devise as heir. Doe v. Frost, 3 Barn. & Ald. 546. See Lees v. Massey, 3 De Gex, F. & J. 113; Sears v. Russell, 8 Gray, 86.

It is argued that it is absurd to suppose from such indefinite language that a testator intended to give to an only child-a son, for example— real estate in fee if he survive the testator, and then, if the son die leaving no issue surviving him, to devest him of it in order to give it back to him in fee under the designation of "heir or heirs of the testator." Such an executory devise is necessarily contingent until the death of the son leaving no issue surviving him, because until the son dies it never can be known with legal certainty whether or not at his death he will leave issue surviving him. This contingency, it is argued, distinguishes such executory devises from remainders which can be held to vest in right as of the death of the testator. A testator can provide that by such an executory devise the property shall pass to his heirs as of the time of his death, or to his heirs as of the time of the death of the first devisee; but the nature of an executory devise, and the fact that the first estate is a fee, furnishes a somewhat stronger reason for holding that the heirs are to be determined as of the time of the death of the first taker than when the first taker has only a life estate, and the devise is of a remainder. The repeated use by the testator of the word "shall" in the proviso of the first paragraph, and the concluding clause of it, that, "if the said Eliza O. shall not then be living, I give said. estate, with its accumulations, to the person or persons who shall be my heir or heirs at law," in which the word "then" relates to the time of the death of the son, strengthen the conclusion that the testator must have intended his heir or heirs living at the time of the death of his son. We attach slight significance to the use of the word "heir" as well as "heirs."

For these reasons a majority of the court are of opinion that the heirs intended by the testator are the issue of Susan Inches, living at the time of the death of Martin Brimmer, Jr., who would have taken the real estate of the testator if he had then died intestate.

Is the widow of Martin Brimmer, Jr., entitled to dower? [The court decided that that question ought not to be determined in this proceeding, but should be left open for determination hereafter in some other proceeding. The opinion on this point is omitted.]

There should be a decree that the heirs of Martin Brimmer, Senior, living at the time of the death of Martin Brimmer, Junior, are entitled to the property as if Martin Brimmer, Senior, had then died intestate. * * *

Decree accordingly.

9 Accord: Doe v. Frost, 3 Barn. & Ald. 546; De Wolf v. Middleton, 18 R. I. 810, 26 Atl. 44, 31 Atl. 271, 31 L. R. A. 146.

If the first taker were one of several heirs at law of the testator, then, quære, whether heirs at law would retain its primary meaning. See Burton v. Gagnon, 180 Ill. 345, 54 N. E. 279.

CHAPTER XII

"SURVIVOR" CONSTRUED vs. "OTHER"

HARMAN v. DICKENSON.

(Court of Chancery, 1781. 1 Brown, Ch. Cas. 91.)

A bequest to two daughters of the testator, and if one should die without issue, then to the surviving daughter and her issue. One of the daughters married and died, leaving issue; then the unmarried daughter died.

LORD CHANCELLOR [THURLOW] held that the money went to the issue of the married daughter, although she did not survive her sister.1

1 The statement of this case is so very short and inaccurate, that it seems to require to be entirely new modelled. An exposition of it, therefore, from the Registrar's book, may be desirable:

The testator vested a sum of £10,000 New South Sea Annuities in trustees, with directions to suffer each of his two granddaughters, A. and B., to receive the dividends and interest to arise on £5000 part thereof, for her separate use; and, after the decease of each of such granddaughters, and when and as each of them should happen to die, to transfer and assign £5000 part of the said £10,000 New South Sea Annuities, unto and among such one or more of the children of each granddaughter so happening to die, who should be living at her decease, in such shares, &c., as his said granddaughter so dying should direct, &c.; and in default thereof, then in trust to assign, transfer, pay, and dispose of the said £5000 and the dividends thereof, unto or equally among all and every the children of his granddaughters so dying, which should be living at her decease, in equal proportions, &c.; the shares to be transferred to them at twenty-one, and the interest, in the meantime, for their maintenance; but in case either of his granddaughters should die without leaving issue, or that such issue should all die before their shares should become transferable respectively as aforesaid, then the £5000 so intended for the children of such granddaughters so dying without issue, or failing issue as aforesaid, and the dividends thereof should go and be paid, and transferred, &c., in manner following, viz., the yearly dividends to such surviving granddaughter for her own use for life, and the principal to go, survive and accrue, and be transferred to the child or children of any of such surviving granddaughters, in the same manner, &c., and subject to such power of distribution as were thereinbefore mentioned, concerning his or their original share of the £10,000 New South Sea Annuities intended for him, her, or them, after the decease of his, her, or their parents. And in case of the death of both his said granddaughters, without leaving issue of their or her bodies, or the death of such issue before their share should become payable, that then the trustees should transfer the said £10,000 unto, and equally between two of his testator's grandsons, therein named.

A., one of the granddaughters, married, and died in her sister's lifetime, leaving issue; then B., the other granddaughter, died unmarried.

The bill was filed on behalf of the infant children of A.

The Lord Chancellor held, on the clear manifest intention, that the whole fund went to the issue of A., the married daughter, although she did not survive her sister; and declared that the plaintiffs, the infants, were entitled

KALES FUT. INT.-26

FERGUSON v. DUNBAR.

(Court of Chancery, 1781. 3 Brown, Ch. Cas. 469, note.)

William Dunbar devised to plaintiff, his executor, so much of his personal estate as would purchase an annual sum of £550, which he gave to his wife for her life; and he directed the principal, after her decease, to be paid to his children; that is to say, one half to his son George, and the other half to his daughters, Elizabeth and Charlotte, equally, if living at the death of their mother; and if any of them should die in the lifetime of the mother, leaving issue, he gave that share to the issue of such child or children equally, at the age of twenty-one years, or day of marriage; but if any of them should die before the age of twenty-one years, without issue, he gave that share to the survivors; and if all of them should die without leaving children, then he directed the same to fall into the residue of his personal estate. He gave his daughters £8000 each, and appointed his son residuary legatee.

to the two sums of £5000 and £5000, New South Sea Annuities, subject to the contingencies in the will of the testator concerning the same.-Belt.

Accord: (1) Where life interests are given to several with a remainder to the issue of each tenant for life, with a gift over on the death of any tenant for life without issue to the surviving tenants for life for their lives, and then to their issue with an ultimate gift over if all the tenants for life die without issue. Cases where realty involved: Cole v. Sewell, 4 D. & War. 1; 2 H. L. 186; Askew v. Askew, 57 L. J. Ch. 629. Cases where personalty involved: Lowe v. Land, 1 Jur. 377; In re Keep's Will, 32 Beav. 122; Badger v. Gregory, 8 Eq. 78; Waite v. Littlewood, 8 Ch. 70; Wake v. Varah, 2 Ch. Div. 348; Garland v. Smyth [1904] 1 Ir. 35; Cooper v. Cooper, 7 Houst. (Del.) 488, 31 Atl. 1043.

(2) Where life interests are given to several with a remainder to the issue of each tenant for life, with a gift over on the death of any tenant for life without issue, to the surviving tenants for life in like manner as the original shares are given, with an ultimate gift over if all the tenants for life die without issue. Cases where real estate involved: In re Tharp's Estate, 1 De J. & S. 453; In re Row's Estate, 43 L. J. Ch. 347. Cases where personalty involved: Holland v. Alsop, 29 Beav. 498; Hurry v. Morgan, 3 Eq. 152; In re Palmer's Trusts, 19 Eq. 320 (ultimate gift over not mentioned).

In Waite v. Littlewood, L. R. 8 Ch. 70, 73 (1872), supra, Selborne, L. C., said: "I do not entirely assent to language which is to be found pervading almost all the cases upon questions of this kind, that the question is whether the word 'survivor' is to be read 'other.' I think there is certainly a very strong probability that any one using the word 'survivor' does not precisely mean 'other' by it, but has in his mind some idea of survivorship; and if the question is simply whether you are to turn it into 'other,' and say it is used merely by mistake for the word 'other,' which is the true word to express the testator's meaning, there is undoubtedly a strong onus probandi cast upon any one who would do that violence to the literal meaning of the word. It would be a strange thing to hold that so many testators were in the habit of using the word 'survivor' when they simply meant 'other.' Generally speaking, a reason of some kind will be found for the use of the word 'survivor' where it occurs, though it may very possibly be, and often in these cases is, an imperfect expression, not expressing completely and exhaustively the whole intention. If no such explanation can be suggested, it is a strong argument against any construction that would reject the word in its proper and primary meaning altogether, and substitute a word which has a different meaning."

Charlotte married Richard Mitchell; afterwards the mother died; and Charlotte died, leaving two daughters by Richard Mitchell, who were defendants to the bill, which was brought by the executor to have the trusts of the will carried into execution, and to be discharged on account of his great age. After the death of Charlotte, Elizabeth died under age, and without issue. The question was, whether the children. of Charlotte were entitled to any part of the share of Elizabeth.

LORD CHANCELLOR [THURLOW] said, this was one of those cases in which he had the mortification to see, that what was most probably the testator's intention could not be executed for want of his having been properly advised, and having sufficiently explained himself; that he thought the testator meant the children should take the share which would have accrued to the parent if living; but not having said so, but limited such share to the survivors or survivor, he must declare George, as the only surviving child, entitled to the whole of Elizabeth's share; and decreed accordingly.

WILMOT v. WILMOT.

(Court of Chancery, 1802. 8 Ves. 10.)

Matthew Wilmot by his will, bearing date the 1st of January, 1786, after giving several pecuniary legacies, gave and bequeathed to his son Andrew Wilmot one third part of whatever he might die possessed of, after all his just debts and legacies paid: such third part to be put out at interest either in the Government Funds, or any other secure manner his executors should find to be most advantageous to the interest of his said son; and it was his farther will, that his said son should not be put in possession of such third part, till he arrived at the age of twenty-five years; and he gave and bequeathed to each of his daughters Mary Wilmot and Sarah Wilmot one third part of whatever he might die possessed of, after all his just debts and legacies paid, in the following manner: to be put at interest, as aforesaid; and his will was, that his said daughter should not be put into possession of such third part, till she should arrive at the age of twenty-one years; and he did in the most earnest manner recommend her to the tender care of his executors; that she should be educated in a decent manner, suitable to the small fortune she might become possessed of at the time of her marriage: but it was his will, and he begged the particular attention of his executors thereto, that his said daughter did not enter into the marriage state before she attained the age of twenty-one years; and that such fortune as might be coming to her at that time might be settled upon her and her heirs forever; but in case of her death without issue, it was to devolve to her husband; and in case of the death of either of the above-named children, before they attain the age mentioned to be the time, they should be put in possession of what he had therein above bequeathed to them, it was his will, that the

said third part of what he might die possessed of, and which would have been coming to the deceased child, might be equally divided between the two surviving children, and in the event of the death of two of his above mentioned children, before they attain the respective ages above mentioned, then it was his will, that the whole of what he might die possessed of is to devolve to the surviving child: but should all his children die, before they should attain their said respective ages, then the whole of his estate is to devolve to the testator's brothers Andrew and Philip Wilmot and their heirs, share and share alike. The testator died; leaving the three children mentioned in the will; upon whose bill the usual decree was made for taking the accounts, &c. Andrew Wilmot died in 1802; having only attained the age of eighteen. Mary Wilmot attained the age of twenty-one in 1795; and received her share; and having married her cousin, Matthew Wilmot, died in May, 1796; and her husband took out administration.

Sarah Wilmot married Peter M'Donald; and they, having obtained an order for a transfer and payment of her share and of a moiety of the share of Andrew Wilmot, presented another petition, that the remaining moiety might be transferred and paid to Peter M'Donald, with the consent of Sarah M'Donald, as the only surviving child.

The LORD CHANCELLOR [LORD ELDON]. It must be argued, that the word "surviving" means the same as "other" or "living at the age aforesaid." In the clause, in which the gift over is made, it was never meant, that any portion should be taken. It was to be the whole or none. There is a number of authorities for construing the word "surviving" to mean "other." I think, they are right in contending, that this vested.

The order was accordingly made for a transfer to the petitioner M'Donald and the administrator of the deceased daughter.2

CROWDER v. STONE.

(Court of Chancery, 1829. 3 Russ. 217.)

John Lloyd by his will, dated the 27th of April 1787, after mentioning in a preceding clause a nephew, John Lloyd, and four nieces, Mary Powell, Jane Greenwood, Ruth Matthews, and Catherine Mitchener, gave a sum of £1100 Four per cent Bank Annuities, and £700 Three per cent Bank Annuities, to his executors upon trust, to pay the dividends to his wife during her life, and after her decease, to his brother during his life. The subsequent disposition of these two sums of stock was contained in the following words: "And from and after the decease of my said wife Catherine, and my said brother Ed

2 See, also, In re Jackson's Trusts, 14 Ir. Ch. 472. In In re Connellan's Trust, 16 Ir. Ch. 524, there was no ultimate gift over, and yet "survivor" was construed "other"-quære.