ments in In such cases the fact that the distribution is to be per Argucapita, and not per stirpes, would be an argument, that favour of the distribution was to be postponed till the death of the postponing surviving tenant for life. See Pearce v. Edmeades, 3 tion till the Y. & C. Ex. 246; 2 W. R. 672. It seems also that if the gift after the death of the annuitants is to their heirs per capita, this would afford a strong argument for implying a life interest in the surviving annuitants; but the case is different if the gift over is to the heirs of the annuitants and of other persons. Hensley v. Wills, 14 W. R. 423. distribu death of the survi ving tenant for life. be no im survivor ship where tion of the e. Where, however, the duration of the annuity is clearly There can defined by the original gift, as for instance, where the gift plication of is to several as tenants in common for their lives and the life of the survivor, the shares of those dying during the the duraduration of the annuity pass to their representatives. annuity is Jones v. Randall, 1 J. & W. 100; Eales v. Cardigan, 9 Sim. 384; Bryan v. Twigg, L. R. 3 Eq. 433; 3 Ch. 183; Chatfield v. Berchtoldt, 18 W. R. 887; see Rownd v. Peckett, 47 L. J. Ch. 631; Kelsey v. Ellis, 38 L. T. N. S. 471. It is submitted, that in such a case a gift over after the death of the survivor of the annuitants can have no influence on the construction; see, however, the decree of Sir W. Grant in Avern v. Lloyd, 5 Eq. 383. clearly de fined by the original amounting to the sur There may, however, in such a case, be words to show Words that the survivor was to take the whole. Thus, if the gift to an exis to several as tenants in common "for their lives, or the press gift life of the survivor, for their or her absolute use," or "for vivor. their lives and the life of the survivor during their and her natural life," the additional words show that the survivor was meant to take the whole. Hatton v. Finch, 4 B. 186; Cranswick v. Pearson, 31 B. 624; affd. 9 L. T. N. S. 275; and in Doe d. Borwell v. Abey, 1 Mau. & S. 428, the gift over "from and after their respective deceases and the Annuity given for fixed period for decease of the survivor," indicated that the representatives of annuitants were not to take anything after their respective deaths. 3. Distinction between annuities given for a period and for an object: An annuity given to a person for a fixed period for maintenance is not determined by the attainment of mainten majority, or by death before that period. Badham v. Mee, ance does 1 R. & M. 631; Longmore v. Elcum, 2 Y. & C. C. 363; mine with Lewes v. Lewes, 16 Sim. 266; Atwood v. Alford, L. R. minority. 2 Eq. 479; In re Ord; Dickinson v. Ord, 9 Ch. D. 667 ; 12 Ch. D. 22. not deter Annuity for maintenance This, however, does not apply where the duration of the annuity is merely the duration of the legal estate: if, for instance, the annuity is given to trustees for their lives, and the life of the longest liver of them, for the support of A. Ryan v. Keogh, I. R. 4 Eq. 357. The gift of an annual sum for maintenance and education is not to be limited to minority, but creates a life and educa- interest. Soames v. Martin, 10 Sim. 287; Wilkins v. Jodrell, 13 Ch. D. 564; see Frewen v. Hamilton, 47 L. J. Ch. 391; see p. 391, ante. tion. Annuity to trustee for his trouble. Gift to a person In Gardner v. Barber, 18 Jur. 508, an annuity for maintenance and education was limited to minority. See Foley v. Parry, 2 M. & K. 138. A gift of an annuity to a trustee, so long as he should continue to execute the office of trustee under the will, or for his trouble, ceases with the active trusts, not necessarily with a judgment for administration. Baker v. Martin, 8 Sim. 25; Hull v. Christian, 17 Eq. 546; M'Dermot v. O'Conor, I. R. 10 Eq. 352; Clay v. Coles, W. N. 1880, Henrion v. Bonham, Dru. t. Sug. 476. 145; It is clear that a gift of rents and profits to a parent during the during the minority of a child, where no benefit is intended minority of an infant for the child, will go to the representatives of the parent if he dies during the minority. Smith v. Havers, Cro. Eliz. 252; Laxton v. Eedle, 19 B. 321. On the other hand, if the child dies during his minority, the parent will, nevertheless, be entitled to the rents and profits till the time when the child, if living, would have attained twenty-one, if the object of the gift is payment of debts. Carter v. Church, 1 Ch. Ca. 113; Boraston's Case, 3 Co. 19 a. And it would seem that the construction would be the same if the object of the term is the benefit of the person to whom the rents and profits are given during the minority. Coates v. Needham, 2 Vern. 65. See 1 Jarm. 546. On the other hand, if the term is created for the benefit of the child, or if the object of it is merely to postpone the interest of the child till he should have performed some condition, which could not be performed after his death, the term will determine with his life. See Manfield v. Dugard, 1 Eq. Ca. Abr. 194, pl. 4, where the report is very unsatisfactory. Lomax v. Holmedon, 3 P. W. 176; and see Castle v. Eate, 7 B. 296; Goodright d. Revell v. Parker, 1 M. & S. 692. CHAPTER XXXIII. Condition and trust. and limitation. CONDITIONS PRECEDENT-VESTING. CONDITIONS DISTINGUISHED. 1. THE Court is never astute to construe a testator's words as importing a condition if a different meaning can be fairly given to them. Thus, a devise "upon condition" that the devisee makes certain payments within a given time will, as a rule, be construed as a trust, and not as a condition. Young v. Grove, 4 C. B. 668; Wright v. Wilkin, 9 W. R. 161; 10 W. R. 403; see A.-G. v. Wax Chandlers, L. R. 6 H. L. 1 ; A.-G. v. Merchant Taylors, 6 Ch. 512; and see Bird v. Harris, 9 Eq. 204; Foot v. Cunningham, I. R. 11 Eq. 306. Condition 2. In some cases a condition apparently precedent has been read as forming part of the original limitation. Thus, a devise to M. and the heirs of her body, on condition that she marry and have issue male by S., was held to give an estate in special tail to M. Page v. Hayward, 2 Salk. 570. Similarly, an estate to arise upon a condition, which cuts down a previous estate will, if possible, be construed as a remainder by looking upon the condition as forming part of the limitation of the previous estate. Thus, a devise to A. for life if she should not marry again, but if she did, to B., will be construed as a devise to A. for life or till marriage. Luxford v. Cheek, 3 Lev. 125; Lady Ann Fry's Case, 1 Ventr. 203; Gordon v. Adolphus, 3 B. So, too, if the gift for life is made "subject to the pro- Devise for life subject viso hereinafter contained," the proviso is incorporated into to a prothe original limitation. Webb v. Grace, 2 Ph. 701. And a bequest to A. for life, if she should so long remain unmarried, will be construed in the same way. Heath v. Lewis, 3 D. M. & G. 954. On the other hand, if the condition is so penned that it cannot be connected with the previous limitation for life, it must take effect as a condition. Sheffield v. Lord Orrery, 3 Atk. 282; see Allen v. Jackson, 1 Ch. D. 399. In such a case, however, it may appear that the original estate was only meant to last till the condition takes effect, if, for instance, the rents are directed to be paid to a woman, which could only be done till her marriage, the estate not being given to her separate use. Meeds v. Wood, 19 B. 215. viso. trustees to preserve. Upon the same principle, the ordinary limitation to Estate of trustees to preserve contingent remainders is a vested. remainder, the prior estate being looked upon as lasting till forfeiture by the prior taker. Smith d. Dormer v. Parkhurst, 18 Viner, fol. 413; 3 Atk. 135; 4 B. P. C. 353. CHARACTERISTICS OF CONDITIONS PRECEDENT. test of con cedent. Whether a condition is subsequent or precedent must General depend on the language in which it is framed, and very dition prelittle help can be derived from decided cases on the point. It may, however, be noticed, that when the condition requires something to be done, which will take time, the argument is in favour of construing it as a condition subsequent. Popham v. Bampfield, 1 Vern. 79; 1 Eq. Ab. 108, pl. 2; Peyton v. Bury, 2 P. W. 626; Duddy v. Gresham, 2 L. R. Ir. 443. |