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should be no after-born son as aforesaid, or in case there should be one and he should die under age and without issue, then, subject and charged as aforesaid, to the use of Oller Lomas, his heirs and assigns forever. Henry Lomas and Oller Lomas both died under age, and without issue; Peter Lomas, the after-born son, attained his age of twenty-one; and the question was, whether the executory devise over was void, being dependent on the death of a devisee incapable of taking, or whether it was accelerated by reason of the incapacity of that devisee.15

THE MASTER OF THE ROLLS [SIR JOHN LEACH]. If in a grant or devise there be a limitation in fee which is wholly void, no estate passes, and the use remains in the grantor, or results to the heir of the testator. So, if the void limitation be not of the fee, but of a partial interest only as an estate for life, the use of such partial interest in like manner remains in the grantor, or results to the heir of the testator. The use in this case to the after-born child in fee, resulted to the grantor, and the subsequent gift to Oller Lomas being to take effect only in case the after-born child died before he attained twentyone, and such after-born child having in fact attained twenty-one, the limitation to Oller Lomas could never take effect, and the Crown, standing in his place, can have no claim. The heir of the grantor is, therefore, entitled to the estate limited to the after-born son and his heirs.

There is a case in the books which, at first sight, seems to militate against the principle which I have stated. If there be a devise to a monk for life, with remainder over, it has been held that the devise to the monk is void, and the remainder over takes effect upon the death of the testator. The reason given for that decision is, that a monk is civiliter mortuus, and that the effect is the same as if the devise had been to a person who had died in the lifetime of the testator; that reason has no application here, and is, indeed, somewhat quaint. It appears, by reference to the Registrar's book, that the point in Carrick v. Errington [2 P. Wms. 361] was not ultimately decided, the settlement on which it depended being, on the hearing of the cause upon further directions, declared to be fraudulent and void.

TARBUCK v. TARBUCK.

(Court of Chancery, 1835. 4 L. J. [N. S.] Ch. 129.)

The testator by his will devised certain hereditaments unto his son James for the term of his natural life, without impeachment of waste, and, immediately after his decease, then unto and equally amongst all the children of his said son James, share and share alike, and to their respective heirs and assigns forever as tenants in common; and if but

15 Part only of the case is here given.

one only child, then the said testator gave and devised the same to such only child, his or her heirs or assigns forever, chargeable as therein mentioned. And the said testator also gave and devised all his other messuages and dwelling-houses, buildings, lands, and hereditaments, whatsoever and wheresoever, unto his son Jonathan, for and during the term of his natural life, without impeachment of waste; and from and after his decease, then unto and equally amongst all the children of his said son Jonathan, lawfully to be begotten, share and share alike, or to their respective heirs and assigns forever, and for and during all his, the said testator's term and interest therein respectively, as tenants in common; and if but one only child, then the said testator gave and devised the same to such only child, his or her heirs or assigns forever, and for and during all his term and interest therein respectively, chargeable as therein mentioned; and in case his said son James should happen to die without leaving lawful issue, then he gave and devised the said hereditaments, so devised to him for his life as aforesaid, unto his, the said testator's, son Jonathan, his heirs and assigns forever; and in case his said son Jonathan should happen to die without leaving lawful issue, then the said testator gave and devised the said hereditaments so devised to him for his life as aforesaid, unto his, the said testator's, son James, his heirs and assigns forever, or for and during all his, the said testator's, term and interests therein respectively; but if both his, the said testator's, said sons, James and Jonathan, should happen to die without leaving lawful issue, then the said testator gave and devised the whole of the said messuages, hereditaments, &c., equally, unto and amongst all his, the said testator's, nephews and nieces, share and share alike, and to their respective heirs and assigns forever, or for and during all his, the said testator's, estate, term, and interest therein respectively, as tenants in common.

At the date of the will, neither of the testator's sons had any children, and they both died in the lifetime of the testator, James, one of the testator's sons, left one child, a son, who survived his father James and his uncle Jonathan, but who subsequently died in the lifetime of the testator, and Jonathan died without children. The tes tator died, seised of freehold estates, and possessed of leasehold for lives and years, all of which were included in the above devise; and the question was, whether, under the circumstances, the devise over to the nephews and nieces took effect.

THE MASTER OF THE ROLLS [SIR C. C. PEPYS]. It appears that the testator's son James died in 1814, leaving a son, James; the testator's son Jonathan died in 1824 without issue. James, the son of the testator's son James, died in 1824, and the testator himself died in 1831; so that the devises in favor of the testator's sons, James and Jonathan, and their children, lapsed and failed. On the part of the nephews and nieces it was contended, that, in the events which have happened, they are entitled under the devise to them. On the part of the heir-at-law of the testator, it was contended, that as the events have

not happened upon which alone the nephews and nieces were to be entitled, the devise to them cannot take effect, and that therefore there is an intestacy.

The first question to be considered is, What estates would James and Jonathan have taken, had they survived the testator? [The discussion of this first question is omitted.] I am therefore of opinion, that if James and Jonathan had survived the testator, they would have taken estates for life, with remainder to their children in fee, but with executory devises over, in the event of their leaving no children at the times of the death of the respective tenants for life; and if this be the true construction of the devise, it is clear the gift to the nephews and nieces could never have taken effect, for that gift is only to take effect in the event of James and Jonathan dying without lawful issue, that is, children to the above construction, and James, at the time of his death, had a son, namely, James, who survived both his father and his uncle Jonathan.

The only remaining question is, whether the circumstance of James, and his son, and Jonathan, having died in the testator's lifetime, makes any difference. The distinction is very nice between those cases, in which executory limitations have been held not to be defeated by the failure of a prior estate, as in Avelyn v. Ward, 1 Ves. Sen. 420; Jones v. Westcomb, Prec. Chanc. 316; Murray v. Jones, 2 Ves. & Bea. 313; and the opposite class of cases, in which it has been held, that subsequent limitations do not arise, although the preceding estates fail, because the event in which the estate was to go over had not arisen. The principle, however, is well established, although there has sometimes been some confusion in the application of it. It is, as I conceive, clear, that if James and Jonathan had survived the testator, the devise to the nephews and nieces could not have taken effect under the circumstances which happened; and it is, I think, established by authority, that the situation of the parties is not altered by their having died before the testator. Williams v. Chitty, 3 Ves. 545; Calthorpe v. Gough, 3 Bro. C. C. 394, n.; Doo v. Brabant, 3 Bro. C. C. 392; s. c. 4 T. R. 705; and Humberstone v. Stanton, 1 Ves. & Bea. 385, are decided cases on this point. I am therefore of opinion that the event, on which the nephews and nieces were to take, did not happen; and that consequently there is an intestacy. The same declaration with regard to the leaseholds follows of course.1 16

16 Accord: Brookman v. Smith, L. R. 6 Ex. 291; L. R. 7 Ex. 271 (1872).

HUGHES v. ELLIS.

(Court of Chancery, 1855. 20 Beav. 193.)

The testator, by his will, dated in 1823, expressed himself as follows: "I direct that all my just debts, funeral expenses, the expenses of proving this my will, and all other expenses attendant thereon be first paid by my executrix, hereinafter named, out of my personal estate, and from and after the payment of the same, I give and bequeath the remainder of all my personal estate and effects, of what nature or kind the same may be, in manner following: videlicet-I give and bequeath to my mother, Anne Davies, the sum of one shilling. Also, I give and bequeath to my brother Hugh, and my sisters, Margaret, Anne, Elizabeth, Sarah, and Mary each the sum of one shilling; I give and bequeath to my dear wife Mary the rest, residue, and remainder of all my estate, whether leasehold, real or personal, of what nature, kind, or quality soever the same may be, and to her executors, administrators and assigns. But if my said wife should die intestate, then my will is, that the said remainder of my estate shall be bequeathed to my nephew David Hughes (son of my brother William), and to Margaret Evans (niece of my wife's first husband), share and share alike, their heirs and executors." He appointed his wife sole executrix.

Mary Hughes, the wife of the said testator, died intestate, on the 16th of September, 1854, in the lifetime of the said testator, and who died on the 23d of October, 1854.

The plaintiff Margaret Hughes (formerly Margaret Evans) by this bill claimed a moiety of the testator's residuary estate, under the bequest over to her and David Hughes.

To this bill the defendants Mrs. Ellis and Mrs. Parry demurred. THE MASTER OF THE ROLLS [SIR JOHN ROMILLY]. My opinion of this will is, that the testator intended to give his wife an absolute interest in this property, with the power of absolutely disposing of it either in her lifetime or by will. If she did not dispose of it in her life or by will, he then intended these gifts over to take effect. No doubt the result is, that the gifts over could not take effect for the wife took an absolute interest, and if she died without a will, the residue would go to her next of kin. She died, however, in the life of the testator, and I am of opinion that a lapse took place; the testator might have said "intestate in my life," but the simple word "intestate" excludes the construction that the gift over was intended by the testator to provide against a lapse, because if she had died in his lifetime, be-' ing a feme covert, she had no power to do any testamentary act, by making a will, and she therefore must necessarily have died intestate.

I am of opinion that he intended to give her an absolute interest in the property, and if she did not dispose of it by will, the gift over

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was to take effect, and both upon principle and on the authorities which have been cited, such a gift over could not take effect.

The difficulty has been created by the testator; his estate ought, if possible, to bear the costs.17

SECTION 3.-ACCELERATION

EAVESTAFF v. AUSTIN.

(Court of Chancery, 1854. 19 Beav. 591.)

The testatrix devised and bequeathed all her real and personal estate to trustees, in trust to invest £4,500, and pay the interest thereof to her brother, William Johnson, during his life, and in case of his

17 In Greated v. Greated, 26 Beav. 621 (1859), there was a devise to the testator's children (naming them) in fee, but if any of them died before having Two children died in the heirs of their body or (which the court construed "and") making a particular disposition of his share, then to the survivors. lifetime of the testator, but the gift over to the survivors did not take effect. See, also, In re Jenkins' Trusts, 23 L. R. (Ir.) 162; Stretton v. Fitzgerald, 23 L. R. (Ir.) 310. But cf. Eaton v. Straw, 18 N. H. 320, 333.

In In re Stringer's Estate, 6 Ch. D. 1, 14, 15 (1877) James, L. J., said: "It is settled by authority that if you give a man some property, real or personal, to be his absolutely, then you cannot by your will dispose of that property which becomes his. You cannot say that, if he does not spend it, if he does not give it away, if he does not will it, that which he happened to have in his possession, or in his drawer, or in his pocket at the time of his death, shall not go to his heir-at-law if it is realty, or to his next of kin if it is personalty, or to his creditors who may have a paramount claim to it. You cannot do that if you once vest property absolutely in the first donee. That is because that which is once vested in a man, and vested de facto in him, cannot be taken from him out of the due course of devolution at his death by any expression of wish on the part of the original testator. But that, I should have thought, did not apply to a case where the original gift never did take effect at all, because then there is no repugnance. There may be repugnance between the gift over and the gift intended to be made, but I am not quite sure that that ought to have applied to a case, supposing the point arose, where there was simply the death of the person creating a lapse. True, there are two authorities cited of the late Master of the Rolls, Hughes v. Ellis, 20 Beav. 192, and Greated v. Greated, 26 Beav. 621, one of which seems to me I think, if it were necessary for us to deal with very similar to this case.

these cases, I should be slow to express my assent to them."

Where personal property is bequeathed to A. and the heirs of his body (which, as is well settled, is an absolute gift to A.) and in case of failure of issue of A., then to B., if A. survive the testator, the gift over to B. is void for remoteness, because on an indefinite failure of issue. But if A. die in the life of the testator without issue, then the gift over is not void for remoteness, and will take effect. In re Lowman, L. R. [1895] 2 Ch. 348 (overruling dicta to the contrary in Harris v. Davis, 1 Coll. 416, and Hughes v. Ellis, supra, and Greated v. Greated, supra).

Theobald on Wills (7th Ed.) 648: "It would seem that a gift of consumable Coll. 686, 690.” articles to A. for life, remainder to B., would not lapse by A.'s death in the testator's lifetime, notwithstanding Andrew v. Andrew,