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Accordingly in Wakefield v. Maffet (d), by a marriage settlement, lands were conveyed upon trust for husband and wife successively for life, and, after the death of the survivor, to levy out of the said lands the sum of 3,0001. to be divided to and among all the children in equal shares and proportions as tenants in common and not as joint tenants, the share of a son or sons to be paid to him or them upon his or their respectively arriving at their full age of twenty-one years, and the share of a daughter or daughters on her or their attaining that age or marriage, with provisions for interest by way of maintenance and for benefit of survivorship, if any of the children died, before his, her, or their share or shares should become payable, unmarried, and without leaving issue. A son attained twenty-one and died in the lifetime of his father, and it was held that, there being no words indicating a clear *intention to make the vesting of children's shares contingent on their surviving both parents, the rule applied and the son took a vested interest on attaining twenty-one.

But when the testator has unequivocally expressed an intention, that a provision to be made for his children shall depend on their surviving both or either of their parents, the court must give effect to that intention, and can only lean to the presumption in favor of chil. dren, where the intention of the testator is ambiguously expressed (e).

An illustration of these doctrines may be found in the decision of Whatford v. Tvoore (f); in the arguments of which case almost all the previous authorities on this subject were cited : And Lord Cottenham, in giving his judgment, made the following observations. “In a case of doubtful construction upon the whole instrument, the Court leans to that which will include children so dying (i.e. attaining their age in the lifetime of their parents and dying before them), as most convenient, and most likely to have been the intention of the parties. It may be thought that Courts have gone the full length that

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806. The rule generally will not be applied where the issue of a deceased child is provided for. Re Wilmott's Trusts, L. R. 7 Eq. 532. The rule is the same as to grandchildren where the settlor or testator is in loco parentis : but not otherwise : Swallow v. Binns, 1 Kay & J. 417. Farrer v. Barker, 9 Hare, 737.

(d) 10 App. Cas. 422.

(e) Howgrave v. Cartier, 3 V. & B. 85. Hotchkin v. Humfrey, 2 Madd. 65

Fitzgerald Field, 1 Russ. 430. Tucker 0. Harris, 5 Sim. 538. Taw. ney v. Ward, 1 Beav. 563. Ex parte Hunter, 3 Younge & C. 610. Bright v. Rowe, 3 M. & K. 316. Evans 0. Scott, 1 H. L. C. 43. Skipper v. King, 12 Beav. 29. Re Williams, 12 Beav. 317. Farrer v. Barker, 9 Hare, 737. Jeffery v. Jeffery, 17 Sim. 26. Day v. Radcliffe, 3 C. D. 654.

(f) 7 Sim. 574. 3 Mylne & Cr. 270. Jeyes v. Savage, L. R. 10 Ch. 555.

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is justifiable in order to attain this object (9), but no case has gone so far as to do violence to the words, if no other part of the instrument be found inconsistent with them.” His lordship further observed, that," the cases upon this subject turn upon such nice distinctions, and are so little reconcilable, that the only reasonable course is to adopt the rule which has been generally recognized, of leaning in favor of a construction which includes all the children, if the instrument affords fair grounds for doing so; but if not, to give effect to the plain meaning of the words *used.” And his lordship added that the cases " have proceeded upon gounds so peculiar, and have departed so widely from the rule of construing instruments according to the obvious and natural meaning of the words used, that it is not possible to come to any very satisfactory conclusion upon any case which varies at all from former decisions.”

It must be observed, however, that a gift to a class which is void as A bequest to a

to any member of that class, by reason of being too class which is void remote, must fail altogether : Therefore if a bequest is to any member of made to a class of persons, in such a manı

uner, that, with altogether.

respect to some of the members of it, it is too remote, by reason of the interest not vesting within the legal limits during which a bequest may take effect, the whole gift fails, notwithstanding, with respect to others of the class, it may not be too remote ; for what the court has to determine is, whether the class can take ; if not, the court cannot split into portions the general bequest to the class, and say, that because the rule of law forbids the testator's intention from operating in favor of the whole case, his bequests shall be made, what he never intended them to be, viz., a series of particular legacies to particular individuals, or distinct bequests, in each instance, to two different classes : for this, in effect, would be to make a new will for the testator (h). Nor will this rule be varied, even in favor of a

that class, fails

(9) Farrer o. Barker, 9 Hare, 744, by Turner, V.-C. Accord.

(h) Leake v. Robinson, 2 Mer. 363, 390. Dungannon 0. Smith, 12 Cl. & F. 546. Seaman v. Wood, 22 Beav. 591, Smith v. Smith, L. R. 5 Ch. 342. Hale v. Hale, 3 C. D. 643. Pearks 0. Moseley, 5 App. Cas. 714, approving Re Moseley's Trusts, 11 C. D. 555, and disapproving Re Moseley's Trusts, L. R. 11 Eq. 499. But where there is a gift or devise of a given sum of money

or property to each member of a class, and the gift to each is wholly independent of the same or similar gift 10 every other member of the class, and cannot be augmented or diminished whatever be the number of the other members, then the gift may be good as to those within the limits allowed by law : Storrs v. Benbow, 3 De Ges, M. & G. 390. Cattlin o. Brown, 11 Hare, 377. Wilkinson 0. Duncan, 30 Beav, 111. See also Webster 7. Bod.

person who is named by the testator, and with respect to whom, individually, the *bequest is not too remote, if he is mentioned as a member of the class, with respect to whom, as a class, the gift is too remote (i).

Another question, closely connected with these points, has frequently arisen, viz., whether the terms of a legacy give

legacies to the legatee an absolute and indefeasible interest in subject to executhe thing bequeathed, or an interest, which, though vested in him, is subject to an executory bequest over, on the happening of a particular event. But this inquiry will, perhaps, be more appropriately introduced hereafter (k), in conjunction with the doctrine of conditional legacies.

Vested

tory bequest over.

3. Of the lapse of legacies payable out of the real estate. As to legacies payable out of real estate only, the first rule above stated (1), as adopted with respect to legacies payable Distinction be

legacies out of personal estate, viz., that when the gift and the tween

payable out of

and time of payment are distinct, the legacy vests imme. real estate

legacies payable diately, does not hold, generally speaking.

out of personal

estate as to time The reason of this distinction is, that, in the civil of vesting. law, a bequest to a person to be paid at a future time, was held to confer on him a present right to the legacy, notwithstanding the time of payment was future ; so, that, immediately on the testator's decease, it became, in the eye of the civil law, a present debt, payable at a future time. Now, anciently, legatory matters arising on personal estate were solely under the jurisdiction of the ecclesiastical courts, and the decisions *of those courts were regulated by the civil law: By degrees courts of equity took cognizance of them, and with a view to uniformity of decision, adopted the rule in question, in respect to such legacies : But legacies payable out of real estate never fell within the cognizance of the ecclesiastical courts; there dington, 26 Beav. 128, 137. Bentinck son.” But Porter v. Fox would seem 0. Portland, 7 C. D. 693.

to be in accordance with the later de(1) Porter 0. Fox, 6 Sim. 485. See, cisions if the amount of the share of however, James v. Lord Wynford, 1 the individual named could not be asSm. & G. 40, in which case Stuart, certained without ascertaining the whole V.-C., says that he has some difficulty number of shares, including the shares in following the decision in Porter o. of those to whom the bequest would be Fox, which seems to him “not sustain- too remote. able on an accurate view of what was (k) Post, p. *1122, et seq. said by Sir W. Grant in Leake o. Robin- (1) Ante, p. *1088.

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was not, therefore, the same reason for applying this rule to that description of legacies ; and, as it appeared contrary to the favor which the law shows to the owner of the inheritance, courts of equity rejected it as a general rule in respect to all such legacies (m).

The leading case generally referred to as establishing this distinction, is Poulet v. Poulet, or Pawlett v. Pawlett (n): There Lord Pawlett settled by deed real property in trustees for a term of

years in remainder after his death, upon trust, after payment of his debts, to pay such sums of money and maintenance for younger children as his lordship should appoint by will ; and in default of appointment to raise 4,0001. apiece for each such child, payable at twenty-one or marriage, with maintenance in the intermediate time : Lord Pawlett appointed by will to his two daughters, and only younger children, Susanna and Vere, 4,000l. each, to be raised and paid in money, and at the times, and with the maintenance prescribed by the deed : Both daughters survived him : But Vere died under age, and unmarried, before any part of her portion could be raised ; and her mother was her administratrix, who claimed her portion : The question was, whether such claim could be supported, as Vere died under twentyone, and unmarried : And the Lord Keeper determined in the negative; observing that “the portion was to come wholly out of the lands, and the personal estate no way subjected or made liable to the payment of it by the Will.”

The rule of law laid down in the case of Pawlett v. Pawlett has been adopted in a numerous series of cases (), *and in conformity with the principle of it, it has been further decided, that a gift of interest until the legacy becomes due will not vest the principal, when

(m) Fearne, Cont. Rem. 555, note by Mr. Butler.

(n) 2 Ventr. 366. 1 Vern. 204, 321.

(0) Smith v. Smith, 2 Vern. 92. Yates v. Phettiplace, 2 Vern. 416. S. C. Prec. Chanc. 140. Reynish v. Martin, 3 Atk. 335. Jennings v. Looks, 2 P. Wms. 276. Duke of Chandos v. Talbot, 2 P. Wms. 610. Prowse v. Abingdon, 1 Atk. 485. Harrison v. Naylor, 3 Bro. C. C. 108. Parker v. Hodgson, 1 Dr. & Sm. 568, and the authorities cited in the arguments and judgment in that case. The rule is not

to be applied to legacies given out of moneys to arise from the sale of land , Re Hart's Trusts, 3 De G. & J. 195, nor to legacies given out of a mixed fund consisting of the proceeds of the sale of real estate directed to be sold, and pure personal estate. Lloyd v. Lloyd, 2 Sim. (N. S.) 255. Bellairs v. Bellairs, L. R. 18 Eq. 510, 517. The proceeds of realty and personalty directed to be applied to the same object are, it would seem, a mixed fund, to which the rules applicable to personalty apply. Genery v. Fitzgerald, Jac. 468.

a

the legacy is charged on land; but if the legatee dies before time of

; payment, the legacy is lost (p).

But a difference observable in the apparent motives for the postponement of legacies, has given rise to an extensive exception from this general rule respecting the vesting of legacies charged on land. Thus when a legacy is bequeathed to a child on its attaining twentyone, or marrying, or on any other event personal to him, the legacy is evidently postponed to the time specified, from its being considered that the legatee will then want the benefit of the legacy; whereas when the estate is devised to a person for life, and after his decease is charged with a legacy, the legacy is evidently postponed till the decease of the devisee for life, from its being incompatible with his life estate, that it should be raised in his lifetime.24 The payment of the legacy is therefore considered to be postponed, in the first case from regard to circumstances personal to the legatee; and in the second from regard to the circumstances of the estate ; and it has been inferred, that in cases of the first description, the testator does not intend the legatee shall receive the legacy, unless the circumstance happens on which the *testator made it payable ; and that in cases of the second description, the testator intends the legatee shall receive it at all events. In the former cases, therefore, it has been held, that if the legatee dies while the time of payment is in suspense, the

he says :

(p) Gawler v. Standewick,'1 Bro. C. C. 106, in a note to Green v. Pigot.

24. Where the legacy is a charge on the land, it may be added that “the true rule with respect to the vesting of legacies payable out of real estate is this : where the gift is immediate but the payment is postponed until the legatee, for instance, attains the age of twentyone years or marries, there it is contingent, and will fail if the legatee dies before the time of payment arrives ; but where the payment is postponed in regard to the convenience of the person and circumstances of the estate charged with the legacy, and not on account of the age, condition, or circumstances of the legatee, in such a case it will be vested and must be paid, although the legatee should die before the time of payment." McCoun, V.-C., in Marsh v. Wheeler, 2

Edw. 156. And, to the same effect, see the remarks of Judge Huston, in Donner's Appeal, 2 Watts & S. 372, where

· If the time of payment is postponed not because of the minority of the legatees, but for the benefit of the estate or of the devisee of the land, the legacy does not sink or merge in the land.” See too, Willis v. Roberts, 48 Me. 257; Birdsall 0. Hewlett, 1 Paige 32 ; Lyman v. Vanderspiegel, 1 Aiken, 275. Where the legacy is to be paid out of the proceeds of certain real estate at the expiration of a certain lease, it will not lapse on account of the death of the legatee before the expiration of the lease. Selby v. Morgan, 6 Munf. 156. And where the legacy is merely in confirmation of a prior parol gift, it will not lapse. Woods Woods, 2 Jones Eq. 420.

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