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intention being to give four legacies. Lane v. Green, 4 De G. & S. 239. If there is anything to indicate which of the children Explana
tory con the testator meant—for instance, an allusion to their text. residence—the rule of course does not apply. Wrightson v. Calvert, 1 J. & H. 250. See Hampshire v. Peirce, 2 Ves. sen. 216.
So where the gift was to the three children of W., widow of W., and the widow of W. had, at the date of the will, married again, and there were two children by W., and six by her second marriage then living, it was held that the two children by the first marriage were alone intended to take. Newman v. Piercey, 4 Ch. D. 41.
It appears never to have been decided whether, when the number of children living at the date of the will is erroneously stated, children born after the date of the will and before the testator's death would be included.
C. RULES FOR ASCERTAINING THE CLASS.
It appears to be settled, that the same rules are appli- Distinc. cable in the case of realty and personalty for the purpose between of fixing the period, when the persons to take under a realty and
personalty. class name are to be ascertained, though the reasons for the rules in the case of personalty, which it is desirable to distribute as soon as possible, do not apply to realty. 2 Jarm. 144 ; Williams on Seisin, 208.
The rules may be stated as follows :1. If there is a direct devise of real estate to the children Direct
devise to of A., those living at the testator's death take to the children. exclusion of those born afterwards. Singleton v. Gilbert, 1 Cox, 68; 1 B. C. C. 542. See, however, Fearne, Cont. Rem. 514, note l.; Dunning, Conc. Prec. 218, note; Cook v. Cook, 2 Vern. 544; Weld v. Bradbury, ib. 560, and cases
there cited; Mogg v. Mogg, 1 Mer. 654; Eddoues v. Eddowes, 30 B. 603.
The cases of Mogg v. Mogg and Eddowes v. Eddoves cannot be said to be direct authorities upon this point, as the devise there was to the children “ now born or here
after to be born." Direct It is clear that the rule above stated applies to an imbequest. mediate bequest of personalty. Hill v. Chapman, 1 Ves. J.
, 405; 3 B. C. C. 391. Effect of The class will not be enlarged by a gift over on death gift over.
of any of the class under twenty-one, nor by a gift over in default of children. Davidson v. Dallas, 14 Ves. 576; Berkeley v. Swinburne, 16 Sim. 275; Andrews v. Partington, 3 B. C. C. 401 ; Scott v. Harwood, 5 Mad. 332 ; see
Hutcheson v. Jones, 2 Mad. 124. No
If there are no children at the testator's death there children at death. appears to have been some doubt whether in such a case a
devise of real estate would not altogether fail. In all probability, however, such a devise would go to all the children born at any time after the testator's death. See Fearne, 532; Shep. Touch. 438.
This is settled as regards personalty. Weld v. Bradbury, 2 Vern. 705 ; Shepherd v. Ingram, Amb. 448; Hutcheson
v. Jones, 2 Mad. 124; Harris v. Lloyd, T. & R. 310. Contin- 2. A devise of the legal estate to A. for life with gent remainder. remainder to a class of children is governed, in the case of
wills not executed, revived, or republished after the 2nd of August, 1877, by the rules of law applicable to contingent remainders; that is to say, only those children can take whose interests become vested before the determination of the life interest. If there are none at that time whose interests have become vested the devise in remainder fails. Rhodes v. Whitehead, 2 Dr. & Sm. 532; Price v. Hall, 5 Eq. 399; Percival v. Percival, 9 Eq. 386 ; Brackenbury v. Gibbons, 2 Ch. 1). 417; Cunliffe v. Brancker, 3 Ch.D. 393.
40 & 41 Vict.
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. If the legal estate is devised to trustees, or is out- Equitable
remainder standing, for instance in a mortgagee, children born after in lana.
. the determination of the life estate may take a share, but it seems the time at which the class is to be fixed will be determined by the rules applicable to personalty. In le Eddels' Trusts, 11 Eq. 559; Berry v. Berry, 7 Ch. D. 657 Astley v. Micklethwait, 15 Ch. D. 59. See Dunning, Conc. Prec. 218, note.
Future In the case of a gift of personalty in remainder, all gifts.
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. Gift of re
3. And on the same principle if the interest bequeathed versionary 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 paid at
to such as attain twenty-one :" twenty
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.
Gift to be
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; Bleuse 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 a. If the time fixed for payment would carry the class
the class general
rule. 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.
b. Maintenance out of the shares or presumptive shares Maintenof children will not extend the class. Gimblett v. Purton, vested and 12 Eq. 427.
tive shares. 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
ance out of