all the objects. Cases supra, and Longmore v. Broom (1802), 7 Ves. 124.

Of course, if the will creating the power contains any sort of gift in default of appointment the implication is defeated, and the express gift takes effect.

5.-Gift Implied by Erroneous Statement. An erroneous statement by the testator in his will that a person is entitled to certain property, of which the testator is de facto competent to dispose, is not by itself sufficient to imply a gift of that property to that person; but if there can be found, in addition, an intention that the property should be enjoyed by that person, according to that erroneous statement, a gift may be implied.

For instance, where A. B. stated in his will that on his death his father's property would, under his father's will, devolve on his nephews, contrary to the fact, which was that it formed part of A. B.'s estate, no implication can be raised in favour of the nephews. Circuitt v. Perry (1856), 23 B. 275.

The above case was one where the erroneous statement was as to events supposed to be extraneous to the testator's power of disposition.

But where the testator supposes that he himself has settled property upon a legatee, the result is the same if no evidence of intention can be gathered that the legatee shall enjoy the property upon that erroneous supposition.

For instance, a testator recited (erroneously) : "And whereas I have settled an undivided moiety of a share of £100,000 in favour of A. and her family," and proceeded to dispose of the other moiety without

further mention of the first moiety, there is no gift to A. and her family. In re Bagot, [1893] 3 Ch. 348.

In order to raise an implication of gift, the recital ought to be a recital of a totally non-existent state of things; if, for instance, the recital in question can be considered as a mis-recital of a real gift, it is more difficult to raise a gift by implication.

Upon this point it is said in Smith v. Fitzgerald (1814), 3 V. & B. 2: "It (the recital) refers to something as already done, something that he had given or supposed he had given to them. If, in the preceding part, there was nothing that could in any way answer the description of what he here says he had willed to them, there would then be room for the application of the doctrine that a declaration by a testator that he has given something is sufficient evidence of an intention to give it and amounts to a gift, but the question here is whether he did not mean to describe, however inaccurately, that which he had before actually given." Without denying that the recital of a gift as antecedently made may amount to a gift, the Court ought to see very clearly that there is nothing in the will to which the recital can refer before it is turned into a distinct bequest."

But in the case of Jordan v. Fortescue (1847), 10 B. 259, there was a gift by codicil of "£500 in addition. to £1,500 before bequeathed," whereas, in fact, only £1,000 had been before bequeathed; this was held to amount to a gift by implication of £2,000 in all; and in Farrer v. St. Catherine's College (1873), 16 Eq. 19, a somewhat similar bequest was held to be an implied gift of the larger sum.

These cases are therefore somewhat difficult to reconcile.

Mistaken Description. If a testator (without making any explicit gift) describes a person by an erroneous description, but clearly intends that that person shall take the property which the law would give to the person answering that description, an absolute gift will be implied.

Example." I acknowledge A., my second cousin, to be my next-of-kin and heir-at-law to all my real and personal property situate at M.," where A. is neither next-of-kin nor heir-at-law, is a good gift to A. Parker v. Nickson (1863), 1 D. J. & S. 177.

Omission. Supplying an omission by implication. Trustees were to hold trust monies and to pay the income "to my wife during her life upon trust for all my children who being sons shall attain twenty-one or being daughters shall attain twenty-one or marry in equal shares," and if no child, the fund was given over after the death of the widow, and there were provisions for advancement, &c. Upon the face of the clause the widow is to hold a life interest upon trust for children at twenty-one, which would be a curious provision, and there is no disposition of the capital in the event of there being children. By inserting "and after her death" after "during her life," all inconsistency vanishes, and this was accordingly implied, thus giving a beneficial life interest to the wife and absolute interests to the children. But if the will had stopped short at "equal shares" the omission could not have been supplied by implication. Greenwood v. Greenwood (1877), 5 C. D. 954.

Implication may arise from an elliptical form of expression which necessarily involves and implies

something else, or from a form of gift which cannot be rendered effectual, or a direction to do something, which direction cannot be obeyed without implying something else.

For instance, where a will gave to T. an "estate for life with remainder to the first son of the body of T. lawfully begotten severally and successively in tail male," it is obvious that the words " and other sons,' have been omitted and the question was whether they could be implied; it was held that they could be so implied, for otherwise the words "severally and successively" would have absolutely no meaning. Parker v. Tootal (1864), 11 H. L. C. 143.

No special form of words is necessary to import a condition; the words "upon condition that," "if,"

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provided that," "he paying thereout," and similar words, will prima facie import a condition, either a condition precedent or a condition subsequent as the context of the will may require.

The Court does not look with much favour upon conditions, and, therefore, in some cases (where the language and intention of the testator warrant such a construction) it will construe words primâ facie importing a condition as, on the one hand, a trust, or, on the other hand, as a limitation.

Words Importing a Condition Construed as a

Trust.

A devise upon condition that the donee make certain payments to certain persons within a certain time, will, as a general rule, be construed as a trust, and not as a condition.

The difference in effect is considerable. On the one hand, if the words are held to constitute a trust, the person to whom the money is to be paid is entitled to all the ordinary equitable rights of a cestui que trust against a trustee for the recovery of the money and interest; while on the other hand, if the words are held to be a true condition and not a trust (or a charge