476 CHAPTER L. WORDS REFERRING TO DEATH COUPLED WITH A CONTINGENCY. -TO WHAT PERIOD THEY RELATE.-CLASSIFICATION OF THE CASES. DISTINCTION between the cases discussed in the last and in the present chapter. Death of object of prior gift in testator's lifetime, [p. 671.] Ulterior legatees held to be entitled, [p. 671.] Ulterior gift not defeated by death of prior legatee in testator's lifetime, [p. 672.] Distinction where gift is to class, [p. 673.] Ulterior gift not defeated by death of prior legatee in testator's lifetime, [p. 674.] Gift over in case of death to executors or administrators or personal representatives, [p. 675.] Gift to personal representatives not substitutional, [p. 676.] Gift over of interest of married woman in case of death, to her next of kin, [p. 677.] Whether children of objects dead at date of will can have the benefit of clause of substitution, [p. 677.] Children of objects dead at date of will excluded, [p. 678 to 680.] Suggested distinction where decease is after will, [p. 681.] Case of Thornhill v. Thornhill overruled, [p. 682.] Distinction where children of deceased claim under original gift, [p. 683.]. Children of deceased objects allowed to participate, [p. 684.] Children of deceased objects let in, [p. 685.] Disinclination of Courts to exclude children of deceased, [p. 685.] Children of deceased objects let in, [p. 686.] General conclusion from preceding cases, [p. 687.] Whether gift over takes effect on happening of event subsequent to death of testator, [p. 687.] Case of Allen v. Farthing, [p. 688.] The event of death leaving children held to apply to period after testator's death, [p. 689.] Gift over on A marrying, and having children, extended to event after death of testator, [p. 690.] Effect where gifts over comprise every possible event, [p. 690.] Remarks on Craton v. Lowe, [p. 691.] Distinction where prior gift may be regarded as a mere life interest, [p. 692.] Rule where there is a prior life or other interest, [p. 693.] Contingency restricted to period of distribution, [p. 694.] Remark on Galland v. Leonard, [p. 694.] Contingency restricted to period of distribution, [p. 695.] Remark on Lord Brougham's judgment in Home v. Pillans, [p. 696.] Word "payable" occurring in gift over, whether it refers to majority or the period of distribution, [p. 696.] Word "payable" referred to majority. not to period of distribution, [p. 697, 698.] Word "payable" referred to period of distribution, [p. 699.] Remarks on Bright v. Rowe, [p. 700.] Word "payable" referred to period of majority, [p. 700.] Result of the cases, [p. 701.] THE distinction between the cases which form the subject of the present inquiry, and those discussed in the last chapter, is obvious. There it was necessary either to do violence to the testator's language, by reading the words providing against the event of death as applying to the occurrence of death at any time, (in which sense, death is not a contingent event,) or else to give effect to the words of contingency, by construing them as intended to provide against death within a given period. In the cases now to be considered, however, the expositor of the will is placed in no such dilemma; for the testator having himself associated the event of death with a collateral circumstance, full scope may be given to his expressions of contingency without seeking for any restriction in regard to time; and accordingly there seems to be no reason (unless it be found in the context of the will) why the gift over should not take effect in the event of the prior legatee's dying under the circumstances described at any period. Cases of this kind, however, will be found to present many distinctions which require particular attention. The cases are divisible into two classes: 1st. Where the question is, whether the substituted gift takes effect in the event of the prior legatee dying under the circumstances described in the testator's lifetime. 2dly. Where the question is, whether the substituted gift takes effect [ 671] in the event of the prior legatee surviving the testator, and afterwards dying under the circumstances described; and if so, whether at any time subsequently. I. It may be stated as a general rule, that where the gift is to a designated individual, with a gift over, in the event of his dying without having attained a certain age, or under any other prescribed circumstances, and the event happens accordingly in the testator's lifetime, the ulterior gift takes effect immediately on the testator's decease, as a simple absolute gift. In the early case of Darrel v. Molesworth, (a) where a legacy of £50 was given to D. T. at twenty-one or marriage, and at the close of his will, (which contained several pecuniary bequests,) the testator added, that if any legatee died before his legacy was payable, the same should go to the brothers or sisters of such legatee. D. T. died in the lifetime of the testator, (it is presumed under twenty-one, though the fact is not stated,) and it was adjudged that it was no lapsed legacy, but went to the sister of the legatee. So in the case of Haughton v. Harrison, (b) where a legacy of £500 was bequeathed to A the son of B, if he should live to be twenty-one; and if he should die before, then to the other children of B. A died under age in the lifetime of the testator; and the right of the other children of B to the legacy, in this event, if any such, was not denied; the only question being, (a) 2 Vern. 378. See also Miller v. Warren, Id. 207. (b) 2 Atk. 320. [ 672] tive. * whether the ulterior bequest had not failed by the event of the non-existence of objects thereof living at the testator's decease, and which was decided in the nega Again, in the case of Mackinnon v. Peach, (a) where a testatrix directed certain chattels to be divided between her two daughters, and that upon the demise of either of them without lawful issue, the share of her so dying should go to her sister; it was held, that one of the legatees having died unmarried in the testatrix's lifetime, such legatee's surviving sister was entitled to the whole. So, in the case of Le Jeune v. Le Jeune, (b) where a testator gave all his estates to his wife for her life, and directed the whole of his property to be sold at her decease, and the proceeds to be divided into five equal shares, one of which shares he directed should be paid to each of his four sons that should be living at her decease; and in case of either of their deaths, then the share of such son so dying to be paid to his issue, as they should attain the age of twenty-one years; and in case either of his sons should die without issue, then his share to go to the survivors of his five children. The testator then gave the remaining fifth, with the proportions of his sons' shares who might die without issue, to his daughter and her children. One of the four sons died in the testator's lifetime, leaving a daughter, who survived the testator and attained twenty-one; and Lord Langdale, M. R., held, that such daughter was entitled to her father's one fifth share. And this construction prevailed (in spite of some apparently opposing expressions) in the case of Rheeder v. Ower, (c) where a testator bequeathed the interest of the residue of his property to his five sisters for life, and in case any of them should [673] die leaving issue, then the trustees were to pay and transfer the share to which his sister so deceasing was entitled at or before the time of her decease to receive the interest and dividends thereon, unto and amongst all and every such child or children of such deceased sister equally between them, share and share alike, at their respective ages of twenty-one years. One of the sisters died in the testator's lifetime leaving children, and it was objected to the claim of such children that the trust was confined to the children of those sisters who had become entitled to receive the interest; but Lord Thurlow decided in favor of their claim, observing, that in a will so loosely drawn, it was more probable that that was the testator's intent than the contrary. Where, however, the gift is to a class, the objects of which are not, according to the general rules of construction, ascer (a) 2 Kee. 555. (b) Id. 701. (c) 3 B. C. C. 240. tainable until the decease of the testator, (as in the case of a gift to children generally,) the application of the words, providing against the event of death to children dying in the testator's lifetime becomes rather more questionable, they not being, in event, actual objects of the gift, and therefore not within the clause in question, if that clause is to be construed strictly as a clause of substitution. There are not wanting cases, however, in which, even under such circumstances, the words have been held to apply to death in the testator's lifetime, though the language of the will seemed to afford a plausible argument in favor of the contrary construction, the gift over being of the "legacy" or "share" of the deceased object-terms which might seem in strictness to apply only to persons who, by surviving the testator, had become actual objects of gift, in contradistinction to those who, dying before him, could, in point of fact, have no "share" or "legacy" under the will. Thus, in the case of Willing v. Baine, (a) where a [ 674] testator bequeathed £200 a-piece to his children, payable at their respective ages of twenty-one, and if any of them die before their age of twenty-one, then the legacy given to the person so dying to go to the surviving children. One of the children died in the testator's lifetime, (a minor, it is presumed, though the fact is not stated,) and it was held that the children living at the death of the testator were entitled to his legacy. So, in the case of Walker v. Main, (b) where a testator devised real estate to his wife for life, and after her decease to trustees in trust for sale, and to pay the produce to his children and grandchildren in certain shares, on their attaining twentyone or marrying; but if any of his grandchildren should happen to die before the time of such legacy becoming due and payable, then the testator bequeathed the part or share of the child, children, or grandchildren so dying, unto and amongst those that should be then living, share and share alike. Two of the children died in the testator's lifetime, and it was held that their shares devolved to the survivors. Again, in the more recent case of Humphreys v. Howes, (c) where a testator bequeathed the residue of his personal estate to trustees upon trust for A, B, and C, * for their lives, and to the survivors for life, and after their decease [ 675] (a) 3 P. W. 113. But compare these cases with Rider v. Wager, 2 P. W. 331 ; where a testator bequeathed a sum of money owing to him by A to the younger children of A, and directed the same to remain in A's hands until the children should be capable of receiving it, and the legacy or share of any of them dying before such time to go to the survivors and survivor of them, and it was considered that this must be intended if the legatee should have survived the testator; but that where the legatee died in the lifetime of the testator, as nothing could ever vest in the legatee, so neither could it survive from him. (b) 1 Jac. & Walk. 1. (c) 1 Russ. & My. 639. upon trust to transfer and pay the same to E (son of B) and F (son of C); and in case E or F should happen to die before his share of the trust moneys should become payable, without learing issue of his body, then his share to go to the survivor; and in case both should die before their shares should become payable without leaving issue, then over. E and F both died in the testator's lifetime without issue. It was contended, that the event intended to be provided against was the death of the legatees after the testator's decease, until which event they could not with propriety be said to have any "shares" in the property; but Sir J. Leach, M. R., held, that the case of Willing v. Baine was applicable, and accordingly that the ulterior bequest took effect, notwithstanding the death of the legatees in the testator's lifetime. It seems, however, that where the objects of gift in the clause in question are the executors or administrators, or personal representatives of the deceased legatee, such clause is considered as merely showing that the legacy is to be vested immediately on the testator's decease, notwithstanding the subsequent death of the legatee before the period of distribution or payment, and not as indicating an intention to substitute as objects of gift the representatives of those who die in the testator's lifetime.1 Thus, in the case of Bone v. Cook, (a) where a testator bequeathed the residue of his estate, at the death of his wife, equally between four persons, and then provided, that in case of the death of any of the legatees before their legacies should be come payable, then that the legacy of each so dying [ 676] should go to his, her, or their children; and in case of such decease of any of the said legatees without having a child or children, the legacy of him or her so dying should go to his or her executors or administrators. It was held that the share of one of the legatees who died in the testator's lifetime unmarried, lapsed, though it was admitted, that if she had left a child, such child would have been entitled under the previous clause. So, in the case of Corbyn v. French, (b) where a testator bequeathed the residue of his estate to his wife for life, and at her decease gave (among other legacies) one to each of the children of E., or their representatives or representative; Sir R. P. Arden, M. R., was of opinion, that by the death of one of the children, in the testator's lifetime the legacy lapsed, on the ground that a testator must be supposed to contemplate that his legatees will survive him.2 (a) M'Clel. 168. (b) 4 Ves. 418 [Sumner's ed. note (a)]. 1 See ante, vol. 1, p. 301, note and cases cited. See ante, vol. 1, p. 301, note and cases cited; 2 Williams, Ex. (2d Am. ed.) 869; Dickinson v. Purvis, 8 Serg. & R. 71; Trippe v. Frazier, 4 Harr. & Johns. 446; Harris |