In the same way, where the class, to whom the gift is made upon failure of issue, is not to be ascertained at the time when the failure happens, but upon some collateral event; if, for instance, the gift is upon failure of issue to the children of my brothers living at the death of my last child, so that the class to take is ascertained at a different time from the period of possession, there is no reason for restraining the failure of issue, since children may take transmissible interests without surviving the failure of issue. Garrett v. Cockerell, 1 Y. & C. C. 494. 7. It would seem that the same principle ought to apply where the gift is to several, and if any die without issue to the survivors. Chap. XLII, Gift in default of issue to a class ascertainable upon some collateral event. Gift in default of issue to survivors. issue. Therefore, in such a case, if survivors means those who survive When surthe failure of issue, the failure of issue can only import a re- refers to the vivorship stricted failure. The cases, however, seem to show that a mere failure of gift if any die without issue to the survivors without more would be sufficient to restrict the failure of issue to the death of the parent. Hughes v. Sayer, 1 P. W. 534; Ranelagh v. Ranelagh, 2 M. & K. 441; Westwood v. Southey, 2 Sim. N. S. 192; Turner v. Frampton, 2 Coll. 331. But if survivor means not the person surviving the failure of When survivorship is issue but the longest liver of the legatees, so that one legatee merely among surviving another would take a transmissible interest before the legatees. the failure of issue, the failure of issue will not be restricted. Chadock v. Cowley, Cro. Jac. 695. It is submitted that, where the meaning of survivors is clear, words of limitation superadded are immaterial; but where it is doubtful whether the survivorship contemplated is between the legatees or is to be referred to the period of failure of issue, words of limitation superadded afford a strong argument that the former was intended. Massey v. Hudson, 2 Mer. 130; O'Donohoe v. King, 8 Ir. Eq. 185. Effect of words of limitation. the stirpes. Upon the same principle, in all those cases where survivors When surwould be read others, or there is an intention to benefit not referrible to vivorship s merely the persons who survive the failure of issue, but their stirpes, the failure of issue will not be restricted. Roe v. Scott, Fearne, C. R. 473, n.; Taylor v. Walker, 13 W. R. 986; Chap. XLII. Assignees of Leadbeater, I. R. 8 Eq. 422; see, too, M'Clenaghan v. Bankhead, I. R. 8 C. L. 195. Gift over in default of issue to a 8. There is no authority for saying that a gift on failure of issue to A., a definite named person without more, would have named person. the effect of restricting the failure of issue. Lord Beauclerk v. Dormer, 2 Atk. 307; Barlow v. Salter, 17 Ves. 479; see Fearne C. R. 481. Intention to confer personal enjoy. ment. Where the subsequent On the other hand, a gift in default of issue of A. to two persons, or such of them as should be then living, has been held sufficient to show that the testator meant a personal enjoyment by the legatees and could not therefore have intended a general failure of issue. Wilson v. Chestnut, I. R. 1 Eq. 559. Perhaps Roe d. Sheers v. Jeffery, 7 T. R. 589, may stand on this ground. Jones v. Cullimore, 3 Jur. N. S. 404, where the gift was on failure of issue to such of my children as may be then living, and if none should be then alive to a person named and a class, must probably be supported on the ground that the testator showed by the gift to children then living that he did not intend an indefinite failure of issue, and not on the ground that the ultimate gift was to a definite person. 9. Perhaps failure of issue would be restricted if the subseestates are all quent estates are all given to living persons for life only. Roe d. Sheers v. Jeffery, 7 T. R. 589; see Trafford v. Boehm, 3 Atk. 440. for life. When the estate is pur autre vie. Devise on a general failure of issue of a reversion dependent on failure of certain lines of issue. 10. If the estate devised is pur autre vie a limitation over in default of issue is good, since it cannot be held to mean a failure, which might take place after the determination of the estate. Croly v. Croly, Batty, 1; Manning v. Moore, Alc. & Nap. 96; Lee v. Flinn, ib. 418. 11. If the property devised is a reversion which comes into possession only after the failure of issue of some person, a devise of such reversion after failure of the issue in question is in effect an immediate devise of the reversion and therefore valid. And even if the event upon which the reversion is expressed to be devised is larger than and includes the event upon which it comes into possession, the devise will be good if in effect the two events are the same, and the intention is merely to devise the reversion. If, for instance, the reversion falls into possession on failure of issue by a particular wife of the testator and the Chap. XLII testator devises it upon a general failure of issue, the devise is good, as the birth of issue by a second marriage would revoke the will. Jones v. Morgan, Fearne, C. R. App. 577; 3 B. P. C. 322; Lytton v. Lytton, 4 B. C. C. 441. In the same way, if the testator erroneously recites that he is entitled to the reversion of certain estates on the death of a son without issue generally, and then devises the reversion on failure of such issue, the devise is good, the intention being clear to devise the reversion. Lewis v. Templer, 33 B. 625 ; see Bankes v. Holme, 1 Russ. 394, n. But a mere devise of a reversion upon a failure of a larger class of issue than that upon which it is limited, will not operate as an immediate devise of the reversion. Lady Lanesborough v. Fox, Ca t. Talb. 262. Chap. XLIII. Life estate Possession of settled estates prima facie refers to possession under the settlement. Meaning of "entitled." CHAPTER XLIII. SHIFTING CLAUSES. WHERE estates are given by will, and there is a clause shifting the lands if the devisee comes into possession of estates previously settled, the estates go over if the event happens. Cope v. Earl de la Warr, 8 Ch. 982. And the shifting clause will operate upon the life interest of a tenant for life, though his interest is such, that if he comes into possession of the settled estates, his life interest under the will must at the same time come into possession; so that, in effect, the gift of the life interest is nugatory. Lambarde v. Peach, 4 Dr. 553; 1 D. F. & J. 495. When estates devised by will are directed to shift on the devisee coming into possession of settled estates, the presumption is that the testator means a possession under the settlement; and, therefore, if the devisee comes into possession of the settled estates not under the settlement, but under an entirely new title, for instance, under the will of a tenant in tail, who had barred the entail, the shifting clause will not take effect. Taylor v. Earl of Harewood, 3 Ha. 372; Wandesforde v. Carrick, I. R. 5 Eq. 486. A fortiori, where the shifting clause is to take effect on the devisee becoming entitled to other estates under any existing or future will or settlement and he becomes entitled by descent from his father, though the latter took under a will, the devised estates will not shift. Walmesley v. Gerard, 29 B. 321. The term entitled would in such a clause mean entitled in possession. Umbers v. Jaggard, 9 Eq. 200; see Gryll's Trusts, 6 Eq. 589; Abbiss v. Burney; In re Finch, 17 Ch. D. 223. A shifting clause which affects "any person for the time being Chap. XLIII. entitled to the possession or to the receipt of the rents and profits" of devised hereditaments does not apply to, an infant, where by a clause in the will possession is given to trustees during his minority. Leslie v. Earl of Rothes, (1894) 2 Ch. 499. If the devisee takes the settled estates not under the settlement existing at the date of the will, but under a resettlement, which can be looked upon as a continuation of the old title, the devisee taking the same interest under the resettlement as he would have taken under the old settlement, except so far as his interest has been diminished for his own benefit, the shifting clause takes effect. Harrison v. Round, 2 D. M. & G. 190; see In re Croker's Estate, I. R. 2 Eq. 58; Wright v. Marshall, 51 L. T. 781. If the devisee takes under the resettlement a diminished interest in the settled estates or the estates themselves are diminished in quantity, the shifting clause has no effect. Fazakerley v. Ford, 4 Sim. 390; 1 A. & E. 897; Gardiner v. Jellicoe, 12 C. B. N. S. 568; Meyrick v. Laws, 9 Ch. 237. On the other hand, if the testator expressly gives directions to have a portion of the settled estates settled to other uses, the devolution of the settled estates to the devisee diminished by that portion will not prevent the operation of the shifting clause. Micklethwait v. Micklethwait, 4 C. B. N. S. 790; see Stacpoole v. Stacpoole, 2 Con. & Law. 489, 501. The shifting clause will not, in the absence of a clear intention, take effect where the devisee has only an interest in remainder in the settled estates. Monypenny v. Dering, 2 D. M. & G. 145; Curzon v. Curzon, 1 Giff, 248; Bagot v. Legge, 34 L. J. Ch. 156; 12 W. R. 1097. As to the repeated operation of a shifting clause, see Doe d. Lumley v. Earl of Scarborough, 3 A. & E. 2, 897; Monypenny v. Dering, 2 D. M. & G. 145. It seems a shifting clause would not avoid jointures and portions properly charged upon the estates previous to their shifting. Holmesdale v. West, 12 Eq. 280. Whether a devisee taking settled estates settlement under a re is within a shifting clause." Operation of clause where a shifting devisee has only remainder in settled a estates. Where an estate devised by will is directed upon the devolu- In what case |