They cited Dungannon v. Smith(a); Deerhurst v. Duke of St. Albans (b); Ware v. Polhill (c). Mr. Rendall, for William Liddell, argued that the substituted gifts by the codicil were void for remoteness; that the object of the revocation was merely to give effect to the substituted gift in favor of other persons, and that if those substituted gifts failed, the revocation, introduced only for the purpose of such substitution, became ineffectual, and that the original gift to the Liddells remained intact. He distinguished the case of a simple revocation from a revocation accompanied by a substitution. Secondly, he insisted that that gift to the Liddells was not too remote, as the survivorship was limited to the period of the death of the testator and his nephew. He cited Onions v. Tyrer (d); Lewis on Perpetuities (e); Re Thatcher (f); Ex parte Earl of Ilchester (g); Robertson v. Powell (h); Barclay v. Maskelyne (i); Jarman on Wills (k), Mr. Baggallay in reply. 1866. GEE v. LIDDELL. (No. 4.) The MASTER of the ROLLS. The question on this will and the two codicils is, whether the gifts contained in them upon the failure of the children or remoter issue of the nephew is or is not too remote, and if not, then who is entitled under the gift over. [His Lordship stated the limitation of the residue in the will to the nephew and his children.] June 11. 1866. GEE v. LIDDELL. (No. 4.) The gift over is "if there shall be no child or children or remoter issue of my said nephew who shall survive me and my said nephew and shall live to attain the age of twenty-one years." Now this gift over is clearly too remote, unless the effect of the word "survive" is to confine the happening of the event on which it is to take effect to the day of the death of the survivor of the testator and his nephew. It is argued that the word "survive" imports that the person to survive must be living at the death of the person whom he is to survive, and that it cannot, according to the ordinary import of the words (to give an instance) be said that Geo. III. survived William III. That it is true that Geo. III. survived his father and his grandfather, but that he did not survive Geo. I. or any of the other monarchs who preceded him on the throne of this realm. In answer to this, it is argued that the meaning of the word "survive" is more extensive, because if it were so restricted it would defeat the previous gift to the remoter issue of the nephew, which I have read and which clearly is not confined to the children living at the death of the nephew. It is true that this criticism is correct to this extent:—that the gift over would, if so construed, have that effect; but I think that this result ought not to induce the Court to give any other than the ordinary meaning to the words used by the testator. My opinion is that the meaning of the word "survive" or "survivor" imports that a person who is to survive must be living at the time when the event which he is to survive happens. I have consulted several dictionaries dictionaries on this subject, such as Johnson and Richardson and the authorities cited by them, and it appears to me in all instances to mean to outlive, that is, to be alive at the time of a particular event or the death of a particular person, which event or person the other is to survive. It is true that Dr. Johnson puts, as one of the meanings, "to live after the death of another," which, if taken in its full sense, would bear out the meaning contended for by the Defendants. But all the passages cited from the English writers tend to the conclusion, that the person who survives an event must be living at the time when that event takes place. The expression to live after is somewhat ambiguous in itself, and it is not the ordinary meaning as contended for by the Defendants. I also think that, in construing wills, words ought to have such meaning given to them (to use the expression used in the celebrated case of Forth v. Chapman (a) ), that res magis valeat quam pereat. I think, therefore, that the word "survive," properly speaking, imports that to prevent this gift from taking effect the remoter issue of the nephew must be alive at the death of the survivor of the testator and his nephew, and consequently that the gift over is confined to the contingency which gives effect to it taking place at the death of the survivor of the testator and his nephew; that consequently the gift over is not too remote, and that on the will alone, if unaffected by the codicils, the gift over to the three cousins George William Moore Liddell, William Liddell and Charles Liddell would take effect. [His Lordship next considered the effect of the two codicils, which it is unnecessary to state further than he came to the following conclusion: I am, therefore, of opinion that the Plaintiffs have a (a) 1 Peere Wms. 663. sufficient 1866. GEE บ. LIDDELL. (No. 4.) 1866. GEE v. LIDDELL. (No. 4.) sufficient locus standi to enable them to maintain and continue this suit, as, in some possible events, they may become interested in the property; but I shall make no declaration of rights until the event arises which makes this necessary. AN INDEX ΤΟ THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME. ABATEMENT. A person served with the decree ACCOUNT. 1. A. B., who was both heir and ad- 382 |