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As where the gift is to A. and B., “share and share alike (a), or “equally to be divided between them " (6), or “respec*tively” (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

(a) Heathe v. Heathe, 2 Atk. 122. See also Shepherdson v. Dale, 12 Jur. Norman 0. Fraser, 3 Hare, 84 ; or in N. S. 156. But a bequest, in case of equal shares : " Brown 0. Oakshott, the death of any one of several legatees 24 Beav. 254.

before his or her share shall become pay. (6) Bryan v. Twigg, L. R. 3 Eq. 433. able, “ to his or her children respectively,L. R. 3 Ch. 183. Where a testator gave is a gift to such children as joint tenants: one-fourth of his residuary estate to Re Hodgson's Trusts, 1 K. & J. 178. trustees, in trust for his wife for life, (d) Lashbrook 0. Cock, 4 Mer. 70. and, after her decease, in trust for and Richardson v. Richardson, 14 Sim. 526. to be equally divided amongst all his Att.-Gen. v. Fletcher, L. R. 13 Eq. 128. children who should be then living, A gift to two, “with benefit of surand the issue of such of them as should vivorship,” as to a moiety is a tenancy be then dead, such issue taking only the in common : Paterson v. Rolland, 28 part or share which his, her, or their Beav. 347. See also Haddelsey v. deceased parent or parents would have Adams, 22 Beav. 266. Ryves v. Ryves, been entitled to if living ; and two L. R. 11 Eq. 539. A gift of a residue children, and two grandchildren the to be equally disposed of between five issue of a deceased child of the testator, of the testator's children, whom he were living at the death of the widow ; named, is a gift to them as tenants in it was held that the two grandchildren common : In the Goods of Pile, 2 Sw. took, as between themselves, as joint & Tr. 628. further as to what are tenants, and not as tenants in common : words of severance, Armstrong o. ArmBridge v. Yates, 12 Sim. 645. See also strong, L. R. 7 Eq. 518. Re Wilford's Amies v. Skillern, 14 Sim. 428. Penny Estate, 11 C. D. 267. v. Clarke, 1 D. G. F. & J. 431, 432, per

(e) Robertson v. Fraser, L. R. 6 Ch. Turner, L. J., Leak v. M’Dowall, 32 696. Beav. 28. Lapphier v. Buck, 2 Dr. & (f) Woodgate v. Unwin, 4 Sim. 129. Sm. 484. Heasman v. Pearse, L. R. 11 This reason is ill-founded (see KenEq. 522. L. R. 7 Ch. 275. Hodges v. worthy 0.

Ward, 11 Hare, 196. Grant, L. R. 4 Eq. 140.

M'Gregor v. M'Gregor, 1 De G. F. & (C) Heathe v. Heathe, 2 Atk. 122. So J. 63). But the decision itself, may, it if there be a bequest to A. for life, with should seem, be supported on the ground remainder to B. C. and D., with a sub- that all joint tenants must take the same stitutional gift of their “respective quantity of interest, whereas in that shares,” in case of the death of any of case some of the co tenants might take them ; B. C. & D. take as tenants in vested, others contingent interests, ibid. common : Ive v. King, 16 Beav, 46. Where, however, there is a gift to A.

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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 (9). A considerable difficulty arises where words of severance are used

in the bequest, sufficient to constitute a case of tenancy Words vivorship: to what in common, accompanied by words of survivorship, inperiod they refer.

consistent with such a tenancy ; as if a residue be be. queathed 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).


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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.

(9) 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 0. Cook, 3 Drew. 662. Cranswick 0. Pearson, 31 Beav. 626. See also Ed. wardes v. Jones, 33 Beav. 348. Re White's Trusts, 1 Johns. 656. Re Phene's Trusts, L. R. 5 Eq. 346.

Appleton o. Rowley, L. R. 8 Eq. 139.
Bryan v. Twigg, L. R. 3 Ch. 183.

(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 in volved in an estate of joint tenancy. See also Haddelsey v. Adams, 22 Beav, 266.

(i) 4 Madd. 15.

(k) This rule, though certainly opposed to several previous cases, and regarded by very high authority (see the judgments of Lord Cottenbam, in Pearson o. Casamajor, 1 Maclean & Rob. App. Cases, 714, and in Wordsworth 0. 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

*But although the rule in Cripps v. Wolcott is conformable to reason and common sense, yet a testator is not bound to adopt that

recognized and acted upon, and is now fully established : See Dorville v. Wolff, 15 Sim. 510. Davies v. Thorne, 3 De G. & Sm. 347. Neathway v. Reed, 3 De G. M. & G. 18. Spurrell v. Spurrell, 11 Hare, 54. Huffam v. Hubbard, 16 Beav. 579. McDonald 0. Bryce, ibid. 581. Carver v. Burgess, 18 Beav. 541 ; affirmed, 7 De G. M. & G. 96. Stevenson o. Gullan, 18 Beav. 590. Re Pritchard's Trust, 3 Drew. 163. Littlejohns v. Household, 21 Beav. 29. Howard o. Howard, ibid. 550. Hind 0. Selby, 22 Beav. 373. Lill v. Lill, 23 Beav. 446. Cambridge v. Rous, 25 Beav. 415. Nevill v. Buddam, 28 Beav. 554. Hearn v. Baker, 2 K. &. J. 383. Vorley o. Richardson, 8 De G. M. & G. 126. Crawhall's Trusts, ibid. 480. Knight v. Poole, 32 Beav. 548. Drakeford v. Drakeford, 33 Beav. 43. Blackmore v. Snee, 1 De G. & J. 454. Taaffe 0. Conmee, 10 H. L. C. 64. Lewis 0. Templer, 33 Beav. 625. See also Gibbs 0. Tait, 8 Sim. 132. Taylor v. Beverley, 1 Coll. 108. Watson t. England, 15 Sim. 1. Turing v. Turing, 15 Sim. 139. Belt o. Slack, 1 Keen, 238. Eaton 0. Barker, 2 Coll. 124. Wagstaff v. Crosby, 2 Coll. 746. Corneck 0. Wadman, L. R. 7 Eq. 80. Marriott v. Abell, L. R. 7 Eq. 478. But although, according to the doctrine of "Cripps v. Wolcott, survivorship is to be referred to the period of distribution, that is, where the gift is immediate to the death of the testator, so as to make it merely a provision against lapse, yet the doctrine will not apply if the words of the will show that the survivorship is to be referred to a period other than that of distribution. Thus in Bowers 0. Bowers, L. R. 5 Ch. 244, the Court of Appeal, reversing the decision of Malins, V.-C., held where there was an

immediate gift to four residuary legatees and devisees in equal shares, with benefit of survivorship in case any of them should die without issue, and in case any of them should die leaving children, then the shares whether original or accruing of each so dying to go to such children, that the clause of survivorship and the limitation over to the children of the legatees were not confined to the lifetime of the testator, and intended merely to guard against lapse, and that the residuary legatees did not upon surviving the testator at once acquire indefeasible interests in their shares : and Lord Hatherley in his judgment repeated a disapprovat which he had previously expressed (in Cooper v. Cooper, 1 K. & J. 658) of the doctrine laid down in Clayton v. Low, 5 B. & Ald. 656, that where a testator mentions all the contingencies, so that the first taker must die under some one or other of the circumstances mentioned, you are to add them together so as to make a certainty, and then treat the case as if the gift over were simply in case he shall happen to die and restrict the happening of that event to the testator's lifetime in order to satisfy the words importing contingency. Nor does the case of Home v. Pillans, 2 M. & K. 15, decide that indefeasible vesting is not without absolute necessity to be suspended beyond the period of distribution ; for though the court no doubt leans to that construction, yet it cannot on that ground depart from the plain natural meaning of the words which the testator has used. See Corneck v. Wadman, L. R. 7 Eq. 80, in which case the words “with benefit of survivorship" were held to refer to the period when the shares of the children became absolutely vested and not to the time of


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mode of disposing of his property; and if he express a different intention according to the natural import of the words of his will, the court must carry that intention into effect (?).

*It may here be mentioned, that the word “surviving” has been Survivor

construed “other,” to give effect to the apparent intenstrued "other."

tion (m). Thus where a fund is given between a class or number of persons as tenants in common for life, with interests in the nature of remainders to their children respectively, and a valid provision is made that in the event of the death and failure of issue of any of the original takers, the share of the original taker or takers so circumstanced shall go to the survivors or survivor of them, the words “survivors or survivor” may, if the scheme of the will requires it, be considered as an expression of contrast used for the purpose of distinguishing the takers not so circumstanced, and therefore as meaning “others or other” (n): *But the word “survivor” must receive its payment; and Marriott v. Abell, ibid. See Bouverie v. Bouverie, 2 Phill. Ch. 478. The rule was formerly thought C. 349. Tribe o. Newland, 5 D. G. M. to be otherwise as to real estate ; it be- & G. 236. Knight 0. Knight, 25 ing considered that indefinite words Beav. 111. Evans c. Evans, ubi supra. of survivorship should be referred to Berry v. Briant, 2 Dr. & Sm. 1. So the death of the testator, but it has where there was a gift for life followed been expressly decided by the Lords by a gift to the surviving children of Justices that the rule applies to real as B. & C., or their heirs and assigns, it well as personal estate : Re Gregson's was held that the rule did not apply, Estate, 2 De G. J. & Sm. 428, overrul- and that the period of survivorship was ing Doe v. Prigg, 8 B. & C. 231. As to the death of the testator: Re Hopkins' the period to which the word “then” Trusts, 2 Hemm. & M. 411. But it is to be referred, in a bequest to a class must be taken as the deliberate doctrine of persons “ then living," see Archer v. of the court to apply the rule in every Jegon, 8 Sim. 446. Gaskell v. Holmes, case where no very cogent reasons mili. 3 Hare, 438. 1 Jarm. 851, note (m), 4th tate against such a construction, ibid. edition, and the cases there cited. Re 414. Eggington's Trusts, 3 Drewr. 202. (m) See ante, p. *937, note (1), where Olney o. Bates, ibid. 319. Ante, p. *987, other cases on this subject are set out. note (u). Heasman v. Pearse, L. R. 11 (n) The case of Lucena o. Lucena, 7 Eq. 522, 7 Ch. 660.

C. D. 255, seems to establish the follow. (1) White v. Baker, 2 De G. F. & ing propositions : (i.) That where there J. 55. Wilmot v. Flewitt, 11 Jur. N. is a gift to childen in shares, and a gift S. 820. Evans o. Evans, 25 Beav. 81. over to the surviving children of the Thus the rule may not be applicable share or shares of those dying without where the question is as to the effect of issue, coupled with a gift over in the words referring to survivorship in di- case of all the children dying without vesting a vested interest, especially in issue, the word “surviving” will, in instances of gifts to children after the the absence of anything in the will determination of a previous life estate : to show a contrary intention, be con

natural construction, and not be read as meaning "other,” unless the nature *of the disposition itself, or the context of the will, renders a

strued “other.” (ii.) That this con- their respective lives ; there was an acstruction will obtain even though some crual clause and an ultimate gift over of the shares are settled and some not. in the event of the death of all the chil(iii.) That, if all the shares are settled, dren without issue: and the stirpital the word “surviving" may be con- construction of the accrual clause was strued not as “others,” but as meaning adopted in favor of the issue of a child those who survive actually in person, of the testator, although that child preor figuratively in issue, taking an inter- deceased the last survivor of the three est under the will; but that, if some children. In Beckwith v. Beckwith, shares are settled and some are not, 46 L. J. Ch. 98, where the will was very this construction is not admissible. In similar but there was no ultimate gift the absence of a gift over in the event

over in the event of the death of all the of the death of all the children of the children, the court construed “surviv. testator taking shares under the will, or” strictly, and refused to adopt the the fact that the original shares are all stirpital construction. The importance settled by the will, and that the accru- of the gift over on failure of issue of ing shares which the survivors take in all the objects as justifying the conthe share of a child who dies without struction of "surviving” or survive issue are settled in the same way as the ors” otherwise than literally, is dwelt original shares, is not by itself sufficient on by Kay, J., in his judgment in Re to show that the word “survivors” is Bowman, 41 C. D. 525, 531, where he used otherwise than in its proper sense. says that the decisions seem to him to Re Benn, 29 C. D. 839. There are establish the following propositions : cases which seem to support the conten- (1.) Where the gift is to A., B., and C., tion that a settlement of shares without equally for their respective lives, and an ultimate gift over is sufficient, but it after the death of any to his chilhas never been decided that it is so, dren, but if any die without children to and none of the latter cases tend to the survivors for life with remainder to recognize it as by itself sufficient, per their children, only children of survivors Cotton, L. J., ibid. It will be observed can take under the gift over. See Re that in Waite 0. Littlewood, L. R. 8 Horner's Estate, 19 C. D. 186. Re Ch. 70, the case in which Lord Selborne Benn, 29 C. D. 839. (2.) If to similar first suggested what may be called the words there is added a limitation over, stirpital construction of the word “sur- if all the tenants for life die without viving” or “survivors,” there was an children, then the children of a predeultimate gift over in the event of the ceased tenant for life participate in the death of all the children.

Wake 0. share of one who dies without children Varah, 2 C. D. 348, is another instance after their parent. See Waite o. Littlewhere the ultimate gift over on the wood, L. R. 8 Ch. 70. Wake v. Varah, death of all the children of the testa- 2 C. D. 348. Badger 0. Gregory, L. tor without issue led to the word

R. 8 Eq. 78. (3.) They also participate, vivor,” in a clause of accruer, being although there is no general gift over, construed “other.” In that case the where the limitations are to A., B., and testator left the residue of his estate in C., equally for their respective lives and equal shares to his three children for after the death of any to his children,


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