tail is implied in A. from a gift over in default of issue, the estate tail so implied will be in remainder, to take effect after the prior estates expressly limited. Doe d. Bean v. Halley, 8 T. R. 5; Doe d. Gallini v. Gallini, 5 B. & Ad. 621; 3 Ad. & E. 340; Forsbrook v. Forsbrook, L. R. 3 Ch. 93; Andrew v. Andrew, 1 Ch. D. 410. Where in a will after the Wills Act lands were devised to Chap. XLVI. A. "during his life and to his eldest son and his heirs in tail male; and in default of issue" over, an estate in tail male was implied in A. subsequent to the estate in tail male in his eldest son. Neville v. Thacker, 23 L. R. Ir. 344. And where an estate tail is to be implied either in an ancestor or his issue, it will be implied in the ancestor, so as to take in the whole line of issue. Atkinson v. Barton, 10 H. L. 213; Forsbrook v. Forsbrook, supra. IMPLICATION OF LIFE ESTATES. I. As regards Real Estate. As between son, an estate father and tail will be implied in the father. heir-at-law gives A. a life If there is a devise of realty to the heir-at-law after the Devise to the death of A., A. will take an estate for life by implication. after the It is evident that the heir who would take in case of intestacy death of A., is not meant to take immediately, and the only way of carrying out the testator's intention is to give A. a life estate. "A. must have the thing devised or none else can have it." Gardner v. Sheldon, Vaughan, 259; Tudor, L. C. 625. But a devise to a stranger after the death of A. gives A. no estate by implication, since the heir-at-law may have been intended to take in the meantime. Aspinall v. Petrin, 1 S. & St. 544. In order that A. may take a life estate the person to whom the lands are given after the death of A. must be the heir-atlaw at the time of the devise, and not at the time when the devise takes effect. Aspinall v. Petrin, supra. estate. Person to death of A. must be heir take on the at date of devise. Devise at the death of A. to one of Similarly, a devise to one of several co-heiresses after the death of A. gives A. a life estate. Hutton v. Simpson, 2 Vern. 723, as stated in King v. Ringstead, 9 B. & C. 218, p. 228; co-heiresses. see Rhodes v. Rhodes, 7 App. C. 192. The rule does not apply where the devise is to the heir and others after the death of A. Ralph v. Carrick, 11 Ch. D. 873. The express gift of certain lands to A. does not in itself prevent him from taking other lands by implication. 13 Hen. VII., f. 17; Brook, Devise, pl. 52, cited in Gardner V. Sheldon, Vaughan, 259; Tudor, L. C. 4th Ed. 388, 392. TT 2 See several Devise at the the heir and death of A. to others. Whether an express devise prevent him to A. will from taking by implica tion. Chap. XLVI. Distributive construction Therefore, where lands are devised to A. for life, and after the death of A. the lands previously devised, together with other lands, are devised to B., A. will or will not take an estate for life by implication in the other lands, according as B. is the heir or a stranger. Aspinall v. Petrin, 1 S. & St. 544; King v. Ringstead, 9 B. & C. 218; Attwater v. Attwater, 18 B. 330. But words which taken in their grammatical sense are where lands, joint and apply to the two classes of property, will be construed distributively if the intention of the testator is manifest that the lands not expressly devised for life are to go to the devisees at once. Cook v. Gerard, 1 Saund. 183, cit. 9 B. & C. 225; Simpson v. Hornsby, 2 Vern. 723; Prec. Ch. 439, 452; Doe v. Brazier, 5 B. & Ald. 64; see Rhodes v. Rhodes, 7 App. C. 192, where a devise after the death of A. was held under a peculiar will to vest immediately. in some of which A. takes a life The mere fact that provision has already been made for A. will be an argument against giving a life estate by implication, and therefore in favour of a distributive construction. See Sterens v. Hale, 2 Dr. & Sm. 22; James v. Shannon, I. R. 2 Eq. 118. Of course, if the devise after the death of A. can be construed as merely postponing the vesting in possession till the death of A., no argument in favour of implication can arise. Barnet v. Barnet, 29 B. 239. And in the same way, if there is a residuary devise, so that nothing is undisposed of, there can be no implication. Horton v. Horton, Cro. Jac. 74. II. As regards Personal Estate. By analogy to the rule with regard to real property, it appears that if personal property be given to the next of kin after the death of A., A. will take a life interest by implication, if there is no residuary bequest. Sterens v. Hale, 2 Dr. & Sm. 22; Cock v. Cock, 21 W. R. 807; Blackwell v. Bull, 1 Kee. 176. In Horton v. Horton, Cro. Jac. 74, there was in effect a residuary bequest according to the then state of the law. A life interest will not be implied in A. where the persons to take on his death are not the next of kin or are the next of kin along with other persons or are only some of the next Chap. XLVI. of kin. Ralph v. Carrick, 11 Ch. D. 873; Woodhouse v. Spurgeon, 49 L. T. 97; Green v. Flood, 15 L. R. Ir. 450; In re Springfield; Chamberlin v. Springfield, (1894) 3 Ch. 603. In order to imply a life interest in A. there must be something more than a mere gift after his death. Some of the earlier cases in which a life interest has been implied would probably not now be followed. See Roe v. Summerset, 5 Burr. 2608; Bird v. Hunsdon, 2 Sw. 342; Humphreys v. Humphreys, 4 Eq. 475. in settlement. In the case of marriage settlements settling property on the Implication wife during coverture and providing for her death during the marriage husband's life, with limitations after the death of the survivor, but containing no provision for the event of the wife surviving the husband, a life interest has in that event been implied in the wife. Tunstall v. Trappes, 3 Sim. 312; Allin v. Crawshay, 9 Ha. 382. So in wills after a life interest to A., with a life interest in Intention to give life certain events to B., followed by a gift over after the death of interest. A. and B., a life interest has been implied in B. though the events did not happen. In re Betty Smith's Trusts, L. R. 1 Eq. 79; In re Blake's Trust, 3 Eq. 799; see Isaacson v. Van Goor, 42 L. J. Ch. 193; 21 W. R. 156. Where the testator's widow was directed to carry on the testator's business and after his death he directed his property to be divided among his children, the widow took a life interest in the property upon the general intention to keep the family together. Blackwell v. Bull, 1 Kee. 176; see Cockshott v. Cockshott, 2 Coll. 432. A residuary bequest or a gift in default of appointment Effect of a where the bequest after the life of A. is made under a power, bequest. residuary affords an argument against the implication of a life interest. Cranley v. Dixon, 23 B. 512; Henderson v. Constable, 5 B. 297. There is no implication in favour of A. where the gift is if No implicaA. dies under twenty-one or unmarried, since in such a case an absolute interest and not a life estate would have to be implied. James v. Shannon, I. R. 2 Eq. 118; Harris v. Du dies under 21, Pasquier, 20 W. R. 668. tion arises in favour of A., where the gift is if A. to B. |