Chap. XL. is a gift to the issue if any die leaving issue. Original gift to class living at period of distribution. Where the whole fund is to be divided once for all. Crowder v. since the gift to the issue takes effect upon the death of the parent, survivorship refers to the same point of time, namely, the death of the person dying without issue. Ive v. King, 16 B. 46; Eyre v. Marsden, 2 Kee. 564; 4 M. & Cr. 231; Wilmott v. Flewitt, 13 W. R. 856; 11 Jur. N. S. 828. (ii.) On the other hand, if the original gift is to a class living at the period of distribution, it seems more natural to refer the survivorship to the same period. Essex v. Clement, 30 B. 525. (iii.) And, perhaps, the same will be the case where the gift is not of the shares of those dying before the period of distribution without issue to survivors, but the whole fund is directed to be divided in the event of any dying before the period of distribution among the survivors, implying that the whole fund is to be kept together till the period of distribution, and then divided among a class of persons capable of personal enjoyment. Watson v. England, 15 Sim. 1. See Re Johnson's Trusts, 10 L. T. N. S. 455. (iv.) Where there are none of the indications of intention above mentioned, it seems doubtful what the rule would be. Crowder v. Stone, 3 Russ. 217, and Young v. Robertson, 4 Macq. 314, appear to be in direct conflict on the point, and the latter being a Scotch case, it is difficult to say how far its authority would be followed, especially as it is in other respects not entirely in harmony with the current of English authority. As far as principle or convenience goes the arguments seem to be fairly balanced. A gift over upon death without issue means death without issue at any time, in the absence of an indication of intention to limit the period of defeasibility. The class of survivors, therefore, would have to be fixed whenever the contingency happens, and there seems no reason for saying that the mere limiting of the period of defeasibility should introduce a contingency into the bequest to survivors and make the gift of accruing shares conditional upon surviving the period of defeasibility. The gift over to survivors, being upon death without issue, it is the failure of issue of members of the original class which is the leading motive in the testator's mind, and not death before the period of enjoyment. The share is given to survivors not because the original members of the class do not live to enjoy it, but because they have no children to benefit. The intention is to benefit not only the original class but their children, whereas, if the survivors are not fixed till the time when the shares become indefeasible, children of such members of the original class as die before that time will take no interest in the shares of those who die without issue, an argument which, as already remarked, becomes conclusive if there is a prior gift to the children of those who die leaving children. On the other hand, if the shares go over at once, and several die without issue in the lifetime of the tenant for life, the representatives of the longer livers will take more than the representatives of those dying previously, while the representatives of the person dying first will take nothing, and it may be said that this can hardly have been the testator's intention; but he would probably have provided for such a contingency if he had contemplated it, and his omission to do so ought not to affect the construction of the will. On the whole, however, it must be admitted that the balance of recent authority is in favour of the principle adopted in Young v. Robertson. See the opinion of Malins, V.-C., 7 Eq. 483, 484. Chap. XL. tively e. What the case would be when, the gift being upon failure Case when of issue of any of the legatees to the survivors, the Court limits the period of defeasibility the period of defeasibility by construction to the lifetime of the is constructenant for life, there is no authority to show. In such a case it would seem the argument above mentioned in favour of immediate accruer would apply with greater force, as the period of defeasibility is only remotely present to the testator's mind. limited T.W. 0 0 CHAPTER XLI. Chap. XLI. Gift over upon death before vesting. Vesting prima facie refers to vesting in interest. When the gift over is to persons living at the period of distribu tion. Vested used THE CONSTRUCTION OF GIFTS OVER. GIFTS OVER UPON DEATH BEFORE VESTING. A GIFT over of the share of a legatee who dies before attaining a vested interest takes effect if the legatee dies in the lifetime of the testator, whether under or over the age appointed for vesting. Re Gaitskell's Trusts, 15 Eq. 386. A gift over upon the death of the legatees before attaining a vested interest refers primâ facie to death before vesting in interest. This is the case whether the gift be immediate or in remainder. Parkin v. Hodgkinson, 15 Sim. 293; Re Arnold's Estate, 33 B. 163; Richardson v. Power, 19 C. B. N. S. 780. If, however, the gift over be to persons living at the period of distribution, there is a strong argument that the word vested was used as equivalent to vested in possession: Young v. Robertson, 4 Macq. 314, where the gift over upon the death of any before attaining a vested interest was to the survivors, which was read as equivalent to those who survive the period of distribution, and Greenhalgh v. Bates, L. R. 2 P. & D. 47, where the gift over was to the next of kin of the tenant for life, who could not be ascertained till her death. So, if the legacies would be vested in interest at the testator's death, and the gift over is, if any of the legatees die during the testator's life, or after his decease, without attaining vested interests, vested must mean vested in possession. King v. Cullen, 2 De G. & S. 252. And, in the same way, the testator may show that he used "vested" in the gift over, as equivalent to "paid," if the gift over is, if any die before their share should be vested as aforesaid, when only directions as to payment have been previously given. Sillick v. Booth, 1 Y. & C. C. 121, 126. If the testator expressly provides for the death of the legatees in his lifetime, a gift over upon death before vesting refers to vesting in possession. In re Morris, 5 W. R. 423. GIFTS OVER UPON DEATH BEFORE PAYMENT. any Chap. XLI. as equivalent to paid. Gift over upon death before pay A. In the case of a direct gift, followed by a gift over, if of the legatees die before their legacies are payable. 1. If a period for payment is appointed the gift over takes ment after effect: a. If the prior legatee dies in the testator's lifetime, whether after the age fixed for payment or not. & W. 1; Gaitskell's Trust, 15 Eq. 386. Walker v. Main, 1 J. b. If the prior legatee survives the testator, but dies before the time fixed for payment. Jenkins v. Jenkins, Belt's Supplement, 264; Rammell v. Gillow, 9 Jur. 704; and see Woodburne v. Woodburne, 3 De G. & S. 643. 2. If no time is fixed payable refers to the testator's death. Rammell v. Gillow, 9 Jur. 704; Collins v. Macpherson, 2 Sim. 87; Cort v. Winder, 1 Coll. 320. an immediate gift with a period of payment. Where no period for payment is appointed. upon death there is a B. If there is a life interest, followed by a bequest to certain Gift over persons, and a gift over in the event of death before the respec- before paytive legacies become payable, no time being appointed for division or payment, the gift over takes effect with respect to those legatees who die before the tenant for life. Crowder v. Stone, 3 Russ. 217; Creswick v. Gaskell, 16 B. 577. The word entitled, however, is more easily susceptible of the meaning vested than the word payable, and it will accordingly be taken to mean entitled in right and not in possession, and referred to the death of the testator and not of the tenant for life, if the latter meaning would have the effect of divesting a previously vested gift. Commissioners of Charitable Donations v. Cotter, 2 D. & Wal. 615; 1 D. & War. 498; Henderson v. Kennicott, 2 De G. & S. 492; Re Crosland; ment where life interest. Meaning of the word 66 entitled." Chap. XLI. Craig v. Midgley, 54 L. T. 238. See Beale v. Connolly, I. R. 8 Eq. 412; Jopp v. Wood, 28 B. 53 ; 2 D. J. & S. 323; but see In re Noyce; Brown v. Rigg, 31 Ch. D. 75. Effect of gift over upon death before payment when there is a life in terest and a period of payment. Effect of Bequest contingent upon attaining 21 is indefeasible at that age. C. If there is a life interest as well as a period of payment the question is more complicated. The most numerous cases on this head have occurred in marriage settlements, where, in addition to the leaning in favour of vesting, the Court is assisted by the legal presumption that the children were intended to be provided for at the time when their portions were wanted, whether they survived the tenant for life or not. See Emperor v. Rolfe, 1 Ves. Sen. 208; Wakefield v. Maffet, 10 App. C. 422. The same rules of construction are, however, applicable to wills. At the same time it must be remembered that the tendency of the Court at the present day is to give words their natural meaning, and it is probable that many of the old authorities cited below would not now be followed. See Leader v. Duffey, 13 App. C. 294. The cases may be classified under the following heads : : 1. If there is a gift to A. for life, followed by a bequest to his children, whether at twenty-one, or payable at twenty-one, with a gift over on death before the legacy is payable, the gift over is good as regards legatees who die in the testator's lifetime, whether under or over twenty-one. Walker v. Main 1 J. & W. 1; the share of Mary Main, who it appears had attained twenty-one. See Gaitskell's Trust, 15 Eq. 386. 2. If there is a gift to A. for life followed by a contingent bequest to his children, as, for instance, to the children at twenty-one, or to be vested at twenty-one, and a gift over in the event of death before the shares are payable, if the word payable were taken in its ordinary meaning as referring to the time at which the money is actually dsitributable, it would involve the double contingency of surviving the tenant for life and attaining twenty-one, and therefore the Court confines it to the latter, which is the event when the bequest is most likely to be required, and this is the case whether there is provision for the issue of the children or not. Mendham v. Williams, L. R. 2 Eq. 396; Mocatta v. Lindo, 9 Sim. 56; Jones |