v. [ *97 ] is no contingency expressed or implied upon which the pro- ABBOTT perty is given to the children. There is no contingency in the MIDDLETON. gift itself to the children. There is no exclusion of the children upon the happening of a contingency upon which the property is given over. Now taking it by degrees, let us consider for a moment how it would stand in this case. To the widow of the testator for life, to the son for life, to the son's children, just as he has given it, and after the son's death if it had stopped there, then over. There can hardly be a reasonable doubt, but what the *Court would have construed, and I think consistently with the authorities "after the death to mean "after the death without issue" to whom the property was before given. There is no intention shown to defeat the gift to the issue. The gift to the issue is absolute, positive, and unambiguous, and it is not cut down. has expressed his intention shortly but clearly; he has expressed a like intention in the case of the daughter's children, that after the death the property shall go to the other grandchildren. But has he not expressed as clear an intention here, that after the death it shall go to the son's children? At all events, therefore, if it had stopped here you have a gift clear and unambiguous after the son's death to his children. Then if you have a second gift, and the words are confined to "after the death" you must consider that to mean after the death without issue," because there was a previous gift to the children; and in the gift over, although they are not referred to, there is nothing to cut down the previous gift; and therefore consistency would require that you should read the words "after the death without issue." 66 He Then you come to the real point, "and after the death of my son if he shall survive his mother," then over. Now, how do those words alter it? I think it is rather stronger in that case than in the first case, because there is still something left. for the gift to the children to operate upon. Observe, upon any construction of that clause at the date of the will, you have not taken away all the interest of the children, because it is only upon the contingency of the mother surviving the son that you take it away at all. Therefore, if the son survive the mother. the children would take. The gift over, therefore, in any possible event at the date of the will destroys all the interest that had been previously given to the children. Therefore, speaking now, not of the event having happened, but before *the event happened, the gift over does not include every possible case. Therefore the gift to the children is not displaced partially by the gift over. I should therefore have thought [ *98 ] ABBOTT V. on that construction, that it would have admitted of considerable MIDDLETON. ground for saying, standing there alone, that it is stronger than the other would have been. [ *99 ] Now, what if you try it by transposition or division; suppose it stood thus: to the wife for life, to the son for life, and if the son die without children, living his mother, then to the other grandchildren in substitution. Try that first; then take it, to the wife for life, to the son for life, and then if he die in his mother's lifetime, to the children of his sisters, and, if his mother die in his lifetime, then to his own children. I cannot see how that is consistent with any possible intention of the testator, because he is adding to the large portion of his daughter's children at the expense and destruction of all present provision for the children of his son; indeed, in destruction of all provision for his son's children, because although the son himself takes under the residuary bequest, yet the testator did not intend that the children of his son should be dependent wholly upon their father, but he meant to provide for them an absolute positive fortune, which they should possess independently of the father. The other construction is inconsistent with the whole of the will, and I confess I should have thought it almost an impossible construction. Then it is said, there is one contingency already existing; namely, that the gift to the children of the son is contingent; that it is to those children only who may be living at the death. Why, therefore, it may be asked, should not another contingency be added? Undoubtedly another contingency has been added. But that cannot alter in any manner the previous disposition itself. It is not a question whether the children of the son are to take when they are born, or only if they are living at the death of the son; I assume it to be a settled point, that they can only take if they are living at the death of their father, the testator's son. Therefore it is contingent. But the question is just the same, what is the effect of the words. introducing a contingency which has no reference to their being living at the death? They can only take if they be living at the death. That is a contingency which applies to them properly. Without that they cannot take. The other contingency is one which deprives them of their property without any relation to them or their interests. What have they to do with the death of the mother (the testator's widow) in the lifetime of the son or with her surviving him? To them it is immaterial except so far as it is made a condition. To them it is unimportant as regards the property, because it is given to her for life only, afterwards to the son, and then to his children. Therefore the gift over on that contingency must stand by ABBOTT itself simply and only as a contingency upon that happening. MIDDLETON. It is said that the contingency here is wholly collateral, and that was very much, and very ably argued. I cannot take that view; cases were put, but everybody knows what would fairly be collateral. That is collateral which has no relation whatever in any sense to the subject of the gift; a fancy that the testator chooses to impose. But nobody who is competent to decide this question can dispute that the gift over, whatever be the true construction of it, is connected with the whole frame of the will. It may admit of one construction, it may admit of another, but it is clearly and decidedly a link in the chain of the whole limitation. If a Now, as regards construction, we must just bear in mind that there is a great deal of difference between gifts cutting down a previous interest, which of course always may be, and generally are, introduced with some word stronger *than "but," but I am not inclined to dwell on a word, generally speaking, where an interest is given, as here, to children absolutely. testator, in a given event, means to defeat that interest, he introduces it by strong words, such as provided always," or "I declare my will and mind to be," or "I declare my intention to be, that upon such an event happening, then it shall go over.” We must distinguish, therefore, between cases where the previous gift is properly cut down, and cases in which (if this be such a case), there is a short or imperfect statement of the event upon which the testator intended to found the gift over. If, therefore, I had to come to a conclusion simply, and only upon my view of the case, independently of authorities, I should say at once that this testator intended to cut down the gift to his son's children only in the event of their failing, and the son predeceasing his mother. There is some sense in that. His son has the property. As soon as the property had got into the son's family, he did not mean that it should go over to the children of the sisters, for whom he had already fully provided. If the son had once enjoyed the fruit, the tree was to remain with him. He would take it under the residuary gift, or it would go to his children. But if he did not live to enjoy it, and left no children, then the testator says, As my wife will be enjoying it during the whole of her life, I may as well give it after her death to those who will be living, and capable of enjoying it. And, in connexion with this, I cannot strike out the residuary clause which operates upon this very property. Remember, I am not going out of the will, or out of my province, when I look at the residuary clause; the residuary clause [ *100 ] ABBOTT MIDDLETON. [ *101 ] [102] operates on this very property we are now discussing. And I look at it to ascertain what was the intention of the testator. I can *understand why in giving the property to his unmarried daughter for life and then over, he introduces proper gifts over in case she shall have no children, because then there was no previous pre-existing life estate in any person; and therefore he had a present property to dispose of to his daughters, and to their children, and therefore the gift over arises. Now, here he was embarrassed by the fact, that he had given the first interest in his property to his widow for life, and he meant that if she survived the son, and he had no issue, it should go over. He stated that contingency which was in his mind, but there was no intention at all, in my apprehension, to defeat the gift to his son's children, if there were any. He omitted to mention that portion of his intention, because his mind was occupied, and filled with the contingency upon which he meant it to go over. He did mean it to go over if the son died in the lifetime of the mother, but with this addition, not to defeat the gift to the son's children if they lived to attain a vested interest. And then comes in that important observation, as I consider, which I have already made, that in the gift to the children of the son there is no contingency expressed, and in the gift over of that property upon the contingency of the wife surviving the son, there is no exclusion whatever referred to of the children. I find, therefore, the property remaining in the children, and in my apprehension clearly unaffected (speaking still of intention) by the gift over. Then the question is, am I at liberty to advise your Lordships to act upon that view according to the sound settled rules of law and the authorities? I have already said that I have never addressed myself with more care and consideration to any case than I have to this, because I feel that it touches upon very tender ground, and that we ought to be very careful in the application of the rules of law, and not in favour of what we may consider to be a hard case, to relax and to disturb settled rules. I shall therefore trouble your Lordships by referring to the cases bearing upon this question, most of which have been cited in the argument (there are one or two more which were not cited) in order to show your Lordships, as I hope I shall be able to do, that the conclusion to which I am advising you to come upon this case is altogether consistent with the clear and settled rules of law. The first case is that of Anonymous (1), and though it has been referred to before, it is so pertinent that I must refer (1) Anders. Rep. 33. your Lordships to it. It is in Norman French. At the conclusion of that case there is a reference to a case in Hilary, 33 Elizabeth. The case intended to be referred to, is, I believe, Atkins v. Atkins, which is a very important case on this subject, in Croke, Elizabeth, 248. There a man devised his land to S. and the heirs of his body, and after his decease to B. the eldest son of S., and *to the heirs of his body, with remainder over to three other of the sons of S. in the same manner. The question was, what estate had S. in the land? It was adjudged that S. had an estate tail. Now, observe, if there was ever a case that called for giving a meaning to words over so as to cut down the previous estate, it was that case. It was to me and the heirs of my body, and after my decease, to B., one of my sons, and the heirs of his body, after his decease to three other of my sons, and the heirs. of their bodies successively. Why, how obvious it was to say, here is first an estate tail given in words, but other words. make it only for life. But that is followed by distinct limitations in tail successively to the four sons, and therefore when he said, "heirs of the body," he meant heirs of the body as afterwards explained. But the Judges allowed no such interpretation. They said the words were clear, and that they gave an estate tail, and that the words giving the estate over after the decease of the man, meant after his decease without issue, and therefore they supplied those words, although the four sons successively of the person were to take estates tail, and therefore that would have satisfied the words "heirs of the body." I consider that, therefore, to be a great authority for adding words when you find that the previous estate is not clearly cut down, although the words introducing the gift over do not describe the whole event upon which the testator meant the gift over to ABBOTT v. MIDDLETON. [103] |