to dispose of property by an instrument not duly executed as a will; and that the policy belonged to his residuary legatees. Johnson v. Ball (1851), 5 De G. & S. 85.

Destination of Property.-In the event of the trust not being allowed to be established by evidence, the property passes under the residuary gift, or if already residue, to the testator's heir-at-law or next-ofkin according to its quality.

CHAPTER XXXIII.

IMPLICATION.

1.-Implication of an Estate Tail.

In certain cases an estate can be implied in a person without being expressed.

Suppose, for instance, that there is a devise of realty to A., the same to be enjoyed by him during his life, but "if A. shall die without issue, then the property shall be sold and the money divided between B., C. and D."; the testator, after giving A. a life estate, ought to have provided for two alternatives(1) The death of A. with issue;

(2) The death of A. without issue.

On the strict wording of the devise, there is no gift at all after the death of A. in the first alternative, but where "issue" means issue generally, it is obvious that an estate tail in A., followed by the specified gift over if A. should die without issue, would cover both alternatives, and would, moreover, satisfy the testator's intention that the estate should not go to B., C. and D. except in the event which he has expressed.

And accordingly where issue means issue generally, but only in such a case, a gift to A. for life followed by a gift over in the event of A. dying without issue gives A. an estate tail. See Machell v. Weeding

(1836), 8 Sim. 4.

As a matter of fact, however, "issue"

can very

seldom now mean issue generally, by reason of s. 29 of the Wills Act mentioned below, and in a plain devise to A. for life, but if he shall die without issue," or upon failure of his issue," then to B. there would be an intestacy, if the event for which the testator has not provided, namely, A.'s death with issue, occurred. To put the matter in a slightly different way, if an estate tail is to be implied in A., the proper limitation after the gift to A. would be "and upon failure or in default of issue of A." to B., where failure of issue means failure of issue at any indefinite time, but s. 29 says in effect that the phrase "failure of issue" shall not mean a failure of issue at any indefinite time; and as the implication of an estate tail rests upon that meaning of the phrase, the estate tail cannot be implied.

Wills Act, s. 29:

In any devise or bequest of real or personal estate the words "die without issue," or "die without leaving issue," or "have no issue," or any other words which may import either a want or failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift being, without any implication arising from such words, a limitation of an estate tail to such person or issue or otherwise; provided, that this Act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there

shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue.

This section contemplates two uses of the word. "issue":

(1) The word "issue" when used without reference to persons or classes to whom a previous gift has been made;

(2) The word "issue" when used with reference to persons or classes to whom a previous gift has been made.

(1) When used without reference, the section provides that words which might, on the face of the will, have one of two alternative meanings, namely:

(a) Want or failure of issue of a person in his life or at his death; or

(b) an indefinite failure of his issue,

shall have the meaning (a), and not the meaning (b), unless a contrary intention shall appear by reason of the person having a prior estate tail, or by reason of the failure of issue being specified to be indefinite.

Formerly a gift to A., followed by a gift over, “on failure of his issue," "if he shall die without issue," or "without leaving issue," and similar expressions gave A. an estate tail by implication; but in the absence of anything to the contrary, such a gift cannot now do so, and the question whether the gift over takes effect is determined at the latest at A.'s death. A contrary intention would be expressed in such a gift as a devise of realty to A. for life," but on failure of his issue at any time," then to B.; and such a gift would still give A. an estate tail.

(2) The word "issue," however, is more frequently used in this connection as a compendious method of referring to persons or classes of persons who are to take under a previous limitation, and if upon the construction of the will the testator is intending to refer to such persons or classes (whether they are described as "issue" or not), the expression "die without issue," "in default of issue," &c., will be read "die without such issue," "in default of such issue," &c., and the limitation will follow naturally after the former limitation, taking effect if the former limitation fails to take effect; the construction in this case is not affected by the first part of the section.

2. Implication of Life Interests.

Where a testator gives real or personal estate after the death of A. to the person who is his (the testator's) heir-at-law or next-of-kin respectively, A. does not, upon the words of the gift, take any interest at all, but in the particular circumstances a life estate is implied in A.

"As regards an heir-at-law, if real estate is given to him alone after the death of A. (A. having no interest), there is a gift to him at that time of what, in the absence of any gift, he would take immediately after the death of the testator. To make sense of this you must take it as expressing an intention to exclude the heir-at-law till that time arrives. Now an heirat-law can only be excluded by giving the property to somebody else, and, therefore, when there is a gift to the heir-at-law alone of real estate after the death of A., a gift of a life estate to A. is implied, because in no other way can the heir-at-law be excluded. But