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trust of

favour of

but the

A list of charities excepted from the Mortmain Act will be found in Tudor's Real Property Cases, p. 508.

The Statute of Mortmain cannot be avoided by a secret Secret trust in favour of a charity. Russell v. Jackson, 10 Ha. land in 204.

charity is In such a case, however, the devisee takes the legal bad, estate. Sweeting v. Sweeting, 12 W. R. 239.

devisee

takes the Where land is devised on trust for a person for life with

legal es remainder to charity, the legal estate is well devised for tate. life. Young v. Grove, 4 C. B. 668.

The legal estate passes when the trust is for charity, and for other objects which are valid. Doe d. Chidgey v. Harris, 16 M. & W. 517, 518.

But a devise of lands on an express trust for charity only is void, as regards the legal estate as well, by the statute 9 Geo. II. c. 36. Doe d. Burdette v. Wrighte, 2 B. & Ald. 710.

CHAPTER XXVII. .

SUCCESSIVE AND CONCURRENT INTERESTS, JOINT

TENANCY AND TENANCY IN COMMON.

unless

I. DEVISE TO A CLASS IN TAIL. Devise to In some cases the question has arisen whether the gift a class in tail gives

is to several persons concurrently, or whether they are concurrent intended to take successively; thus a devise to the sons of interests,

a person in tail is, primâ facie, a gift to a class. De Windt v. De Windt, L. R. 1 H. L. 87; Surtees v. Surtees, 12 Eq. 400.

But, if there is a general intention manifest to keep the there is an intention estates together in a single line of enjoyment, the members expressed to keep the

of the class will take successively. Cradock v. Cradock, property, 4 Jur. N. S. 626, 656; Allgood v. Blake, L. R. 7 Ex. 339; together in one line of ib. 8 Ex. 160. enjoy. ment.

II. GIFTS TO A PARENT AND CHILDREN. Gift to In the same way a gift to a parent and children is a parent and chil- prima facie a gift to them concurrently. Mason v. Clarke, dren gives 17 B. 126; Sutton v. Torre, 6 Jur. 234; Wilson v. Madthem concurrent dison, 2 Y. & C. C. 372; Beales v. Crisford, 13 Sim. 592 ;

Newill v. Newill, 12 Eq. 432; 7 Ch. 253. See Cape v. Cape, 2 Y. & C. Ex. 543.

The fact, that the gift is to the parent in trust for herself and her children, is not sufficient to show that they are not to take concurrently. Newill v. Newill, 7 Ch. 253. See Curtis v. Graham, 12 W. R. 998. Ward v. Grey, 26 B. 485, probably goes beyond the present tendency of

the Court. What is a But, if there is anything to show, that the parent is to contrary intention. take a different interest from that of the children, he will

take for life, with remainder to the children.

interests.

1. If the bequest is to A. and his children as tenants Words of

distribuin common, if more than one, showing that the tenancy tion ap

plied to in common is to apply to children only, the father takes the chilfor life. Doe d. Davy v. Burnsall, 6 T. R. 30; 1 B. & P. dren only. 215, where issue must have meant children by the force of the gift over in default of issue of such issue. See Doe d. Gilman v. Elvey, 4 East, 313. 2. A devise to A. and his children and the heirs of the Words of

limitation parent and children, gives a joint estate in fee, or an applied to

the chil. estate tail to the parent, according as there are or are dren only. not children living at the time of the devise. Oates d. Hatterly v. Jackson, 2 Str. 1172; Underhill v. Roden, 2 Ch. D. 494.

But a devise to A. and his children, and the heirs of the children, would give A. an estate for life with remainder to his children. Jeffery v. Honywood, 4 Mad. 398, was decided on this ground, though it would seem the word heirs referred to the parent as well as the children. 3. If the bequest is to a father and his children, and Settlernent

directed of there is a desire expressed that the whole fund should be the whole settled or secured, a term which would have no meaning

fund. as applied to the father's interest as joint tenant, the father takes for life. Vaughan v. Marquis of Headfort, 10 Sim. 639; Combe v. Hughes, 14 Eq. 415.

If a continuing trust is created, which is contemplated as outlasting the parent's life, there is room for a similar argument in favour of a life interest in the parent. Ogle v. Corthorn, 9 Jur. 325. 4. Whether, where the gift is to the separate use of Gift of the

whole fund the mother, it will be considered a sufficient indication of to the intention to cut the interest of the parent down to a life separate interest is not certain. On the whole, the better opinion seems to be, that where the words creating the separate use apply to the whole fund or legacy, it will be construed as giving the mother a life interest. Newman v. Nightin

use at

a

or to interests of

gale, 1 Cox, 341; French v. French, 11 Sim. 257; Bain v. Lescher, 11 Sim. 397; Froggatt v. Wardell, 3 De G. & S. 685; Dawson v. Bourne, 16 B. 29; Jeffery v. De Vitre, 24 B. 296; Scott v. Scott, 11 Ir. Ch. 114; Ogle v. Corthorn, 9 Jur. 325, in which case the Vice-Chancellor Wigram thought that a gift to the separate use was conclusive against the children participating with their mother. Combe v. Hughes, 14 Eq. 415.

On the other hand, the cases of De Witte v. De Witte, 11 Sim. 41, and Bustard v. Saunders, 7 B. 92 (which, however, only followed De Witte v. De Witte), are incon

sistent with this rule. Separate

If the interest of the mother alone is given to her sepatached to rate use, or the separate use attaches to the interests of all parent's interest

alike, no argument in favour of a life estate can be founded

upon the separate use. Fisher v. Webster, 14 Eq. 283; all. Newsom's Trusts, 1 L. R. Ir. 373.

The same is the case, if her interest only is directed to

cease on marriage. Izod v. Izod, 11 W. R. 452. Division of 5. If upon the marriage of their mother the fund is to the whole fund di

be divided among the children, this affords an argument, rected at a that it is not to be divided before, and the mother takes particular

for life or till marriage. Mill v. Mill, I. R. 9 Eq. 104 ; ib. 11 Eq. 158.

6. If the whole fund is contemplated as remaining entire fund undisposed of, if there are no children, if there is

a gift over for instance in default of children, the same construction is adopted. Audsley v. Horn, 26 B.

195; 1 D. F. & J. 226. See Lampley v. Blower, 3 Atk. 396. Children 7. If the children are contemplated as taking shares in plated as the whole fund by a direction, for instance, that if there taking the is but one child the whole is to go to that child, since the whole fund. children are to take the whole, the parent to take anything

must take a life interest. Garden v. Poulteney, Amb. 199; 2 Ed. 323; A udsley v. Horn, 26 B. 195; 1 D. F. & J. 226.

time.

Gift over of the

if there are no children.

contem

a

a future

8. If the bequest is such, as expressly to include all the Express

gift to children of the parent, and not merely those in being at afterborn

children. the period of distribution, it will be construed to give a life estate to the parent, with remainder to the children, since it is a singular intention to impute to the testator that the parent's interest in the estate should continually diminish on the birth of a new child. Jeffery v. De Vitre, 24 B. 296; Jeffery v. Honywood, 4 Mad 398. 9. If the legacy is payable in part at once, and in part Part of

the fund at a future period, the parent will take for life, as other- payable at wise different classes of children might take the two period. portions. Morse v. Morse, 2 Sim. 485. 10. If in the event of the mother's death before the Effect of a

gift to the testator the children are to take unequal shares, the children in presumption of joint tenancy is apparently rebutted.

unequal dimstrong v. Armstrong, 7 Eq. 518.

11. If the children are contemplated as not enjoying Words imthe property till after their mother's death, by being called plying that heirs for instance, the parent takes for life only. Crawford are not to v. Trotter, 4 Mad. 36; Ogle v. Corthorn, 9 Jur. 325 ; their Wilson v. Vansittart, Amb. 561.

parent's

death. 12. There may be a reference to another gift, to assist Reference the Court in giving the parent a life interest. French v. gifts. French, 11 Sim. 257 ; In re Owen’s Will, 12 Eq. 316.

13. An executory trust for A. and her children will Executory be settled on A. for life, and afterwards for her children. In re Bellasis' Trust, 12 Eq. 218.

shares in certain events.

take till

to other

trust.

III. JOINT TENANCY, TENANCY IN COMMON AND BY

ENTIRETIES.

A. What creates a joint tenancy.

Gift to

several A gift to two persons or to a class with words of with words

of limita. limitation, primâ facie, constitutes a joint tenancy tion is between them.

a joint

tenancy. The rule, that the interests of joint tenants must vest Interests

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