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departure necessary to effectuate the apparent intention of the testator (o). In Barber v. Barber (p), a testator by his will directed, that in the
event of the death of his son and daughter under *twentySurvivorship in case of a gift as one, the property bequeathed to them should devolve
on and become the property of four persons, each particularly named and described, to be divided betwixt them in equal proportions, and to their heirs forever ; which last mentioned four persons he appointed executors, and he afterward appointed two other executors : One of the four persons, and also both of the after appointed executors, renounced probate, and declined to act : It was not disputed that the bequest made to these four persons was made to them as executors : that is, on condition that they took upon themselves that office, and consequently, that the one who had renounced could not claim his share (9): But on the one hand, it was insisted that his share was a lapsed legacy, and went to the next of kin of the testator ; while, on the other hand, the three other persons named as residuary legatees with him who had renounced, contended that they were entitled to the residue in thirds, including, therefore, the share destined for him : Lord Cottenham decided that they were not so entitled, but that the share had become undisposed of, and belonged to the next of kin : And his lordship, in giving judgment, made the following observations :
to a class.
and if any die without children to the surviving tenants for life and their respective children, in the same manner as their original shares. See Hodge v. Foot, 34 Beav. 349. Re Walker's Estate, 12 C. D. 205. It will be seen from the above propositions that the learned judge does not consider a general gift over on the extinction of the class an absolute sine qua non. It will be remembered, as is pointed out in this judgment, that although there may be older decisions which seem to show that “survivors ” may easily be construed
others,” yet the tendency of modern decisions is to adhere as closely as may be to a literal construction, and only in cases of ambiguity to adopt that possible meaning of words, which is most in conformity with the general scheme of the will, and avoid the consequence which the testator can hardly have deliberately intended. So again, in the recent case of King v. Frost, 15 A. C. 548, Lord Macnaghten says that the construction of the words “survivors and survivor” as “ others or other” is not to be adopted, unless it is required to carry out an intention apparent on the face of the will which would otherwise remain unfulfilled. It will be observed in that case it was sought as an alternative construction to construe “survivor" as " longest liver,” and to say that the “ longest liver” dying without issue, took under the accruer clause the share which had been given to him for life with remainder to his children
in tail, on his own death as the survivor. This construction was based on decisions of Jessel, M. R., in Madan o. Taylor, 45 L. J. Ch. 539, of Fry, J., in Davidson v. Kimpton, 18 C. D. 213, and of Chitty, J., in Re Roper's Estate, 41 C. D. 409, but Lord Macnaghten refused to adopt this construction whereby the longest liver as survivor would on his own death without issue take indefeasibly the share originally intended for him and his children. The view adopted by Lord Macnaghten adverse to the decisions in the above cases seems to have been the view adopted by Kay, J., in Re Mortimer, 54 L. J. Ch. 414, and North, J., in Askew v. Askew, 57 L. J. Ch. 629, subsequently to the decision of Jessel, M. R., and also the view adopted by Sir W. Page Wood in Re Corbett's Trusts, Johns. 591, prior to that decision.
(0) Crowder 0. Stone, 3 Russ. 217. Cromek 0. Lumb, 3 Y. & Coll. 565. Leeming v. Sherratt, 2 Hare, 14. Smith v. Osborne, 6 H. L. C. 375, 393. Re Horner's Estate, 19 C. D. 186. Re Benn, 29 C. D. 839. “Survivors ” has never been read “others " when the gift over is to a separate and distinct class : De Garagnol v. Liardet, 32 Beav. 608. When the word "survivor " is applied to a class of persons and individuals of that class are named, its natural meaning is “the longest liver of those who are named : " Taaffe o. Conmee, 10 H. L. C. 64.
(P) 3 My. & Cr. 688.
“The question to be decided is, who are the legatees? It is quite clear that, if the legatees had not been appointed executors the gift to them would have created a tenancy in common, and therefore, that, upon the failure of the gift to any one, his share would have been undisposed of, and that the three others could not have claimed. And it is equally clear that, if any other condition had been imposed upon these four tenants in common, upon which their title to the legacy was to depend, and one had refused to perform the condition, his share would have been undisposed of, and that the other three could not have claimed it. The ground upon which the title of the executors who proved is rested, leaves these propositions untouched : for it stands upon this ground, that the gift is to a class, and that the three executors who proved constituted the class : and it was contended that *there was no distinction between a gift to executors as tenants in common, and a gift to certain persons as tenants in common who are afterward appointed executors.
“This, as all other questions of construction, must depend upon the intention. A gift to a class implies an intention to benefit those who constitute the class, and to exclude all others; but a gift to individuals described by their several names and descriptions, though they may together constitute a class, implies an intention to benefit the individuals named. In a gift to a class you look to the description, and inquire what individuals answer to it; and those who do answer to it are the legatees described. But if the parties to whom the legacy is given be not described as a class, but by their individual names and
(9) See ante, p. *1147.
additions, though together constituting a class, those who may con. stitute the class at any particular time may not, in any respect, correspond with the description of the individuals named as legatees. If a testator give a legacy to be divided amongst the children of A. at a particular time, those who constitute the class at the time will take; but if the legacy be given to B., C., and D., children of A., as tenants in common, and one die before the testator, the survivors will not take the share of the deceased child. The question must be, was the intention to bequeath to those who might at the time constitute the class, or to certain individuals, who, it was supposed, would constitute it ? Such would appear to be the question to be asked, and the point to be ascertained : but the more important inquiry is, whether the authorities justify and support this view of the case.
“In Page v. Page (r), decided by Lord King in 1728, and approved by Lord Talbot in 1734, there was the gift of a residue to six persons, to each one-sixth ; and they were appointed executors : It was held that the one-sixth of one who died in the lifetime of the testator lapsed for the next of kin. In this case there is a gift to four equally, to be divided betwixt them, i. e. to each one-fourth. In Owen v. Owen (s), *the testator gave the residue of his estate to his two nieces, to be equally divided between them, and appointed them executrixes : One died in the testator's lifetime : And Lord Hardwicke said that he had followed Page v. Page in Holderness v. Reyner; and that the reasoning of Sir J. Jekyll, in Hunt v. Berkley (1), could not be supported ; and held that the share intended for the deceased niece lapsed for the benefit of the next of kin, and did not go to the surviving niece.
“In Knight v. Gould (u), the gift was of the residue 'to my executors hereinafter named, to pay my debts, legacies, &c., and also to recompense them for their trouble, equally between them ;' and three persons were then named executors, one of whom died in the testator's lifetime : And Sir John Leach first, and Lord Brougham, upon appeal, held, that the two survivors were entitled to the whole : The latter relied upon two grounds principally ; first, that the persons to take were those who were to perform the duties, and the survivors were such persons; secondly, that the gift was to the executors as a class in terms ; for the words “hereinafter named 'were mere surplusage, inasmuch as the result would have been the same if they had been
(r) 2 P. Wms. 489. Ante, p. *1326. (t) Mosely, 47. S. C. 1 Eq. Abr. 243. (8) 1 Atk. 494. Ante, p. *1080.
(u) 2 Mylne & Keen, 295. See ante,
omitted, it being absolutely necessary to name them in order to appoint them. In that case the gift was to executors described as such, in this it is to individuals particularly named and described. In that, the fund given was what should remain after part had been administered. Those who were to take and those who were to administer were considered as identical.
“The result, therefore, of the authorities, supposing them strictly to apply, is in favor of the claim of the next of kin. There is the case of Page v. Page, decided by Lord King and approved by Lord Talbot, and in two cases approved and acted upon by Lord Hardwicke ; whereas, in support of the claim of the acting executors, there is only the case of Hunt v. Berkley, decided, indeed, by a high authority, Sir *Joseph Jekyll, but disapproved by Lord Hardwicke, and overruled by every subsequent case in which the point has arisen. It is also to be observed that the case of Hunt v. Berkley would not, if it were clearly a right decision, necessarily govern the present case ; because, in that case, the residuary legatees and the executors were the same, and the decision must have proceeded upon this, that the testator did, in fact, intend to give the residue to whomsoever of the parties named might be his executors. But it is clear that, if Page v. Page, Holder
Reyner, and Owen v. Owen, be right, they necessarily include the present case ; the claims of the next of kin being much stronger in this case than in any of those : inasmuch as, in all those cases, those named residuary legatees and executors were the same ; so that the question might arise, whether the intention was to give the residue to the individuals, or to the class which they composed : whereas, in the present case, the residuary legatees do not constitute any class to which a name can be given, without including the description of residuary legatees. If the three surviving executors to whom the share of the residue was given are entitled, they must be so entitled as constituting the class intended to be benefited : but what is the class which they so constitute ? Not the executors ; because there were two other executors named besides the persons intended to be so benefited ; and although the two others also declined to prove, so that the three, in fact, are the only acting executors, yet the class of executors, as contemplated by the testator, consisted of six ; and there was clearly no intention to give the benefit to such of the six as might act as executors, for that might have given the benefit to the two. This case, therefore, has nothing in common with Knight v. Gould, or any other case in which the gift has been construed to be in favor of such as might act as executors. If, then, the class intended to take be not
such as might, at the time, be the executors, it must be such of the executors named as might, at the time, be also of the number of the residuary legatees named ; but that is only *another mode of describing the residuary legatees; and, if their situation as residuary legatees be considered, they are only tenants in common of the residue, between whom there can be no survivorship.
“There seems also to be some confusion in terms in considering legatees as constituting, as such, a class for the purpose in question. They have no existence as a class, except under the description in the Will. To such persons a testator may undoubtedly give a right of survivorship inter se, by expressly directing it, or by creating a joint tenancy. The first the testator in this case has not done, and the second he has, in terms, excluded, by creating a tenancy in common; and he could not have intended that those who proved should take the whole in the event of some not proving, and not in the event of their dying before him. To effectuate a gift to those of the class he has himself constituted, who may be in a condition to take at a particular time, he must have used expressions from which that intention may be fairly deduced. Such an intention cannot be deduced from a gift to four persons by name, between whom the share of the residue is to be divided” («). It must here be observed, that where co-executors take a residue in
that character, they take as joint tenants : Therefore if
one of them dies after the death of the testator, but residue : before the severance of the joint tenancy in the residue, his share will survive to his co-executors, and his own executors or administrators will be excluded, as well as the next of kin of the testator (y). Thus, in Baldwyn v. Johnson (2), where *two executors divided a part of the testator's property, but lodged a sum in the funds for securing the payment of an annuity; it was holden, that as to this they were joint tenants, and that it should survive upon the death of one to the other (a). So in Griffiths v.
(2) See also Re Gibson, 2 Johns. & class as shall be living at the death of H. 656, and the dictum of Wood, V.-C., the testator. Habergham v. Ridehalgh, as to the case of Knight 0. Gould, ante, L. R. 9 Eq. 395, 400. p. *1083, note (d). See also ibid., and (y) Frewen v. Relfe, 2 Bro. C. C. 220. ante, p. *1081, note (u), where the cases White 0. Williams, 3 V. & B. 72. are collected as to what is a gift to a S. C. Cooper, 58. See also the judg. class. See further Gould v. Kemp, post, ment of Lord Brougham, in Knight o. p. *1310, and Re Colley's Trusts, L. R. Gould, 2 M. & K. 299–303. 1 Eq. 496. Where there is a gift to a (2) 3 Bro. C. C. 455. class, that means a gift to such of the (a) But in Partridge v. Pawlet, 1 Atk.
In case of several executors entitled as such to the