distribu 1. If the bequest is to A. and his children as tenants Words of in common, if more than one, showing that the tenancy tion applied 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. are limitation applied to the chil dren only. 2. A devise to A. and his children and the heirs of the Words of parent and children, gives a joint estate in fee, or an estate tail to the parent, according as there are or 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. directed of 3. If the bequest is to a father and his children, and Settlement 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. whole fund use. 4. Whether, where the gift is to the separate use of Gift of the 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 Separate use at tached to parent's interest or to interests of all. Division of the whole fund di 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 inconsistent with this rule. If the interest of the mother alone is given to her separate use, or the separate use attaches to the interests of all alike, no argument in favour of a life estate can be founded upon the separate use. Fisher v. Webster, 14 Eq. 283; 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. 5. If upon the marriage of their mother the fund is to 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 time. for life or till marriage. Mill v. Mill, I. R. 9 Eq. 104; ib. 11 Eq. 158. Gift over of the 6. If the whole fund is contemplated as remaining entire fund undisposed of, if there are if there are no children. Children contemplated as a gift over for instance in no children, if there is default of children, the Audsley v. Horn, 26 B. 195; 1 D. F. & J. 226. See Lampley v. Blower, 3 Atk. 396. 7. If the children are contemplated as taking shares in 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 children are to take the whole, the parent to take anything must take a life interest. Garden v. Poulteney, Amb. 499; 2 Ed. 323; Audsley v. Horn, 26 B. 195; 1 D. F. & J. 226. whole fund. children. 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 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. the fund 9. If the legacy is payable in part at once, and in part Part of at a future period, the parent will take for life, as other- payable at wise different classes of children might take the portions. Morse v. Morse, 2 Sim. 485. two a future period. the Effect of a gift to the the children in unequal shares in certain 10. If in the event of the mother's death before testator the children are to take unequal shares, presumption of joint tenancy is apparently rebutted. Armstrong v. Armstrong, 7 Eq. 518. events. children 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. take till parent's death. to other 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. trust. 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. III. JOINT TENANCY, TENANCY IN COMMON AND BY ENTIRETIES. A. What creates a joint tenancy. Gift to several of with words A gift to two persons or to a class with words limitation, prima facie, constitutes a joint tenancy tion is between them. of limita a joint tenancy. The rule, that the interests of joint tenants must vest Interests of joint tenants need not vest at the same time. "All and every." SUCCESSIVE AND CONCURRENT INTERESTS. at the same time, does not apply to estates raised by use, or to wills. Macgregor v. Macgregor, 1 D. F. & J. 63. Thus a gift to the children or to all and every the child or children of A. creates a joint tenancy between them. Kenworthy v. Ward, 11 Ha. 196; Morgan v. Britten, 13 Eq. 28. A devise to two persons who may intermarry, though who may they may both be married already, and the heirs of their bodies, makes them joint tenants in tail. Co. Lit. s. 25, p. 25 b. Devise to two in tail marry. Appoint ment to If an appointment under a special power is made in object and favour of A. and B. as joint tenants, and A. is not an non-object. object of the power, B. takes only a moiety, and the other moiety goes as in default of appointment. In re Kerr's Trusts, 4 Ch. D. 600. Joint tenancy in income. Devise to several in tail who cannot marry. A joint tenancy in income is severed as regards each instalment as soon as it becomes payable. Walmsley v. Foxhall, 40 L. J. Ch. 28. B. Joint life estates several inheritances. Intermediate between cases of joint tenancy and of tenancy in common falls a class of cases, in which, in order to give effect to the whole devise, joint estates for life and several inheritances are given. A devise to several persons who cannot marry, and the heirs of their bodies, gives them joint estates for life with several inheritances in tail. Ferne, C. R. 35; Cook v. Cook, 2 Vern. 545; Forrest v. Whiteway, 3 Ex. 367; Edwards v. Champion, 3 D. M. & G. 202, 214; Tufnell v. Borrell, 20 Eq. 194. A devise to a man and two women, or to two men and one woman, and the heirs of their bodies gives them joint estates for life and several inheritances. Co. Lit. 25 b. A devise to two husbands and their wives, and the heirs. of their bodies, gives joint estates for life, and several inheritances; the one husband and wife the one moiety, the other husband and wife the other moiety. Co. Lit. 25 b. word re A devise to several and the heirs of their respective Force of bodies, gives joint estates for life and several inheritances. spective. But a devise to children and the heirs of their bodies respectively, gives several estates in tail. In re Tiverton Market Act; Ex parte Tanner, 20 B. 374. In the case of real estate devised to several and their Devise to several in heirs a similar principle has in several cases been followed, fee. words of severance being referred to the inheritance, leaving the life interests joint. This construction is assisted if there is an express limitation to the survivor or such words as jointly are used. Barker v. Giles, 2 P. W. 280; 3 B. P. C. 297; see Cookson v. Bingham, 3 D. M. & G. 668. Thus a devise to A. and B. equally as joint tenants, and their several and respective heirs, gives joint estates for life with several inheritances. Doe d. Littlewood v. Green, 4 M. & W. 229. A devise to several and their heirs respectively creates a tenancy in common. Torret v. Frampton, Styles, 434. It has been said, however, that a devise to several and their respective heirs creates joint estates for life and several inheritances. See In re Tiverton Market Act; Ex parte Tanner, 20 B. 374. This rule, however, does not extend to personalty, so that a bequest of personalty to several, and to each of their respective heirs, executors and administrators, will create a tenancy in common. Gordon v. Atkinson, 1 De G. & S. 478. A devise to several and the survivor and the heirs of such survivor gives joint life estates with a contingent remainder in fee to the survivor. Vick v. Edwards, 3 P. Wms. 371; Re Harrison, 3 Anst. 836; Fearne, C. R. 357-359. Doe v. But a devise to several and the survivor their heirs and assigns for ever gives joint estates in fee. Sotheran, 2 B. & Ad. 628, 635. |