answer on that point only, but may come to this Court and move for production. That prevents the necessity of introducing into bills any charge concerning the possession of documents by the Defendant.

Now, if this bill had stated that the entry of the Defendant upon the land was at such a time that the Statute of Limitations had not barred the Plaintiff's right, and had then proceeded to charge that the Defendant had documents in his possession which would prove that fact, the plea would have been a good plea; but it should be accompanied by an answer giving the discovery required as to the documents.

Here, a plea of the statute has been put in, and a replication filed, which tenders the issue stated in the bill, namely, that, owing to the payment of interest within twenty years, the statute has not run against the Plaintiff; and the Plaintiff now says that she undertakes to prove that portion of her bill from the documents in the Defendant's possession, of which she would have had a right to have a discovery by way of answer if the bill had distinctly charged that they were in the Defendant's possession. I think that, for the purpose of discovery upon that issue, the Plaintiff is entitled to the production of these documents.

[74] GREENWOOD v. VERDON.(1) Nov. 17, 18, 21, 1853.

[S. C. 3 Eq. R. 181; 24 L. J. Ch. 65; 3 W. R. 124.]

Will. Construction. Dying without Issue. Surviving Legatees. Executory Devise. A devise of real estate to A. "and his heirs and assigns for ever," and, from and after his decease without issue, "to be equally divided amongst the then surviving legatees, share and share alike:" Held, that the first limitation to A., being of an estate in fee in the largest terms, and the gift over being to the survivor of certain ascertained persons, a personal benefit was intended for them, and therefore the gift over must be taken to refer not to an indefinite failure of issue, so as to cut down A.'s estate in fee to an estate tail, but to a failure of issue to take place within the lives of the executory devisees; and that event not having happened: Held, that the executory devise had failed, and the estate in fee of A. became absolute.

John Verdon, by his will, dated in 1808, after giving some pecuniary legacies to certain persons by name, continued :-" And all the rest, residue and remainder of my said personal property, of every nature, kind or sort, goods, chattels and effects whatsoever, together with all my real estate and property wherewith it hath pleased Almighty God in this world to endow me, I give, bequeath and devise the same to Susanna, my well-beloved wife, and John Verdon, my well-beloved son, who now live with me, to hold to them, the said Susanna my wife, and John my said son, to have and enjoy the same, and all benefit and advantage thereof, for and during their natural lives, and from and after the death of my said wife to hold to him my said son John Verdon, and to his heirs and assigns for ever; moreover, if Susanna, my beloved wife aforesaid, be disposed to resign her part and interest in the trade and property, real and personal, benefit and advantage above mentioned, I devise and enjoin to John Verdon, my well-beloved son aforesaid, to allow and pay to Susanna, my wife above mentioned, the sum of £30 a year, in four quarterly payments, during her natural life; and furthermore, from and after the decease of my said wife and of my said son John without issue, I do hereby give and devise all the residue of my worldly estate and property, both real and personal, to, and to be equally divided amongst the then surviving legatees, share and share alike."

The testator died in 1809, leaving his wife and his son John surviving. His widow died shortly afterwards. The legatees named in the will died long ago. John, the son, died in June 1851, leaving an only son his heir at law. [75] The devisees of his real estate were the Plaintiffs, and his son and heir was the Defendant in the special case in this suit, which sought the judgment of the Court upon the question whether,

(1) See Parker v. Birks, infra, p. 156.

under the above will, John Vernon, the son, took in the freehold lands of inheritance thereby devised an estate in tail, or an estate in fee-simple, subject to be defeated by an executory devise over in the event either of his dying without issue living at his own death or at the death of the surviving legatee, or what other estate or interest? Mr. J. V. Prior, for the Plaintiffs. John Verdon, the son, took a fee-simple, defeasible on his death without issue then living, or on the failure of his issue during the lives of any of the legatees. In the latter case the direction to divide the property amongst "the then surviving legatees," as the legatees were existing ascertained persons at the date of the will, restrains the indefinite meaning of the words "from and after the decease of my said wife and of my said son John without issue" to a death without issue within the period of lives in being; because the words contemplate the probability that some of the legatees will be in existence when the event happens, and therefore that will not be a construction obnoxious to the rule against perpetuities.

In Hughes v. Sayer (1 P. Wms. 534) there was a bequest of personal estate to A. and B., "and upon either of their dying without children, then to the survivor," and the Master of the Rolls decided that the word children meant issue in that case, but that the words "dying without children meant dying without issue living at the death of the party; because the gift over being to the surviving devisee shewed that a general failure of issue was not intended.

[76] In Massey v. Hudson (2 Mer. 130) a testator charged his real estate with two legacies of £300, to be paid at the death of another legatee to A. and B. respectively, and in case A. or B. should die without issue both legacies to go to the survivor of them, his or her executors, administrators or assigns. Sir Wm. Grant, M.R., said, "I think the bequest over in this case is too remote; a bequest to A. after the death of B. does not import that A. must himself live to receive the legacy. The interest vests at the death of the testator and is transmissible to representatives, who will take whenever the event of B.'s death may happen. So, if the bequest be to A. in case B. die without issue. If that were allowed to be a good bequest A.'s representatives would be entitled to take, at whatever time the issue might fail. It is for that reason that it is held too remote. But if A. is personally to take the legacy, then the presumption is strong that an indefinite failure of issue could not be in the testator's contemplation. Primâ facie, a bequest over to the survivor of two persons, after the death of one without issue, furnishes this presumption, for it will be intended that the survivor was meant individually and personally to enjoy the legacy, and not merely to take a vested interest, which might or might not be accompanied by actual possession. For, if the survivorship be necessary only to vest the interest and to render it transmissible, the objection of remoteness is not at all obviated, and the restrictive presumption does not arise. Now, the addition of the words executors, administrators or assigns excludes the presumption that it was a mere personal benefit that was intended for the survivor. For, though there should be no such failure of issue as would enable him personally to take, yet his representatives would be entitled to claim in his right, whensoever the failure of issue should happen."

This distinction was recognised in Ranelagh v. Ranelagh (2 M. & K. 441), [77] where there was a similar gift to "survivors" simply, without words of limitation; and Sir John Leach, M.R., said, "I adopt the language of Sir W. Grant in Massey v. Hudson (2 Mer. 130), and take the rule to be, that, prima facie, a bequest over to the survivor or survivors of two or more persons, after the death of one without issue, affords the presumption that an indefinite failure of issue could not be in the testator's contemplation;" and Vice-Chancellor Kindersley took the same view in the case of Westwood v. Southey (2 Sim. (N. S.) 192). Those were gifts of personal estate, but the principle applies equally to devises of real estate.

Mr. Cairns, for the Defendant. The words of the will created a tenancy in tail in John Verdon.

In Hughes v. Sayer (1 P. Wms. 534) the words were "die without children," which makes a material difference. In Massey v. Hudson (2 Mer. 130) Sir W. Grant's dictum was with reference to a gift of personal property. In Ranelagh v. Ranelagh (2 M. & K. 441) the language of Sir John Leach shews that he felt that he was laying down a new rule, which he wished should be thereafter followed; and, on the appeal, the Lord Chancellor founded his decision upon different grounds.

In this case, the first gift is in fee, and therefore there is no subsequent enlargement by the words importing death without issue, but a restriction of the previous gift. In Garratt v. Cockerell (1 Y. & C. C. C. 494) an executory bequest of personalty was in the words "should all my children die without heirs, my property in that case to be divided equally between the children of my brothers and sisters alive on the death of my last child;" and Vice-Chancellor Knight Bruce, after observing upon the dictum which has been quoted from Sir W. Grant's judgment in Massey v. Hud-[78]son (2 Mer. 130), decided that, notwithstanding the last words, the gift over was void for remoteness, a decision which, if the subject had been real estate, would have given estates tail to the original devisees.

In Chadock v. Cowley (3 Čro. 695) there was a devise to the testator's wife for life, with remainder, as to lands in A., to his son Thomas in fee, and as to lands in B. to his son Francis in fee. "Then I will, that the survivor of them shall be heir to the other if either of them die without issue;" and it was held that, although the first part of the will gave a fee, the second corrected it and made it an estate tail. In Wright v. Pearson (1 Eden, 119), the devise was to T. R. for life, remainder to trustees to support contingent remainders, remainder to the heirs male of the body of T. R. and their heirs, provided that if T. R. should die without leaving any issue male of his body living at his death, the testator limited the property to his five grandchildren, "or such of them as should be living at the time of failure of issue male of the said T. R., to take as tenants in common, and to their respective heirs and assigns, equally to be divided between them, share and share alike;" and the Lord Keeper, afterwards Lord Northington, decided that T. R. took an estate tail. (But see Fearne's C. R. pp. 126, et seq.) In Roe v. Scott (Fearne's C. R. p. 473, n.) the devise was to the testator's son James, to hold to him, his heirs and assigns, for ever, and a similar devise of other lands to his other sons, with a direction that, if either of the testator's sons should die without issue, then the estate or estates of such sons should go to the survivors or survivor; and it was held that the sons took estates tail. In Candy v. Campbell (2 Cl. & F. 421; 8 Bligh (N. S.), 469), nom. Campbell v. Harding (2 Russ. & My. 390), there was a bequest of personal estate to [79] C. H., "but in case of her death without lawful issue, I then will the money so left to her to be equally divided betwixt my nephews and nieces who may be living at the time;" and the gift over was held to be void for remoteness. In Prior on Issue, p. 85, it is said, observing upon the last case, "It is probable, however, that the form of gift I am now considering would be considered as shewing that the failure of issue contemplated by the testator was such as must happen in the lifetime of one of the persons who were to take in remainder. In no case, however, has such a construction been actually adopted; indeed, in the cases above cited, in which the indefinite meaning has been given to the words, this latter mode of construction would equally have failed to render the limitation over valid, for in none was the gift over confined to persons in existence, or who might come into existence during the testator's life, and in consequence, even admitting that the failure of issue was intended to take place in their lifetime, the time of a life in being, or twenty-one years after, might be exceeded."

Mr. Prior, in reply.

THE VICE-CHANCELLOR reserved his judgment.

Nov. 21. THE VICE-CHANCELLOR Sir W. PAGE WOOD. This is a special case, for the purpose of ascertaining the construction of the will of John Verdon. The question which arises is one which has frequently come before the Courts, although, perhaps, the precise point now to be considered has not been distinctly decided. I think, however, that with the assistance which I have obtained from the arguments of counsel in this case, I am able to arrive at a safe conclusion.

[80] The question is concerning the construction of a gift of all the testator's real and personal estate to Susanna, his wife, and John Verdon, his son, for their lives, and from and after the death of his wife to his said son, "John Verdon, and to his heirs and assigns for ever," and "from and after the decease of my said wife and my said son John without issue, I do hereby give and devise all the residue of my worldly estate and property, both real and personal, to, and to be equally divided amongst, the then surviving legatees, share and share alike." There are several points upon this will

which do not admit of question. First, there is clearly an estate in fee-simple limited to John Verdon in remainder after the death of the testator's wife, in the first part of the will; for the limitation is not merely to him and his heirs, but to him and "his heirs and assigns for ever." It is also equally clear that, under the words "dying without issue," unless there be something to restrain their meaning, the testator must be taken to have meant an indefinite failure of issue, and that the limitation to his son in fee would thus be cut down to an estate tail. The real question of difficulty is whether or not there are words in this will which would limit that expression to the failure of issue at any particular time.

Now I will say at once, considering the authorities which have been cited, particularly Candy v. Campbell (2 Cl. & F. 421), I think that I am bound to construe the words "the then surviving legatees" to mean those who may be surviving at the time of the failure of issue of the son, John Verdon, and therefore the case is reduced to the point whether or not there is sufficient on the face of the whole of this will to indicate that the failure of issue referred to was a failure which was to take place at a certain definite period, and [81] not a general failure of issue; and I have come to the conclusion that there is such an indication.

It is necessary to examine the whole of the disposition for this purpose, and I cannot pass over the first part of it. I must observe that this case differs in one respect from others the first limitation here being not only to the son "and his heirs," which has often been restrained to a particular line of heirs, but the limitation is in the largest words to him, "his heirs and assigns for ever." I could not, however, rely upon those words alone; but as they are used, and I have to consider whether or not the estate so limited is cut down to an estate tail, I have to construe the effect of those words upon the subsequent gift on the death of John Verdon without issue.

There have been a series of authorities, from Hughes v. Sayer (1 P. Wms. 534), which have established the rule, that when it is apparent on the face of the will that the testator intended to give a personal benefit to those to whom the estate is limited in default of issue, and not a transmissible interest, in such cases the construction that an indefinite failure of issue was intended is out of the question, because it could not be supposed that the testator could have intended to confer a personal benefit and yet to postpone it till after an indefinite failure of issue. Accordingly, Sir William Grant, in Massey v. Hudson (2 Mer. 130), conceives it to be settled that where there is a limitation to one of two persons, and on the event of his death without issue to the survivor of them, without more, the presumption is that a personal benefit is intended to the one who survives, unless there are added the words "his executors, administrators or assigns," which would exclude that presumption. That last distinction seems very fine; but I suppose Sir W. [82] Grant grounded it on this, that the addition of those words plainly imports that, instead of a personal gift, a transmissible interest was intended for the survivor. The argument in such a case, where the words "executors, administrators and assigns are not used, would be that it is not natural to suppose that the testator intended a limitation over for the benefit of the survivor after an indefinite failure of issue, by way of transmissible interest, because the gift over is to depend on the mere accident of survivorship; and it is unnatural, if the donor were regarding a distant period, that he should make the benefit to the representatives of the survivor depend upon the contingency of their testator surviving the original donee; and therefore this form of limitation is held to be sufficient to modify the strong legal effect of the words "dying without issue," so as to make them signify "dying without leaving issue at the time of his death and leaving the other party then surviving." At the same time, as it has been argued, that doctrine is opposed to the case of Chadock v. Cowley (3 Cro. Jac. 695), where there was a devise which I cannot distinguish from this kind of limitation. In that case there was a gift of certain lands to A. in fee, and certain other lands to B. in fee, and then the will proceeded "Item: I will that the survivor of them shall be heir to the other if either of them die without issue ;" and this was held to cut down their estates in fee to estates tail. That case seems to me to be at variance with the doctrine laid down by Sir Wm. Grant in Massey v. Hudson (2 Mer. 130), which followed the decision in Hughes v. Sayer (1 P. Wms. 534),

and has since been followed in Ranelagh v. Ranelagh (2 M. & K. 441) and other

cases.

However, that is not precisely this case. This is not a gift, on the death of one of two persons without issue, to the survivor of them; and I am bound to hold, according to [83] the decision of Lord Brougham in Candy v. Campbell (2 C. & F. 421), that the limitation over here could only take effect upon the death of this party, and the failure of his issue after his death, because I cannot deny that it is settled that the words "dying without issue" import such failure of issue; nor can I say that the gift over being to the then surviving legatees is sufficient of itself to control this construction; for the words "then surviving" being equally applicable, either to the period of death or to the failure of issue, must be held to apply prima facie to that period which is designated by the fixed legal meaning of the previous words-that is, to the period of a failure of issue after the death. But there remains the question whether or not the period of such failure be not still limited within the period allowed by law for an executory gift, and this depends upon whether the words "then surviving legatees" import that a personal benefit was intended for those legatees, and not a transmissible interest. Now, in Garratt v. Cockerell (1 Y. & C. C. C. 494) the period of survivorship referred to was collateral, and was not the period when a failure of issue would take place. The limitation there was to "the children of my brothers and sisters alive on the death of my last child," not being commensurate with the death without issue of the persons previously named as legatees; and ViceChancellor Knight Bruce said that there was nothing to shew that it was not intended to be a vested interest, though not to take effect in possession in those parties who should be surviving at the death of the last surviving child, the possession being deferred until a general failure of issue; and, therefore, there was nothing which drove the Court to the conclusion that a personal benefit was intended to the parties taking under the executory bequest. But when the gift is, upon the death of the first taker without issue, to the then surviving legatees, that is, to those persons named in the will [84] who should then be surviving, it cannot be a transmissible interest which is given to them; and the only interest which they could take must be one which would accrue on their surviving the specified period, and therefore it must necessarily be a personal benefit that was intended for these legatees; and the period at which it was to take effect being upon the failure of issue of a preceding devisee, I cannot regard the limitation as pointing to an indefinite failure of issue, but a failure which might take place in the lifetime of those legatees who were named in the will; and for this construction there is considerable authority, although no case is precisely and expressly in point.

First, there is the case of Brook v. Taylor, which, as it was cited in Clare v. Clare (Ca. temp. Talbot, 23), was "a bequest of personal estate to the testator's wife, upon condition to give his three sisters £5 yearly for their lives; and, after his wife's death, he gave the same to his daughter Mary Taylor, upon the same obligation to his sisters; and, after his daughter's death, to the fruit of her body, and, for want of such fruit, to his brothers and sisters, and their children, then living: and the opinion of the Court was that the limitation to the brothers and sisters was good; and yet, had there been any fruit of the body, they must have taken an estate tail, but they never coming in esse the second limitation was allowed to take place." On which the observation of counsel in reply is, "If the case of Brook v. Taylor had depended singly on the words 'to her, and, after her decease, to the fruit of her body,' it had clearly been an estate tail; but the reason was that there were those other words, to my brothers and sisters then living, which brought it within the compass of a life.' And the Court seems to have adopted that view, for the Lord Chancellor said "that case of Brook v. Taylor (whatever reason the Judges might go upon) was certainly very [85] different, by reason of the words then living; but here there is a plain affectation of a perpetuity."

In Trafford v. Boehm (3 Atk. 449) the case was this: A person being entitled in reversion under a settlement made his will, and thereby "gave all his real estate to his wife, the Plaintiff, for life, without impeachment of waste, and after her death and failure of issue by him, and payment of debts, to his sister Theodosia Hopper for life, with remainder to several other persons for life, remainder to his own right heirs." Lord Hardwicke decided the case upon the ground that the testator was intending to