share in such stock and moneys only in which their parent had an interest." Then there was an ultimate gift over as follows: "And in case of the decease of all my said daughters without either of them leaving lawful issue who shall have attained or thereafter live to attain the age of twenty-one years. Then my will is that my brother's children if any of them be then living or otherwise my next of kin shall have and take amongst them in equal shares all my capital stock in the funds and moneys aforesaid." The will also contained a residuary gift.

The testatrix died on December 23, 1857.

The testatrix's daughter Mary was once married, namely, to Thomas James Hill. She died on October 25, 1899, leaving her surviving two children, the defendants Thomas Bilham Hill and Ellen Mary Bilham Purdie, both of whom had attained the age of twenty-one. She had no other child who attained that age.

The testatrix's daughter Charlotte was once married, namely, to Peter Maclaurin. She died on January 1, 1888, leaving her surviving two children who attained the age of twenty-one, namely, Thomas, who died on August 8, 1895, and Frances, who died on August 5, 1900. She had no other child who attained that age.

The testatrix's daughter Emily was once married, namely, to William Finch Hill. She was the last survivor of the testatrix's three daughters, and died on December 9, 1900, without leaving any issue her surviving. She had several children who died in her lifetime. None of them attained the age of twenty-one except one, Florence Beatrice Hill, who died on June 13, 1889.

This summons was taken out by the testatrix's personal representative, who was also interested under the residuary gift, to determine whether, upon the true construction of the will and in the events which had happened, the share of the stock and moneys given to the testatrix's daughter Emily for life passed under the residuary gift, or under the gift to the children of the testatrix's surviving daughters; and, if so, who were to be considered surviving daughters, and whether daughters' children who attained the age of twenty-one years, but died before the tenant for life, became entitled to participate in the distribution of the said share, or who were entitled to the said share.

JOYCE, J. In this case the testatrix gave one-third of the income of a money fund to her daughter Mary for her life, and after her death one-third of the capital to the children of such daughter whom she might leave her surviving, and having attained or who should attain. twenty-one, share and share alike. The testatrix made a similar gift to her daughter Charlotte and her children, and also to her daughter Emily and her children. There followed a gift over in these terms: [His Lordship then read the gift over and also the ultimate gift over, and continued as follows:]

In other words, we have a settlement of a third share upon each of the daughters and her children, with a gift over of the share of such

of them as may die in a certain contingency, namely, without leaving issue her surviving who attained twenty-one, unto the testatrix's surviving daughters, practically in the same manner as their original shares, with an ultimate gift over to third persons to take effect in the contingency of all the testatrix's said daughters dying without leaving issue who attained twenty-one.

Now, whatever the effect might have been of this will in the absence of the ultimate gift over (see In re Benn, 29 Ch. D. 839), each share given over being practically directed to be held upon the same trusts as an original share (see the concluding part of Kay, J.'s judgment in In re Bowman, 41 Ch. D. 532), it is clear, I think, having regard if necessary to the ultimate gift, that the word "surviving" with respect to daughters in the gift over cannot be read in its literal or natural sense. Waite v. Littlewood, L. R. 8 Ch. 70, as explained by Cotton, L. J., in In re Benn, 29 Ch. D. 845, Wake v. Varah, 2 Ch. D. 348; but, the shares being all settled, the actual decision of the Court of Appeal in Lucena v. Lucena, 7 Ch. D. 255, does not apply.

The testatrix's daughter Charlotte died first, namely, in 1888, leaving two children who attained twenty-one, but both of them died before the month of December, 1900, at which date there was no issue living of Charlotte. The testatrix's daughter Mary died in the year 1899, leaving two children, both of whom are still living and are defendants. The testatrix's daughter Emily died last of all, in the month of December, 1900, without leaving any issue her surviving, although she had had issue (among other children) a daughter, Florence, who attained twenty-one, and died a spinster in the year 1889.

The question to be determined is who, upon the death of Emily, became entitled to her share. There was no actually surviving daughter of the testatrix at that time, and the only one who survived by her children or issue was Mary. The case is precisely that put by Cotton, L. J., in giving judgment in Lucena v. Lucena, 7 Ch. D. 269, 270, where he says: "The fact of shares being settled, and the fact of the ultimate gift over being only to arise in the event of a failure of all children. and issue who are objects of the testator's bounty, are circumstances each of which may properly be relied upon as showing that 'survivors' is not to receive its strict construction. Each of these circumstances exists in the present case. If, with the gift over standing as it does, there had been no settlement of the daughters' shares, we are of opinion that the word 'surviving' would not have received its strict. construction, and must have been construed 'other'; and our opinion. is that the circumstance of the shares of some of the children named in the will being settled is not sufficient to give the word 'surviving,' as a matter of construction, the meaning of 'survivors' in person or in issue taking an interest under the will, though that would have been the effect of the gift to survivors if the shares of all the children, and not of some only, had been settled."

Under the circumstances of the present case it is, I think, immaterial

whether the survivorship be by children or issue. Mr. Whitaker in his able argument claimed for the representatives of the children of Charlotte who attained twenty-one that they ought to participate. But the issue of Charlotte did not survive Emily any more than Emily's daughter Florence did, and it would, in my opinion, be a strange result to admit the deceased children of Charlotte while excluding Florence, the child of Emily.

The decision of the Irish court in the case of O'Brien v. O'Brien, [1896] 2 I. R. 459, was very properly pressed upon me. I have read more than once the voluminous judgments in that case. They contain many passages the reasoning of which I am unable to follow, and with other passages I cannot agree. The truth is that in many cases where the word "surviving" is reported to have been read as "other," all the stocks were in fact surviving, and it was, I think, really upon that ground that the court decided as it did. At all events, I prefer the reasoning of Lord Selborne in Waite v. Littlewood, L. R. 8 Ch. 70, and of the judges who decided Wake v. Varah, 2 Ch. D. 348, and of the Master of the Rolls and Cotton, L. J., in Lucena v. Lucena, 7 Ch. D. 255; and accordingly I decide this case in accordance with the opinion of Cotton, L. J., as expressed in the passage which I have quoted from his judgment in Lucena v. Lucena, 7 Ch. D. 255. This recognizes the idea of survivorship in the use by the testatrix of the term "surviving daughters," and does less violence to the words she has used than I should do if I followed O'Brien v. O'Brien, [1896] 2 I. R. 459, and read "surviving" merely as "other" without considering whether the other daughters did or did not survive in any sense of the word.

The result is that, in my judgment, the children of Mary are alone entitled to the one-third of which Emily received the income during her life.8

8 See In re Friend's Settlement, [1906] 1 Ch. D. 47, where the settlement by deed was upon trust for the six daughters and one son of A. for their respective lives, as tenants in common, with remainder as to the share of each tenant for life to his or her child or children who, being a son, should attain the age of twenty-one, or being a daughter, should attain that age or marry, and if more than one, as tenants in common in fee; provided if one or more of the seven tenants for life should die without issue, or leaving issue, and such issue, being a son, should die under the age of twenty-one, or, being a daughter, should die under that age without having been married, then the original as well as the accrued share of any such tenant for life should go and be equally divided between the survivors and survivor of these the seven tenants for life and their, her and his issue respectively for such estates and interests and in such shares and proportions in all respects as the original shares of the seven tenants for life were directed to be divided. There was an ultimate gift over if all the seven tenants for life died without leaving issue who should attain twenty-one or marry, as aforesaid. Farwell, J., held that the words "survivors and survivor" must be construed "others and other" and that all the children of tenants for life who attained twenty-one acquired absolute vested interests, irrespective of whether they did or did not survive deceased tenants for life or the tenant for life who was still living. In re Bilham, supra, was distinguished on the ground that it did not provide for a gift over to the surviving tenants for life and their issue in the same manner "in all respects" as the original shares were given.

CHAPTER XIII

VESTING OF LEGACIES

CLOBBERIE'S CASE.

(Court of Chancery, 1677. 2 Vent. 342.) 1

In one Clobberie's Case it was held, that where one bequeathed a sum of money to a woman, at her age of twenty-one years, or day of marriage, to be paid unto her with interest, and she died before either, that the money should go to her executor; and was so decreed by my LORD CHANCELLOR FYNCH.2

But he said, if money were bequeathed to one at his age of twentyone years; if he dies before that age the money is lost.3

On the other side, if money be given to one, to be paid at the age of twenty-one years; though, if the party dies before, it shall go to the executors.*

1 The decree was confirmed in the House of Lords. S. c., sub nom. Cloberry v. Lampen, Freem. C. C. 24.

2Accord: see post, pp. 442 et seq.

3 So, where the gift is contained only in the direction to pay at the expiration of a certain number of years after the testator's death, the gift is contingent on the legatee surviving that time. Smell v. Dee, 2 Salk. 415; Bruce v. Charlton, 13 Sim. 65; In re Eve, 93 L. T. R. 235; In re Cartledge, 29 Beav. 583; Hall v. Terry, 1 Atk. 502; In re Kountz's Estate, 213 Pa. 390, 62 Atl. 1103, 3 L. R. A. (N. S.) 639, 5 Ann. Cas. 427; Id., 213 Pa. 399, 62 Atl. 1106; Andrews v. Lincoln, 95 Me. 541, 50 Atl. 898, 56 L. R. A. 103; Reid v. Voorhees, 216 Ill. 236, 74 N. E. 804, 3 Ann. Cas. 946.

Fearne on Contingent Remainders, p. 1, Butler's note: "A. conveys land by lease and release to B. and his heirs, to the use of C. and his heirs, from the 1st day of the following January, or devises land to C. and his heirs, from the 1st day of January next after the testator's decease. In the first case,

the fee remains in A.; in the second, it descends to the heir at law of A. till the day arrives upon which C. is to be entitled to the land, for an estate in fee simple in possession. In the meantime, C. has not an estate in possession, as he has not a right of present enjoyment; he has not an interest in remainder, as the limitation to him depends on the estate in fee simple, which in the first case remains in A., and in the second descends to A.'s heir; he has not a contingent interest, as he is a person in being and ascertained, and the event, on which the limitation to him depends, is certain; and he has not a vested estate, as the whole fee is vested in A. or his heirs. He therefore has no estate, the limitation is executory, and confers on him and his heirs a certain fixed right to an estate in possession at a future period."

4 Accord: In re Bartholomew, 1 Mac. & G. 354; Shrimpton v. Shrimpton, 31 B. 425; Maher v. Maher, 1 L. R. Ir. 22; Chaffers v. Abell, 3 Jur. 577.

But the executor or administrator of the legatee shall not have the legacy until the legatee would have reached the time specified if he had lived. Rodin v. Smith, Amb. 588 (1744); Maher v. Maher, 1 L. R. Ir. 22 (1877). Semble, except where the whole interest of the legacy is given in the meantime. Rodin v. Smith, supra.

In Furness v. Fox, 1 Cush. (Mass.) 134, 48 Am. Dec. 593 (1848), the testator

CHANDOS v. TALBOT.

(Court of Chancery, 1731. 2 P. Wms. 601.) 5

The last question was touching the legacy of £500 which by the first part of the will of Sir Thomas Doleman was given to his nephew Lewis Doleman, to be paid at his age of twenty-five, and so a vested legacy as to the personal estate, after which the testator's real estate was charged therewith; and in regard Lewis Doleman died an infant of about the

provided as follows: "In the first place I give and bequeath to my grandson, John William Furness, son of my son John C. Furness deceased, five hundred dollars, if he shall arrive to the age of twenty-one years, then to be paid over to him by my executor hereinafter named." "All the rest residue and remainder of my estate both real and personal of every sort and description and wherever situated or being I give devise and bequeath to my children" (naming five persons) "their heirs and assigns forever to be equally divided between them." The legatee, John William Furness, died before arriving at the age of 21 years, and the executor sought to recover the money which had been paid over to him. There was a verdict for the plaintiff, but exceptions were allowed and a new trial ordered, the court holding that the legacy was not contingent on the legatee surviving 21. Metcalf, J., said: "We have, therefore, only to inquire whether, in the case before us, the words, “if he shall arrive at the age of twenty-one years," relate to the words which precede, or to the words which follow them; or, in other language, whether the arrival of the legatee at the age of twenty-one years is a condition precedent to the gift of the money, or only to the payment of it into his hands. And we are of opinion that the testator meant to make an immediate bequest to the grandson, as the representative of his deceased father, but that the money should not go into his hands, during his minority. This seems to us to be the most natural construction of the mere words of the bequest, although the testator's meaning is obscured by the unfortunate collocation of those words, and the inartificial punctuation of the sentence. We are somewhat confirmed in this construction by the only other devising clause in the testator's will. After the bequest to his grandson, he gave all the residue and remainder of his property to his five children who were then alive, to be equally divided among them, without any limitation over, by express mention, of the five hundred dollars, in the event of his grandson's dying under age. It is true that this residuary clause would have passed to the five children the money bequeathed to the grandson, if the legacy to him had failed of effect; but it is hardly probable that the testator knew that such would be its legal operation." 5 Only part of the case is here given.

See In re Hudsons, Dru. & Sugd. 6, where the legacy was vested so far as it was charged upon a term.

So, if interest be given in the meantime, that will not vest the legacy so far as it is charged upon land. Gawler v. Standerwick, 2 Cox, 15. But see Murkin v. Phillipson, 3 M. & K. 257.

"It is a well-established rule as to portions or legacies payable out of lands, that if made payable at a certain age, a marriage, or other event personal to the party to be benefited, and such party die before that time arrive, the portion or legacy is not to be raised out of the land; but if the payment be postponed until the happening of an event not referable to the person of the party to be benefited, but to the circumstances of the estate out of which the portion or legacy is to be paid, such as the death of a tenant for life, then it will be raisable after the death of the tenant for life, although the term out of which it was to be raised had not arisen in consequence of the party to be benefited not having been in esse at the time of the death of the tenant for life, as in Emperor v. Rolfe, 1 Ves. Sen. 208; Cholmondley v. Meyrick, 1 Eden, 77, 85; and many other cases." Per Lord Cottenham, C., in Evans v. Scott, 1 H. L. C. 43, 57 (1847).