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one.

Gift of

presumptive shares, all children will be let in. Iredell v. Iredell, 25 B. 485; Bateman v. Gray, 6 Eq. 215.

In Defflis 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. Distribu- c. If distribution is to be made when all attain twentytion when the 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 twenty

Ves. 256; Mainwaring v. Beevor, 8 Ha. 44; and perhaps
Armitage v. Williams, 27 B. 346; 7 W. R. 650.

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 fixed sum

of the class, the class is fixed at the death of the testator, member of whether possession is postponed to twenty-one or not. Ring

rose v. Bramham, 2 Cox, 384 ; Storrs v. Benbow, 2 M. & K. 46; 3 D. M. & G. 390; Butler v. Lowe, 10 Sim. 317.

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 twenty

death of A., or when the eldest attains twenty-one, whichone after life in

ever is last. Clarke v. Clarke, 8 Sim. 59; Robley v. Ridterest.

ings, 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.

to each

Gift to children

a

en ventre

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6. A child en ventre at the time when the class closes Children is admitted to share, even though the word "living" or when

the class “ born " be added to the description. Doe v. Clarke, 2 H. closes are Bl. 399 ; Clarke v. Blake, 2 B. C. C. 319; Trower v. Butts,

admitted. ; 1 S. & St. 181.

Quære 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 bas a child en ventre. Pearce v. Carrington, 8 Ch. 69. A child en ventre is for this purpose supposed to be Case of

child conborn at the time of distribution ; if, therefore, supposing ceived be

fore but it to have been then born, it would have been illegiti- horn 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

IS TO BE ASCERTAINED,

time the

When there is a gift to children, as A. may appoint, At what with no gift in default of appointment, and no appoint- class to ment is made, similar rules apply as to the period at take in dewhich the class is to be ascertained.

pointment 1. A direct gift to children, as A. may appoint, goes fixed. apparently to all the children living at the death of the testator, to the exclusion of those born afterwards,

is to be

the power.

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. 08; Norman v. Norman, Bea. 430; Lambert v. Thwaites, L. R.

2 Eq. 151. Case when 3. If the only gift is through the power, so that the the only gift is

children take by implication only, in default of appointthrough

ment, 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.

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. . Power to 5. When there is a direct vested gift to children as A. appoint by

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. Custerton 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

FOR ASCERTAINING THE CLASS.

Mere words of futurity, as, for instance, a gift to the How far

words of children that may be born, will not extend the class. futurity Storrs v. Benbow, 2 M. & K. 46; 3 D. M. & G. 390 ; ordinary

affect the Townsend v. Early, 3 D. F. & J. 1.

rules for

fixing the Where the words are “born or to be born," the rules class to

take under appear to be

a gift to 1. When the gift is after a life estate, such words will children.

Children not extend the class. Sprackling v. Rainer, 1 Dick. 344 ; born or to Whitbread v. St. John, 10 Ves. 152; Parsons v. Justice, be born.

. 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

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now born or who may be born hereafter who shall attain
twenty-one. Irelell v. Iredell, 25 B. 485; Bateman v.
Gruy, 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. Dius 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; Eddoves 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.

F. DISTRIBUTION PER CAPITA AND PER STIRPES.

Whether a A gift to A. and the children of B. goes prind facie to
gift to the
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.

So, too, a gift to the children of A. and B., or even to
buted
stirpes or class A., and class B. and C., goes per capita to all. Dug-
per 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

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