tion to give to the survivor a larger proportion (j). So where a testator gave one-third of the residue to A., and another one-third to B., and as to the other one-third thereof, gave 500l. to C., and the remainder thereof to D.; and C. died in the lifetime of the testator; it was held that the 5007. belonged to the next of kin, as undisposed of (k). Again, the testator may, by the terms of the bequest, narrow the title of the residuary legatee, so as to exclude *him from lapsed legacies: As where it appears to be the intention of the testator that the residuary legatee should have only what remained after the payment of legacies (1). of residuary leg Again, the testator may, by the terms of the will, so circumscribe and confine the residue, as that the residuary legatee, atee partially. instead of being a general legatee, shall be a specific legatee, and then he shall not be entitled to any benefit accruing from lapses, unless what shall have lapsed constitute a part of the particular residue (m). Thus, in Cook v. Oakley (n), A., on board a ship, made his will, and gave to his mother, if alive, his gold rings, buttons, and chests of clothes, and to his executor, who was on board with him, his red box, arrack, and all things not before bequeathed; and at the time of making his will he was entitled to a considerable leasehold estate by the death of his father, of his right to which he 26. Wildbore v. Gregory, L. R. 12 Eq. 482. Re Teape's Trusts, L. R. 16 Eq. 442. Thornton v. Thornton, L. R. 20 Eq. 599. Re Meredith's Trusts, 3 C. D. 757. Ames v. Cadogan, 12 C. D. 868. Re Swinburne, 27 C. D. 696. Von Brockdorff v. Malcolm, 30 C. D. 172. Re Wait, 30 C. D. 617. Re Hunt's Trusts, 31 C. D. 308. Re Mills, 34 C. D. 186. Re Cotton, 40 C. D. 41. Re Williams, 42 C. D. 93. (j) Easum v. Appleford, 5 M. & Cr. 56, 62. (k) Lloyd v. Lloyd, 4 Beav. 231. See also Accord. Skrymsher v. Northcote, 1 Swanst. 566. Harris v. Davis, 1 Coll. 416. See further Master v. Laprimaudaye, 2 Coll. 443. Clowes v. Clowes, 9 Sim. 403. See also Accord. Lightfoot v. Burstall, 1 Hemm. & M. 546, where there was a direction that one of the shares of the residue on a certain contingency should sink into the residue, and be held and applied accordingly. See also Humble v. Shore, ibid. 550, note (a). 7 Hare, 247. Sykes v. Sykes, L. R. 3 Ch. 301. Re Barker's Estate, 15 C. D. 635. In the cases, however, of Crawshaw v. Crawshaw, 14 C. D. 817, and Re Rhoades, 29 C. D. 142, where in a will there was a direction that the respective shares should "fall into the residue," it was held that they were not undisposed of by the testator, but were divisible among the other lega tees. (1) Davers v. Dewes, 3 P. Wms. 40. Atty. Gen. v. Johnstone, Ambl. 577. Gibson v. Hale, 17 Sim. 129. It was said by Lord Eldon, in Bland v. Lamb, 2 Jac. & Walk. 406, that very special words are required to take a bequest of the residue out of the general rule. (m) Toller, 343. (n) 1 P. Wms. 302. 809 was ignorant: It was holden, that A.'s executor was legatee of a particular residue, namely, of what the testator had on board the ship; and such legacy excluded him from the general residue: But that as A.'s mother died in his lifetime, his rings, buttons, and chests of clothes lapsed into such particular residue, and devolved on his executor, not as executor, but as legatee of such particular residue (o). And even though the word "residue " be employed by the testator, yet if it appears, on the construction of the whole will, that he meant to use it in a more restricted sense than that of its large and general sense, comprehending whatever of his personal estates in the events which happen turns out to be undisposed of, the court is bound to construe it in such restricted sense (p). Survivorship as to in cases of several *Where the residuary estate is bequeathed to several persons in joint tenancy, if one or more of them happen to die in the lifetime of the testator, or after his death, but residue: before the severance of the joint tenancy (9) in the residue, their shares will survive to the others (r).† But if the residue be given to several as tenants in common, the shares of the deceased shall not go to the survivors, but shall devolve residuary legon the testator's next of kin, according to the Statute of Distributions, as so much of the personal estate remaining undisposed of by the will, in case the death happened in the lifetime of the testator; or shall go to the personal representatives of the deceased legatee, in case his death took place after that of the testator (s). atees: joint tenants: In Perkins v. Baynton (t), indeed, Lord Thurlow doubted whether there could be a joint tenancy of a money legacy, and said that there was no case of a residue given to persons, not executors, where they have been considered as joint tenants. But in Crooke v. De Vandes (u), Lord Eldon stated, that upon the doubt thus expressed by Lord Thurlow, he, at the time looked at some of the original wills in Doctors' Commons, where a construction had (0) See also 2 Rop. Leg. 589, 3rd edit. De Trafford v. Tempest, 21 Beav. 564. (p) Green v. Pertwee, 5 Hare, 249. S. C. sub nom. Greer v. Pertwee, 15 L. J. Ch. 372. Jull v. Jacobs, 3 C. D. 703, 705. (9) As to what amounts to a severance, see post, p. *1340. (r) Webster v. Webster, 2 P. Wms. 347. Ante, p. *1080. + See American note at end of this Section. (8) Bagwell v. Dry, 1 P. Wms. 700. Page v. Page, 2 P. Wms. 489. Painter v. Salisbury, cited in Bennet v. Bachelor, 1 Ves. 67. Peat v. Chapman, 1 Ves. Sen. 542. Ante, pp. *1080, *1322. (t) 1 Bro. C. C. 118. [*1326] been put on them, and he made up his mind upon the point, upon which he had never had any doubt since, that a simple bequest of a legacy or a residue of personal property to A. & B., without more, is a joint tenancy; and it is upon the other side to show from some part of the context applying to that bequest, that the words are not to have their legal operation (x). Again, *in Jackson v. Jackson (y), the same learned judge observed, that it is clear that where a residue of a personal estate, consisting of a great variety of particulars, is left to two persons, their executors, administrators, and assigns, the effect is a joint tenancy (z). But where a money legacy or a residue is given to more persons tenants in com- than one, by any mode of expression which denotes a severance, the legatees will be tenants in common:† mon. (x) So a joint tenancy is created by a bequest, without any words of severance to " children: " Mence v. Bagster, sur 4 De G. & Sm. 162. Williams v. Hens- (y) 9 Ves. 595. (2) See also Swaine v. Burton, 15 Ves. 370, 371. Cookson v. Bingham, 17 Beav. 262. Morgan v. Britten, L. R. 13 Eq. 28. Before the Married Women's Property Act, 1882, where a bequest was made to a husband and wife, a kind of joint tenancy was created called a tenancy by entireties, that is to say, the husband and wife were treated as one person in law, and, as against other legatees of shares took only one share between them, and the wife had no equity to a settlement out of that share: Atcheson v. Atcheson, 11 Beav. 485. Alder. Lawless, 32 Beav. 72. Ward v. Ward, 14 C. D. 506. Re Bryan, 14 C. D. 516. Since the act the husband and wife each take one-half of the joint share, but the tenancy still remains, notwithstanding the statute, a tenancy by entireties, that is to say, the husband and wife are treated as one person, and only take one share. Re March, 27 C. D. 166. Re Jupp, 39 C. D. 148. A slight indication that the husband and wife shall each take a separate share, is sufficient to prevent the application of the doctrine that they take one share between them. Dias v. De Livera, 5 A. C. 123. Re Dixon, 42 C. D. 306. See ante, p. *961. + See American note at end of this Section. As where the gift is to A. and B., "share and share alike" (a), or "equally to be divided between them " (b), or "respectively" (c), or "between them" (d), or "participate" (e). Again, where there is a bequest to A. for life, and after her decease to her children, when they arrive at the age of twenty-one years, the children who attain twenty-one will necessarily take as tenants in common, though there are no words of severance used in the bequest; because it has been said, it is contrary to the rule of law that persons, who are to take at different times, can take as joint tenants (f). *Where, how (b) Bryan v. Twigg, L. R. 3 Eq. 433. L. R. 3 Ch. 183. Where a testator gave one-fourth of his residuary estate to trustees, in trust for his wife for life, and, after her decease, in trust for and to be equally divided amongst all his children who should be then living, and the issue of such of them as should be then dead, such issue taking only the part or share which his, her, or their deceased parent or parents would have been entitled to if living; and two children, and two grandchildren the issue of a deceased child of the testator, were living at the death of the widow; it was held that the two grandchildren took, as between themselves, as joint tenants, and not as tenants in common: Bridge v. Yates, 12 Sim. 645. See also Amies v. Skillern, 14 Sim. 428. Penny v. Clarke, 1 D. G. F. & J. 431, 432, per Turner, L. J., Leak v. M'Dowall, 32 Beav. 28. Lanphier v. Buck, 2 Dr. & Sm. 484. Heasman v. Pearse, L. R. 11 Eq. 522. L. R. 7 Ch. 275. Hodges v. Grant, L. R. 4 Eq. 140. (c) Heathe v. Heathe, 2 Atk. 122. So if there be a bequest to A. for life, with remainder to B. C. and D., with a substitutional gift of their "respective shares," in case of the death of any of them; B. C. & D. take as tenants in common: Ive v. King, 16 Beav. 46. See also Shepherdson v. Dale, 12 Jur. N. S. 156. But a bequest, in case of the death of any one of several legatees before his or her share shall become pay. able," to his or her children respectively," is a gift to such children as joint tenants: Re Hodgson's Trusts, 1 K. & J. 178. (d) Lashbrook v. Cock, 4 Mer. 70. Richardson v. Richardson, 14 Sim. 526. Att.-Gen. v. Fletcher, L. R. 13 Eq. 128. A gift to two, "with benefit of survivorship," as to a moiety is a tenancy in common: Paterson v. Rolland, 28 Beav. 347. See also Haddelsey v. Adams, 22 Beav. 266. Ryves v. Ryves, L. R. 11 Eq. 539. A gift of a residue to be equally disposed of between five of the testator's children, whom he named, is a gift to them as tenants in common: In the Goods of Pile, 2 Sw. & Tr. 628. See further as to what are words of severance, Armstrong v. Armstrong, L. R. 7 Eq. 518. Re Wilford's Estate, 11 C. D. 267. (e) Robertson v. Fraser, L. R. 6 Ch. 696. (f) Woodgate v. Unwin, 4 Sim. 129. This reason is ill-founded (see Kenworthy . Ward, 11 Hare, 196. M'Gregor v. M'Gregor, 1 De G. F. & J. 63). But the decision itself, may, it should seem, be supported on the ground that all joint tenants must take the same quantity of interest, whereas in that case some of the co-tenants might take vested, others contingent interests, ibid. Where, however, there is a gift to A. [*1328] [*1329] ever, words which, according to the ordinary rule, constitute a tenancy in common, are combined with, or followed by, others which would make a tenancy in common inconsistent with the manifest design or the subsequent bequest of the testator, they may be taken to indicate, not the nature, but the proportion of the interest each party is to take: As where there is a bequest to two persons "respectively in equal shares" of the interest and dividends only of the residue of the testator's estate, and the corpus of the residue is not to be divided or possessed until after the decease of the two, and then it is to be divided amongst such of their children only as shall be living at the death of the survivor, per capita and not per stirpes (g). Words of sur A considerable difficulty arises where words of severance are used in the bequest, sufficient to constitute a case of tenancy vivorship:to what in common, accompanied by words of survivorship, inperiod they refer. consistent with such a tenancy; as if a residue be bequeathed to two or more equally to be divided between them, and the survivors or survivor of them (h). In Cripps v. Wolcott (i), Sir J. Leach, V.-C., said, that he considered it now settled, that in the case of such a bequest, if there be no special intent to be found in the will, the survivorship is to be referred to the period of division: And that if no *previous interest be given in the legacy, then the period of division is the death of the testator, and the survivors at his death will take the whole legacy: But, if a previous life estate be given, then the period of division is the death of tenant for life, and the survivors at such death will take the whole legacy (k). for life, and afterward to his children, and the vesting of their shares is not made contingent on attaining twentyone, they take as joint tenants, notwithstanding they came into esse at different periods Ruck v. Barwise, 2 Dr. & Sm. 510. (g) Pearce v. Edmeades, 3 Y. & C. 246. See also Currie v. Gould, 4 Beav. 117. McDermott v. Wallace, 5 Beav. 142. Vanderplank v. King, 3 Hare, 1. Doe v. Royle, 13 Q. B. 100. Abrey v. Newman, 16 Beav. 431. Begley v. Cook, 3 Drew. 662. Cranswick v. Pearson, 31 Beav. 626. See also Edwardes v. Jones, 33 Beav. 348. Re White's Trusts, 1 Johns. 656. Re Phené's Trusts, L. R. 5 Eq. 346. Appleton v. Rowley, L. R. 8 Eq. 139. (h) See Taaffe v. Conmee, 10 H. L. C. 64, 78, as to the validity of such a limitation, and the distinction between such a survivorship, and that involved in an estate of joint tenancy. See also Haddelsey v. Adams, 22 Beav. 266. (i) 4 Madd. 15. (k) This rule, though certainly op posed to several previous cases, and regarded by very high authority (see the judgments of Lord Cottenham, in Pearson v. Casamajor, 1 Maclean & Rob. App. Cases, 714, and in Wordsworth v. Wood, 4 M. & Cr. 645, and of Lord Campbell, S. C. in Dom. Proc. 1 H. L. C. 156) as not settled, has been frequently |