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 v. Bryce, ibid. 581. Carver v. Burgess, 18 Beav. 541; affirmed, 7 De G. M. & G. 96. Stevenson v. Gullan, 18 Beav. 590. Re Pritchard's Trust, 3 Drew. 163. Littlejohns v. Household, 21 Beav. 29. Howard v. Howard, ibid. 550. Hind v. Selby, 22 Beav. 373. Lill v. Lill, 23 Beav. 446. Cambridge v. Rous, 25 Beav. 415. Nevill v. Boddam, 28 Beav.

Drake

BlackTaaffe

554. Hearn v. Baker, 2 K. &. J. 383. Vorley v. Richardson, 8 De G. M. & G. 126. Crawhall's Trusts, ibid. 480. Knight v. Poole, 32 Beav. 548. ford v. Drakeford, 33 Beav. 43. more v. Snee, 1 De G. & J. 454. v. Conmee, 10 H. L. C. 64. Lewis v. Templer, 33 Beav. 625. See also Gibbs v. Tait, 8 Sim. 132. Taylor v. Beverley, 1 Coll. 108. Watson v. England, 15 Sim. 1. Turing v. Turing, 15 Sim. 139. Belt . Slack, 1 Keen, 238. Eaton v. Barker, 2 Coll. 124. Wagstaff v. Crosby, 2 Coll. 746. Corneck v. 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 v. 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 disapproval 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 [*1331]

con

Survivor strued "other."

payment; and Marriott v. Abell, ibid. 478. The rule was formerly thought to be otherwise as to real estate; it being considered that indefinite words of survivorship should be referred to the death of the testator, but it has been expressly decided by the Lords Justices that the rule applies to real as well as personal estate: Re Gregson's Estate, 2 De G. J. & Sm. 428, overruling Doe v. Prigg, 8 B. & C. 231. As to the period to which the word "then" is to be referred, in a bequest to a class of persons" then living," see Archer v. Jegon, 8 Sim. 446. Gaskell v. Holmes, 3 Hare, 438. 1 Jarm. 851, note (m), 4th edition, and the cases there cited. Re Eggington's Trusts, 3 Drewr. 202. Olney v. Bates, ibid. 319. Ante, p. *987, note (u). Heasman v. Pearse, L. R. 11 Eq. 522, 7 Ch. 660.

(1) White v. Baker, 2 De G. F. & J. 55. Wilmot v. Flewitt, 11 Jur. N. S. 820. Evans v. Evans, 25 Beav. 81. Thus the rule may not be applicable where the question is as to the effect of words referring to survivorship in divesting a vested interest, especially in instances of gifts to children after the determination of a previous life estate:

See Bouverie v. Bouverie, 2 Phill. Ch. C. 349. Tribe v. Newland, 5 D. G. M. & G. 236. Knight. Knight, 25 Beav. 111. Evans v. Evans, ubi supra. Berry v. Briant, 2 Dr. & Sm. 1. So where there was a gift for life followed by a gift to the surviving children of B. & C., or their heirs and assigns, it was held that the rule did not apply, and that the period of survivorship was the death of the testator: Re Hopkins' Trusts, 2 Hemm. & M. 411. But it must be taken as the deliberate doctrine of the court to apply the rule in every case where no very cogent reasons militate against such a construction, ibid. 414.

(m) See ante, p. *937, note (t), where other cases on this subject are set out.

(n) The case of Lucena v. Lucena, 7 C. D. 255, seems to establish the following propositions: (i.) That where there is a gift to childen in shares, and a gift over to the surviving children of the share or shares of those dying without issue, coupled with a gift over in the case of all the children dying without issue, the word "surviving" will, in the absence of anything in the will to show a contrary intention, be con

strued "other." (ii.) That this construction will obtain even though some of the shares are settled and some not. (iii.) That, if all the shares are settled, the word " surviving" may be construed not as "others," but as meaning those who survive actually in person, or figuratively in issue, taking an interest under the will; but that, if some shares are settled and some are not, this construction is not admissible. In the absence of a gift over in the event of the death of all the children of the testator taking shares under the will, the-fact that the original shares are all settled by the will, and that the accruing shares which the survivors take in the share of a child who dies without issue are settled in the same way as the original shares, is not by itself sufficient to show that the word "survivors" is used otherwise than in its proper sense. Re Benn, 29 C. D. 839. There are cases which seem to support the contention that a settlement of shares without an ultimate gift over is sufficient, but it has never been decided that it is so, and none of the latter cases tend to recognize it as by itself sufficient, per Cotton, L. J., ibid. It will be observed that in Waite v. Littlewood, L. R. 8 Ch. 70, the case in which Lord Selborne first suggested what may be called the stirpital construction of the word "surviving" or "survivors," there was an ultimate gift over in the event of the death of all the children. Wake v. Varah, 2 C. D. 348, is another instance where the ultimate gift over on the death of all the children of the testator without issue led to the word vivor," in a clause of accruer, being construed" other." In that case the testator left the residue of his estate in equal shares to his three children for

sur

their respective lives; there was an accrual clause and an ultimate gift over in the event of the death of all the children without issue: and the stirpital construction of the accrual clause was adopted in favor of the issue of a child of the testator, although that child predeceased the last survivor of the three children. In Beckwith v. Beckwith, 46 L. J. Ch. 98, where the will was very similar but there was no ultimate gift over in the event of the death of all the children, the court construed "survivor" strictly, and refused to adopt the stirpital construction. The importance of the gift over on failure of issue of all the objects as justifying the construction of surviving" or "survivors" otherwise than literally, is dwelt on by Kay, J., in his judgment in Re Bowman, 41 C. D. 525, 531, where he says that the decisions seem to him to establish the following propositions : (1.) Where the gift is to A., B., and C., equally for their respective lives, and after the death of any to his children, but if any die without children to the survivors for life with remainder to their children, only children of survivors can take under the gift over. See Re Horner's Estate, 19 C. D. 186. Re Benn, 29 C. D. 839. (2.) If to similar words there is added a limitation over, if all the tenants for life die without children, then the children of a predeceased tenant for life participate in the share of one who dies without children after their parent. See Waite v. Littlewood, L. R. 8 Ch. 70. Wake v. Varah, 2 C. D. 348. Badger v. Gregory, L. R. 8 Eq. 78. (3.) They also participate, although there is no general gift over, where the limitations are to A., B., and C., equally for their respective lives and after the death of any to his children, [*1334]

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 Wothers 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 v. 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 v. Stone, 3 Russ. 217. Cromek v. 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 v. Conmee, 10 H. L. C. 64.

(p) 3 My. & Cr. 688.