[655] forced by the plainest words, adopt a construction, by which the interest of a child of full age, and * settled in life, would be divested, if he happened to die before the youngest child attained twenty-one; that here the word "survivor" admitted of another and more rational meaning, namely, surviving so as to attain twenty-one; that, therefore, every child attaining twenty-one acquired a vested interest in his proportion of the capital; and that the children who died before attaining twenty-one, took, during their lives, a vested interest in that proportion of the rents and profits which corresponded to their presumptive shares; but that such interest determined on their deaths. Where a gift is made to several persons as tenants in common for life, and the survivor, with a limitation over after the death of the survivor, indicating therefore unequivocally that the survivor is to take at all events, the testator is considered to refer to survivorship indefinitely, and not to survivorship at his own death. Thus, in Doe d. Borwell v. Abey, (a) where the testator devised to his three sisters, for and during their joint natural lives, and the natural life of the survivor of them, to take as tenants in common, and not as joint tenants; and after the determination of their respective estates, then to trustees during the lives of his said sisters, and the life of the survivor of them, to preserve contingent estates; and after the respective deceases of his said three sisters, and the decease of the survivor of them, then over; Lord Ellenborough observed, that, to take as tenants in common, is, correctly speaking, repugnant to taking with benefit of survivorship; but if those words are understood to mean that they were to take it as tenants in common, which they might do with benefit of survivorship, then the only repugnance seemed to be in the words, "and not as joint ten[656] ants." (b) *"I would (said his Lordship) preserve the words, to take as tenants in common.' The words 'tenants in common' are of a flexible meaning, and may be understood, that although they should take by survivorship as joint tenants, yet the enjoyment was to be regulated amongst them as tenants in common. The prevailing intention of the testator seems to have been, that the estate should not go over until the death of the survivor." And Mr. Justice Bayley observed with great truth, "A tenancy in common, with benefit of survivorship, is a case which may exist without being a joint tenancy, because survivorship is not the only characteristic of a joint tenancy." (a) 1 M. & Selw. 428. (b) But are not these words susceptible of the same explanation? They were not to enjoy as joint tenants, with a right of accruer, but as tenants in common, with an express or implied limitation to survivors. It is evident that, by "benefit of survivorship," the learned Judge meant a gift to the survivor; and his observation goes to this: that although survivorship is not an incident to a tenancy in common, yet an express gift to survivors is consistent with it. It is observable, however, that there was no express gift to the survivor; but the Court seems to have implied one. (a) The principle, however, is the same. It remains to be observed, that in devises of estates of inheritance, for the avowed purpose of reconciling words of division or severance with a gift to the survivor, the devisees have been held to be joint tenants for life, and tenants in common of the inheritance in remainder. [657] Thus, in Barker v. Giles, (b) where the testator devised his real estate to be sold to pay debts and legacies, and the surplus of the money arising from the sale to be laid out in lands, to be settled to the use of J. and R., and the survivor of them, their heirs and assigns forever, equally to be divided between them, share and share alike; it was held, that they were joint tenants for life, with several inheritances, so that by the death of J. in the lifetime of the testator, R. took the whole for his life, and the devise of the moiety of the inheritance lapsed. But in Blissett v. Cranwell, (c) where the testator devised to his two sons and their heirs, and the longest liver of them equally to be divided between them and their heirs, after the death of his wife; it was held, that though it was given to them and the survivor, yet that the last words (namely, the words of division) explained what the testator meant by the words "survivor," that the survivor should have an equal division with the heirs of him who should die first. In Stones v. Heartley, (d) Lord Hardwicke recognized the authority of this case, and applied the same construction to a devise of the residue of the testator's estate, "to be equally divided among his three younger children, D., F., and M., and the survivor of them and their heirs forever." The objection to the construction adopted in the last two cases is, that it renders the gift to the survivor wholly inoperative. It is probable that the Courts at this day would incline to construe such gift as intended to provide for the event of any of the objects dying in the lifetime of the testator, as in Smith v. Horlock; (e) at any rate, in such a case as Stones v. Heartley, where there was no other period to which it could be referred. The other case, Blissett v. Cran (a) This case may, therefore, be added to those cited ante, vol. 1, p. 476. [658] (b) 2 P. W. 280; 9 Mod. 157; 14 Vin. 487; 2 Eq. Ca. Ab. 536; S. C. affirmed on appeal, 3 B. P. C. (Toml. ed.) 104. See also Folkes v. Western, 9 Ves. 456. (c) Salk. 226; S. C. 3 Lev. 373. (d) 1 Ves. Sen. 165. (e) 7 Taunt. 129. well, would raise the question (to which so considerable a portion of the present chapter has been devoted) whether it meant survivorship at that time or the period of division. Barker v. Giles (a) is distinguishable, inasmuch as the words of severance were not, as in the other cases necessarily applied to the estate for life. The authority of the case was recognized in the recent case of Doe d. Littlewood v. Green. (b) (a) Ante, p. 656. (b) 4 Mee. & W. 229. 469 CHAPTER XLIX. WORDS REFERRING TO DEATH SIMPLY, WHETHER THEY RELATE TO DEATH IN THE LIFETIME OF THE TESTATOR. "In case of the death," &c. to what period referred. Where the bequest is immediate. If any die," held to mean in the lifetime of the testator, [p. 660.] Cases of contrary construction, [p. 660.] "In case of her demise," construed at her death, [p. 661.] "In case of death happening," &c. not confined to death in lifetime of the testator, [p. 661.] Sir W. Grant's remark on Nowlan v. Nelligan, [p. 662.] "In case of" construed at, death, [p. 662.] Remark on Lord Douglas v. Chalmer, [p. 663.] No distinction in gifts to children, [p. 663.] But should she happen to die," held not to be restrictive, [p. 663.] "In case of her death," applied to testator's lifetime, [p. 664.] "In the event of the death of either," similarly construed, [p. 664.] Rule where bequest is future, [p. 664.] "In case of the death," referred to period of possession, [p. 665.] "Or" used synonymously with in case of, [p. 666.] Distinction where prior gift is expressly for life, [p. 666.] Remarks on Smart v. Clark, [p. 667.] Where prior gift comprises the income only, [p. 667.] WHERE a bequest is made to a person, with a gift over in case of his death, a question arises whether the testator uses the words "in case of," in the sense of at or from, and thereby as restrictive of the prior bequest to a life interest, i. e. as introducing a gift to take effect on the decease of the prior legatee under all circumstances, or with a view to create a bequest in defeasance of or in substitution for the prior one, in the event of the death of the legatee, in some contingency. The difficulty in such cases arises from the testator having applied terms of contingency to an event of all others the most certain and inevitable, and to satisfy which terms it is necessary to connect with death some circumstance, in association with which it is contingent; that circumstance naturally is the time of its happening; and such time, where the bequest is immediate, ( i. e.. in possession,) necessarily is the death of the testator, there being no other period to which the words can be referred.1 Hence it has become an established rule, that where the be- 1 In a will, the words "on the event of the death" of the devisee, are never con-strued to mean the event of a lapse; unless the will can have no other construction. Montgomery v. Montgomery, 2 Irish Eq. 161. quest is simply to A, and in case of his death, or if he die, to B, A surviving the testator takes absolutely.' (a) [ 660 ] The case of Trotter v. Williams, (b) appears to have carried this construction to a great length. J. S. bequeathed to A £500, to B £500, and in like manner gave £500 apiece to five others, and if any died, then her legacy, and also the residue of his personal estate, to go to such of them as should be then living, equally to be divided betwixt them all. The Court held, that these words referred to a dying before the testator, so that the death of any of the legatees after would not carry it to the survivors. The word "then" seemed to present some difficulty in the way of the construction adopted in this case. It followed immediately after the reference to the death of the legatees, and might with great plausibility have been held to refer to that event whenever it should happen; for a testator could hardly intend to make existence at a period anterior to his own death a necessary qualification of a legatee. This case exhibits the extreme point to which the construction in question has been carried. There are, however, a few cases of immediate bequests, in which the words under consideration have been construed to refer to death at any time, and not to the contingent event of death in the lifetime of the testator; but in each there seems to have been some circumstance evincing an intention to use the words in that rather than in the ordinary sense. Thus, the cir cumstance of the testator having bequeathed other prop[ 661] erty to the same person, * to be "at her own disposal," has been considered to indicate that the testator had a different intention in the instance in question. In Billings v. Sandom, (c) the testator being at Gibraltar, bequeathed to his sister A, (who was in England,) £1000, and in case of her demise he gave to B £800, and to C £200. And he bequeathed unto A, whom he left executrix, whatever goods, chattels, and money should be due to him at the time of his decease, "to be disposed of as she should think proper." Lord Thurlow said the testator intended to give a share of his bounty to his sister, and also to the others. The word "and" implied this; therefore she should take it for life, and then they should (a) Lowfield v. Stoneham, 2 Stra. 1261; Hinckley v. Simmons, 4 Ves. 160; King v. Taylor, 5 Ves. 806, [Sumner's ed. note (a) and cases cited ;] Cambridge v. Rous, 8 Ves. 12, [Sumner's ed. Perkins's note (a) and cases cited;] Webster v. Hale, Id. 410; Ommaney v. Beavan, 18 Ves 291; Wright v. Stephens, 4 Barn. & Ald. 674. But see Billings v. Sandom, 1 B. C. C. 393; Nowlan v. Nelligan, Id. 489; Lord Douglas v. Chalmer, 2 Ves. Jun. 501; also Chalmers v. Storil, 2 Ves. & Bea. 222. As to a similar question arising in the word or, as in a gift to A, or his children," see post, 666; also 1 Russ. 165. (b) Pre. Ch. 78; S. C. 2 Eq. Ca. Ab. 344, pl. 2. (c) 1 B. C. C. 393. 1 Lord Douglas v. Chalmer, 2 Ves. (Sumner's ed.) 501, note (a) and cases cited. |