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issue.

v. Legg, 31 B. 187 ; see, too, Ayscough v. Savage, 12 W. R. 373.

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 distribution per capita. Burnaby v. Tassell, 11 Eq. 363 ; Leu 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. But the word “ respective” has a strong stirpital force. Effect of

the word 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 BI. N. S. 203; Johnson v. Cope, 17 B. 561. Whether a direction that issue are to take only the In what

cases the

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Jistribu. share their ancestor would have taken will have the effect tion will be stirpital of making the distribution stirpital throughout seems not through

to be settled. out. The word Where the direction is that the issue are to take a parent 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 sense. 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.

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. Effect of If the gift is to several, and their issue per stirpes, the the words 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.

When the gift is to several for life, and then to their parents for

children, the cases are not easily reconcileable.

1. It seems clear that a gift to A. and B., as tenants in children.

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

Gift to

life and then to their

A. and B.

then to

v. Saril, 23 B. 87; see, too, Doe d. Patrick v. Royle, 13 Q. B. 100; Brown v. Jarvis, 2 D. F. & J. 168.

If the gift is after the deaths of the tenants for life to their children and grandchildren, the families take per stirpes, but the children and grandchildren take per capita, inter se. Barnaby v. Tassell, 11 Eq. 363.

But if the testator goes on to explain what he means by "their children,” by adding “that is to say, the children of A. and B.,” they take per capita. Abrey v. Newman, 16 B. 431.

2. If the gift be to A. and B. for their lives, and at Gift to their death not to their children but to the children of A. for life, and B., there seems less reason for contending that the

children of children are to take per stirpes.

A. and B. However, in Wells v. Wells, 20 Eq. 342, the stirpital construction was adopted. See Milnes v. Aked, 6 W. R. 430; Sutcliffe v. Howard, 38 L. J. Ch. 472; Re Nott's Trusts, 20 W. R. 569.

In such a case a superadded direction that, “if there is but one child, the whole is to go to such only child,” would afford an argument that the distribution was meant to be per capita. Pearce v. Edmeades, 3 Y. & C. Ex. 246; 2 W.

& ; R. 672; Swabey v. Goldie, 1 Ch. D. 380; see, too, Peacock v. Stockford, 7 D. M. & G. 129.

3. If the gift to the children is not till after the death Gift to of the survivor of the tenants for life, it would seem the after death

children

. distribution will be per capita; at any rate if the gift is of surviv

ing tenant to the children of A. and B., and not merely to “their for life. children." Malcolm v. Martin, 3 Bro. C. C. 50; Pearce v. Edmeades, 3 Y. & C. Ex. 246; Sterenson v. Gullan, 18 B. 590; Nockolds v. Locke, 3 K. & J. 6; Swabey v. Goldie, 1 Ch. D. 380; see Alt v. Gregory, 8 D. M. & G. 221. Perhaps Smith v. Streatfield, 1 Mer. 358, comes under this head. If the gift is substitutional, as to several or their children, Substitu

tionalgifts.

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the children take per stirpes. Congreve v. Palmer, 16 B. 435; Timins v. Stackhouse, 27 B. 434; Gowling v. Thompson, 19 L. T. N. S. 242; In re Sibley's Trusts, 5 Ch. D. 494.

A simple gift, however, to several or their issue, though it would import a stirpital distribution among the families, would not prevent all the issue of each family from taking per capita inter se. Gowling v. Thompson, 19 L. T. N. S. 242; In re Sibley's Trusts, 5 Ch. D. 493.

In ascertaining the stirpes reference is to be made to the original stirpes pointed out by the testator, and not to the stirpes existing at his death, so that there will be as many primary shares as there are original stirpes who at the testator's death have descendants living.. Gibson v. Fisher, 5 Eq. 51; see, however, Robinson v. Shepherd, 12 W. R. 234; 10 Jur. N. S. 53; 4 D. J. & S. 129.

How the stirpes ascertained.

257

CHAPTER XXIV.

MEANING OF WORDS DESCRIPTIVE OF RELATIONSHIP.

I. NEPHEWS AND NIECES,

and nieces

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NEPHEWS and nieces mean prima facie the children of Nephews brothers and sisters, including those of the half blood. mean Falkner v. Butler, Amb. 514; Grieves v. Rawley, 10 Ha. Children of

prima facie 63; Cotton v. Scarancke, 1 Mad. 45.

brothers

and sisters. The meaning of the word will not be enlarged where the gift is to each of the present nieces of A., who had only one niece of the first degree living at the date of the will. Crook v. Whitley, 7 D. M. & G. 490.

The fact that the gift is to “nephews, descendants of my brothers,” will not enlarge the class, Williamson v. Moore, 10 W. R. 536.

The fact that a great-niece or a wife's niece has been previously called a niece will not enlarge the meaning of the word. Shelley v. Bryer, Jac. 207; Thompson v. Robinson, 27 B. 486; Smith v. Liddiard, 3 K. & J. 252; Wells v. Wells, 18 Eq. 504; Merrill v. Morton, 43 L. T. N. S. 750; 29 W. R. 394.

Nor will a gift to my great-nephew, and such other of my nephews and nieces as shall be living at my death. Blower's Trusts, 11 Eq. 97; 6 Ch. 351.

But if the testator has at the date of his will and death In what no nephews and nieces of his own, and there are nephews wife's and nieces of his wife, they will take, though he may have nephew had brothers and sisters living at the date of his will. Hogg v. Cook, 32 B. 641; Sherratt v. Mountfield, 15 Eq. 305; 8 Ch. 928; see Adney v. Greatrex, 17 W. R. 637.

cases a

may take.

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