Case when the only gift is through the power. Power to appoint by though before the death of A. Coleman v. Seymour, 1 Ves. sen. 209. 2. A gift to A. for life, with remainder to his children as he shall appoint, goes to all the children born in the testator's lifetime and coming into being before A.'s death. Crone v. Odell, 1 Ba. & Be. 449; 3 Dow. 68; Norman v. Norman, Bea. 430; Lambert v. Thwaites, L. R. 2 Eq. 151. 3. If the only gift is through the power, so that the children take by implication only, in default of appointment, the rules are the same. Thus, where there is a power to A. to dispose of certain property among children, the gift, in default of appointment, goes to those born at the testator's death, to the exclusion of those born subsequently. Longmore v. Broom, 7 Ves. 124. And where the gift is to A. for life, and then to dispose of the capital among his children, all children born before A.'s death take a share. Grieveson v. Kirsopp, 2 Kee. 653. 4. If the donee of the power and the tenant for life are different persons, and the donee dies before the tenant for life, the class is ascertained at the death of the latter. White's Trusts, Johns. 656. And, apparently, if there is anything to show that personal enjoyment by the beneficiaries was intended, those dying before the tenant for life would be excluded. White's Trusts, supra; Carthew v. Enraght, 20 W. R. 743; In re Phene's Trusts, 5 Eq. 346. At what time the class would be ascertained if the donee of the power survives the tenant for life is uncertain; though by analogy to the case of a direct gift it seems it would be ascertained at the death of the tenant for life, and not of the donee of the power. 5. When there is a direct vested gift to children as A. will. shall appoint, the fact that the power is to appoint by deed or deed or will, or by will only, will not affect the class to take in default of appointment. Casterton v. Sutherland, 9 Ves. 445; Falkner v. Lord Wynford, 15 L. J. Ch. 8; Lambert v. Thwaites, L. R. 2 Eq. 151, see Winn v. Fenwick, 11 B. 438, there discussed. 6. If the only gift is through the power, only those will take in default of appointment who could have taken under the power; and therefore if the power is to dispose of certain property by will, only those who survive the donee can take in default of appointment. Walsh v. Wallinger, 2 R. & M. 78; Kennedy v. Kingston, 2 J. & W. 431; Reid v. Reid, 25 B. 469; Freeland v. Pearson, 3 Eq. 658; In re Susanni's Trusts, 47 L. J. Ch. 65; Sinnott v. Walsh, 5 L. R. Ir. 27; see Brown v. Pocock, 6 Sim. 257, where it does not appear from the report whether the wife survived her husband or not, see L. R. 2 Eq. 157. E. HOW FAR WORDS OF FUTURITY AFFECT THE RULES words of Mere words of futurity, as, for instance, a gift to the How far children that may be born, will not extend the Storrs v. Benbow, 2 M. & K. 46; 3 D. M. & G. Townsend v. Early, 3 D. F. & J. 1. class. futurity 390; ordinary affect the rules for fixing the Where the words are born or to be born," the rules class to appear to be take under a gift to will children. Children 1. When the gift is after a life estate, such words not extend the class. Sprackling v. Rainer, 1 Dick. 344; born or to Whitbread v. St. John, 10 Ves. 152; Parsons v. Justice, 34 B. 598. The case is of course different if the gift is to children "now born or who shall be born in the lifetime of their parents." Scott v. Lord Scarborough, 1 B. 154. 2. The rule is the same where the gift is to children be born. now born or who may be born hereafter who shall attain twenty-one. Iredell v. Iredell, 25 B. 485; Bateman v. Gray, 29 B. 447; 6 Eq. 215. 3. In the case of a direct gift of personalty to children, the words "now born or to be born hereafter" would probably be held to be intended to refer to children born between the date of the will and the death. Dias v. De Livera, 5 App. C. 123. In the case, however, of a direct devise of realty under similar words, children born after the testator's death have been included. Mogg v. Mogg, 1 Mer. 654; Gooch v. Gooch, 14 B. 565; Eddowes v. Eddowes, 30 B. 603. 4. If, however, the gift is of a legacy to each of the children begotten or to be begotten, the class will not be extended beyond the testator's death, as not merely the distribution of what the children are to take, but of the whole estate of the testator, would be indefinitely postponed. Butler v. Lowe, 10 Sim. 317. Whether a gift to the F. DISTRIBUTION PER CAPITA AND PER STIRPES. A gift to A. and the children of B. goes primâ facie to children of all per capita, and not per stirpes. Dowding v. Smith, 3 several B. 541; Rickabe v. Garwood, 8 B. 579. parents to be distri buted per stirpes or So, too, a gift to the children of A. and B., or even to class A., and class B. and C., goes per capita to all. Dugper capita, dale v. Dugdale, 11 B. 402; Dowding v. Smith, 3 B. 541; Pattison v. Pattison, 19 B. 638; Armitage v. Williams, 27 B. 346; Rook v. A.-G., 31 B. 313; Amson v. Harris, 19 B. 210; Tyndale v. Wilkinson, 23 B. 74; Baker v. Baker, 6 Ha. 269. But a gift over of the share of any child dying before attaining a vested interest in possession not to the other members of the class but to the brothers and sisters of the child so dying, will import a stirpital distribution. Archer v. Legg, 31 B. 187; see, too, Ayscough v. Savage, 12 W. R. 373. parents Similarly a gift to several and their issue, or to the Gift to children and grandchildren of A., goes to all children and and their grandchildren coming into being before the period of dis- issue. tribution per capita. Barnaby v. Tassell, 11 Eq. 363; Lea v. Thorp, 6 W. R. 480; 4 Jur. N. S. 447; 27 L. J. Ch. 649. In the same way a gift after a life interest to surviving children and their issue goes to all the children and issue who survive the period of distribution per capita. Re Fox's Will, 35 B. 163; 13 W. R. 1013; Cancellor v. Cancellor, 11 W. R. 16; 2 Dr. & Sm. 199. Shailer v. Groves, which, as reported in 6 Hare, 162, might be cited in favour of a different construction, is there wrongly reported. See 11 Jur. 485; 16 L. J. Ch. 367. A direction that parents and children are to be classed together, and share in equal proportions, will not import a stirpital distribution. Turner v. Hudson, 10 B. 222. the word But the word "respective" has a strong stirpital force. Effect of Davis v. Bennett, 4 D. F. & J. 327; Asycough v. Savage, respective. 13 W. R. 373. As to the word "devolve," see Stonor v. Curwen, 5 Sim. 264. And if the issue of a stirps are treated as taking among them only one equal share, the stirpital construction will be adopted. Brett v. Horton, 4 B. 239; Hunt v. Dorsett, 5 D. M. & G. 570. A gift to several and their issue "per stirpes," or a direction that issue are to take only their parents' share, is sufficient to show that the issue were not meant to take in competition with the original takers. Pearson v. Stephen, 2 Dow. & Cl. 328; 5 Bl. N. S. 203; Johnson v. Cope, 17 B. 561. Whether a direction that issue are to take only the In what cases the distribu- share their ancestor would have taken will have the effect tion will be of making the distribution stirpital throughout seems not to be settled. stirpital throughout. The word parent Where the direction is that the issue are to take a used in a parent's share, and the word "parent" is used in a recurrecurring ring or sliding sense, so as to apply to successive generaor sliding tions of issue, it is clear that the distribution will be stirpital throughout. Ross v. Ross, 20 B. 645; In re Orton's Trust, 3 Eq. 375; Palmer v. Cruttwell, 8 Jur. N. S. 479. sense. Effect of the words So, too, where the direction is that the children or grandchildren are to take an original share between them. Powell v. Powell, 28 L. T. N. S. 730. But a mere direction that the share of any of the original takers dying is to go to his issue would, it seems, not have the effect of preventing remoter issue from taking that share with issue less remote per capita between them. Birdsall v. York, 5 Jur. N. S. 1237; Southam v. Blake, 2 W. R. 446; Weldon v. Hoyland, 4 D. F. & J. 564. Robinson v. Sykes, 23 B. 40, which is contra, was on a marriage settlement. If the gift is to several, and their issue per stirpes, the per stirpes, stirpital distribution will be carried through throughout, so that no children or remoter issue can take in competition with the parents. Dick v. Lacy, 8 B. 214; Gibson v. Fisher, 5 Eq. 51. Gift to parents for life and then to their children. When the gift is to several for life, and then to their children, the cases are not easily reconcileable. 1. It seems clear that a gift to A. and B., as tenants in common for their lives, and then at their death, or at their deaths, or at the death of A. and B., to their children, goes, upon the death of each tenant for life, to his children. Flinn v. Jenkins, 1 Coll. 365; Tanière v. Pearkes, 2 S. & St. 383; Willes v. Douglas, 10 B. 47; Arrow v. Mellish, 1 De G. & S. 355; Turner v. Whittaker, 23 B. 196; Saril |