Contingent remainders of copyholds were destroyed in the Copyholds. same way by the determination of the particular estate before the remainders become vested. Lane v. Pannel, 1 Roll. Rep. 238,317, 438; Fearne, 310, 320; Scriven on Copyholds, 5th Ed. 281. On the other hand, it seems a contingent remainder in an estate pur autre vie requires no particular estate to support it. See Pickersgill v. Grey, 10 W. R. 207; 31 L. J. Ch. 394. By 40 & 41 Vict. c. 33, it is enacted : Every contingent remainder created by any instrument executed after the passing of this Act (2nd of August, 1877), or by any will or codicil, revived or republished by any will or codicil executed after that date, in tenements or hereditaments of any tenure, which would have been valid as a springing or shifting use, or executory devise, or other limitation, had it not had a sufficient estate to support it as a contingent remainder, shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect in all respects as if the contingent remainder had originally been created as a springing or shifting use, or executory devise, or other executory limitation. It has been suggested that this Act does not apply where the remainder has become vested in one member of a class, as in such a case it cannot be said that the particular estate has determined "before the contingent remainder vests." Williams on Seisin, pp. 205-208. 40 & 41 Vict. c. 33. If the legal estate is devised to trustees, or is out- Equitable standing, for instance in a mortgagee, children born after remainder the determination of the life estate may take a share, but In re it seems the time at which the class is to be fixed will be in land. Future gifts. Gift of reversionary property. Gift to be paid at twenty one. In the case of a gift of personalty in remainder, all children born at the death of the testator and coming into esse before the death of the tenant for life, take a share to the exclusion of those born afterwards. Middleton v. Messenger, 5 Ves. 136; Odell v. Crone, 3 Dow. 61; Holland v. Wood, 11 Eq. 91; Barnaby v. Tassell, 11 Eq. 363. If the life interest is determinable on bankruptcy or some other event, the class is fixed at the time of determination, unless the shares are not to be paid till the death of the tenant for life. Re Smith, 2 J. & H. 594; Aylwin's Trusts, 16 Eq. 585; Brandon v. Aston, 2 Y. & C. C. 24, 30. If no children are born before the death of the tenant for life all after-born children are admitted. Chapman v. Blissett, Cas. tem. Talb. 145; Wyndham v. Wyndham, 3 B. C. C. 58. But this rule does not apply, if there is a clear intention, that distribution is to be made once for all when the fund falls into possession. Godfrey v. Davis, 6 Ves. 43; explained in Conduitt v. Soane, 4 Jur. N. S. 502. 3. And on the same principle if the interest bequeathed is reversionary, the class remains open till the interest falls into possession. Walker v. Shore, 15 Ves. 122; Harvey v. Stacey, 1 Dr. 122. But this does not apply, where a residue is given and some portion of the property which falls into it is reversionary, unless there are provisions indicating an intention to treat the reversionary property separately. Hill v. Chapman, 1 Ves. J. 405; 3 B. C. C. 391; Hagger v. Payne, 23 B. 474; Coventry v. Coventry, 2 Dr. & Sm. 470; King v. Cullen, 2 De G. & S. 252. 4. If there is a direct gift "to be paid at twenty-one, or to such as attain twenty-one :" a. If any member of the class attain twenty-one in the testator's lifetime the class is fixed at the testator's death. Hagger v. Payne, 23 B. 474. A child en ventre at the testator's death was held not to be included in In re Gardiner's Estate; Garratt v. Weeks, 20 Eq. 647, sed quare, see Bortoft v. Wadsworth, 12 W. R. 523. b. If none attain twenty-one in the testator's lifetime, all born at the testator's death and coming into existence. before the eldest attains twenty-one are admitted. Hoste v. Pratt, 3 Ves. 729; Balm v. Balm, 3 Sim. 492; Blease v. Burgh, 2 B. 221; Oppenheim v. Henry, 10 H. 441; Gillman v. Daunt, 3 K. & J. 48; Lock v. Lambe, 4 Eq. 372; Gimblett v. Purton, 12 Eq. 427. As a rule each child attaining twenty-one is entitled to have his share paid to him, but this is not so if the whole income is given for maintenance and there are children who require maintenance. Berry v. Briant, 2 Dr & Sm. 1. c. It seems doubtful whether, if there are no children at the testator's death, all would be admitted whether born before or after the eldest attains twenty-one. Armitage v. Williams, 27 B. 346, better reported in 7 W. R. 650, which seems an authority for the affirmative, was probably decided on the authority of Mainwaring v. Beevor, post; see Harris v. Lloyd, T. & R. 310. There are the following exceptions to the rule:— Exceptions to the rule. a. If the time fixed for payment would carry the class general beyond the limits of perpetuity, members coming into existence after the testator's death, and before the time. of payment, will not be admitted. Kevern v. Williams, 5 Sim. 171; quære as to Elliott v. Elliott, 12 Sim. 276. ance out of b. Maintenance out of the shares or presumptive shares Mainten of children will not extend the class. Gimblett v. Purton, vested and 12 Eq. 427. But if maintenance and advancement are continued beyond the time when the eldest child attains twenty-one, if, for instance, advancement is directed out of vested and presumptive shares. Distribution when presumptive shares, all children will be let in. Iredell v. Iredell, 25 B. 485; Bateman v. Gray, 6 Eq. 215. In Deflis v. Goldschmidt, 19 Ves. 566; 1 Mer. 417, where expressions were used showing that the parent could not die leaving a child who would not be entitled to maintenance, all children were included. See Evans v. Harris, 5 B. 45. c. If distribution is to be made when all attain twentythe young one, or when the youngest attains twenty-one, all children. est attains will be admitted. Hughes v. Hughes, 3 Bro. C. C. 434; 14 Ves. 256; Mainwaring v. Beevor, 8 Ha. 44; and perhaps Armitage v. Williams, 27 B. 346; 7 W. R. 650. twenty one. Gift of fixed sum to each On the other hand, the class would again be restricted if the distribution is to be made when the youngest for the time being attains twenty-one. Gooch v. Gooch, 14 B. 565; 3 D. M. & G. 366. d. When the gift is of a particular sum to each member of the class, the class is fixed at the death of the testator, member of whether possession is postponed to twenty-one or not. Ringrose v. Bramham, 2 Cox, 384; Storrs v. Benbow, 2 M. & K. 46; 3 D. M. & G. 390; Butler v. Lowe, 10 Sim. 317. a class. Gift to children twenty one after life interest. And if there are no children then in existence, the gift fails. Mann v. Thompson, Kay, 638; Rogers v. Mutch, 10 Ch. D. 25. 5. If the gift is to A. for life, then to children who attain who attain twenty-one, the class will be fixed as regards exclusion at the death of A., or when the eldest attains twenty-one, whichever is last. Clarke v. Clarke, 8 Sim. 59; Robley v. Ridings, 11 Jur. 813; Beckton v. Barton, 27 B. 99; 5 Jur. N. S. 349; Parsons v. Justice, 34 B. 598; In re Emmet's Estate; Emmet v. Emmet, 13 Ch. D. 484. In Parsons v. Justice a direction that no child should be excluded in consequence of any other child having attained a vested interest had no effect in extending the class. en rentre 6. A child en ventre at the time when the class closes Children is admitted to share, even though the word " living" or when "born" be added to the description. Doe v. Clarke, 2 H. Bl. 399; Clarke v. Blake, 2 B. C. C. 319; Trower v. Butts, 1 S. & St. 181. Queere whether Garratt v. Weekes, 20 Eq. 647, is consistent with the other authorities. Similarly, when there is a gift to the children of a tenant for life, a gift over, if at the end of five years she has not had a child, will not take effect if she then has a child en ventre. Pearce v. Carrington, 8 Ch. 69. the class closes are admitted. child con fore but A child en ventre is for this purpose supposed to be Case of born at the time of distribution; if, therefore, supposing ceived beit to have been then born, it would have been illegiti- born after mate, it will not be admitted to take, notwithstanding the marriage. marriage of its parents before its birth. In re Corlass, 1 Ch. D. 460. But though a child en ventre is looked upon as existing for the purpose of receiving a benefit, it is not looked upon as existing for any other purpose, if, for instance, distribution is to be made when the youngest child for the time being attains twenty-one; the fact that there is a child en ventre when the youngest attains twenty-one will not postpone the division. Blasson v. Blasson, 2 D. J. & S. 665. D. HOW THE CLASS TO TAKE IN DEFAULT OF APPOINTMENT time the When there is a gift to children, as A. may appoint, At what with no gift in default of appointment, and no appointment is made, similar rules apply as to the period which the class is to be ascertained. class to at take in de 1. A direct gift to children, as A. may appoint, goes apparently to all the children living at the death of the testator, to the exclusion of those born afterwards, fault of appointment is to be fixed. |