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not become

fore the testator.

Absolute interests can of course not be limited over by There can

be no reway of remainder; thus a devise, if A. dies without heirs, mainder

after an after a prior devise to A. in fee, is void. Tilbury v. Tar- absolute but, 3 Atk. 617; 1 Ves, sen. 88.

interest. And in the same way absolute interests in personalty cannot be given to several persons in succession. Byng v. Lord Strafford, 5 B. 558.

A gift over, which would be invalid supposing the prior A gift over legatee survives the testator, does not become valid by his itself does death in the testator's lifetime.

valid by Therefore, a gift of personalty to A. and the heirs of the death

of the prior his body, remainder to B., lapses by A.'s death in the legatee betestator's lifetime. Harris v. Davis, 1 Coll. 416; see however, In re Stringer's Estate ; Shaw v. Jones-Ford, 6 Ch. D. 1.

So, too, a gift of consumable articles to A. for life, remainder to B., lapses by A.'s death before the testator. Andrews v. Andrews, 1 Coll. 690. There can be no gift over of so much as a legatee does Giftover of

so much as not dispose of where an absolute interest has been given a legatee to the legatee. Watkins v. Williams, 3 Mac. & G. 622;

dispose of Henderson v. Cross, 29 B. 216; Bower v. Goslett, 27 L. J. is void. Ch. 249; 6 W. R. 8.

Nor can there be a gift over of what remains after payment of the debts of a legatee to whom an absolute interest is given. Perry v. Merritt, 18 Eq. 152.

However, a gift at the legatee's death of whatever remains after a gift to the legatee indefinitely may be construed as a disposition of the residue at the legatee's death, so as to cut him down to a life estate. Constable v. Bull, 3 De G. & Sm. 411; Adams' Trust, 14 W. R. 18; Bibbens v. Potter, 10 Ch. D. 733. And if a fund is given to a person expressly for life, Gift over

after a life with a power of disposing of it during her life or by will, interest, a gift of it after the death of the donee of the power

with power

does not

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of disposi- is good, so far as she does not exercise the power tion,

Pennock v. Pennock, 13 Eq. 144; In re Thomson's Estate;
Herring v. Barrow, 13 Ch. D. 144; 14 ib. 263; In re
Stringer's Estate; Shaw v. Jones-Ford, 6 Ch. D. 1; see
Re Brook's Will, 2 Dr. & S. 362.



Limitations (excluding immediate limitations of particular estates) fall most naturally into limitations disposing of property in which partial or contingent interests have been previously given, and limitations varying and re

arranging previous dispositions. Legal re- A legal remainder of freehold must be supported by a mainder and previous estate of freehold, otherwise it can only be supexecutory interests.

ported as an executory devise.

And as no limitation can be a remainder following upon an estate less than an estate for life, so no limitation can be a remainder following upon a determinable fee, or any greater estate. Fearne, C. R. 225; Seymor's Case, 10 Co. 95, b.

But where an estate can take effect as a remainder, it will never be construed an executory devise or springing use: Carwardine v. Carwardine, 1 Ed. 27; Goodtitle v. Billington, Dougl. 725; Fearne, C. R. 386; the reason given being that “executory interests, not by way of remainder, unless engrafted on an estate tail, cannot be barred, and consequently there is a tendency in such interests to a perpetuity, which is contrary to the policy

of the law." Smith's Ex. Dev. 71. Incidents Contingent remainders can no longer fail by forfeiture, of remainders. surrender, or merger, but (except in cases within 40 & 41


Vict. c. 33) they will fail by the failure of the particular estate of freehold, before the remainder is ready to come into possession. Rhodes v. Whitehead, 2 Dr. & Sm. 532;

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Price v. Hull, 5 Eq. 399; Percival v. Percival, 9 Eq. 386;
Brackenbury v. Gibbons, 2 Ch. D. 417.

Contingent remainders of copyholds are liable to fail in the same way by failure of the particular estate before they have vested, see ante, p. 243.

This rule does not apply to equitable remainders, which are not remainders proper but in the nature of executory interests. Hopkins v. Hopkins, Ca. t. Talb. 44; 1 Atk. 581; Re Eddels Trust, 11 Eq. 559.

A legal estate outstanding in a mortgagee is sufficient to support the renainders. Astley v. Micklethwait, 15 Ch. D. 59.

The rule does not, of course, apply to personalty.

By 40 & 41 Vict. c. 33, which applies to wills executed or republished after the 2nd August, 1877, contingent remainders are, “in the event of the particular estate determining before the contingent remainder vests,” to take effect as executory limitations. See ante, p. 245.

An estate may, according to the events that happen, be An estate either a remainder or an executory devise. For instance, may beda if after life estates there is a devise to children in fee, and or an

executory if they die under twenty-one over, the devise over, if there devise, are children to take who die under twenty-one, would be to the

according an executory devise; yet the implied devise over, in case there were no children to take at all, would be a contingent remainder. Evers v. Challis, 18 Q. B. 224; 7 H. L. 531; Brookman v. Smith, L. R. 6 Ex. 291, p. 305.

A remainder must be distinguished from an immediate Remainder vested estate, subject to a term; thus, where an estate of

guished freehold is limited after a term, it is either a vested estate

immediate or an executory devise. For instance, a devise to A. for vested

estate suba term of eighty years, if he shall so long live, and after ject to a his death to B., gives B. strictly speaking an executory interest, since A. may live longer than eighty years, and the freehold would therefore be in suspense during the




from an


after pay.

ment of debts is

remainder of A.'s life. It has, however, been held that B. takes a vested interest, “ for the mere possibility that a life in being may endure for eighty years to come does not amount to a degree of uncertainty sufficient to constitute a contingency.” Fearne, C. R. 21; Napper v. Sanders, Hutt. 118, cit. 3 At. 781; Lord Derby's Case, cit. Lit. Rep. 370; Fearne, C. R. 22.

This applies, however, only “where the life cannot exceed the term, and the term must determine with the life.” It does not apply, for instance, where the term is only for sixty years. Beverley v. Beverley, 2 Vern. 131.

. Devise In the same way a devise, after payment of debts, is

not a remainder but an immediate vested interest. Barvested.

nardiston v. Carter, 1 P. W. 505; 3 B. P. C. 64; Bagshuw v. Spencer, 1 Ves, sen. 142; see 1 Coll. Jur. 378; and see

ib. 214. Remain- Again, dispositions by way of remainder may be inders and alternative tended to take effect only after the determination of prior contingent

partial interests, or they may be alternative contingent remainders intended to provide for the case of prior contingent limitations not taking effect. In the former case, if any of the intermediate limitations are void, the remainders fail with them; in the latter, the limitations are good if the events upon which they are to take effect happen. Brudenellv. Elwes, 1 East, 442; Crompe v. Barrow, 4 Ves. 681.

Thus, in a devise to A. for life, then to his first son for life, and after his decease to the first and other sons of such first son successively in tail, and in default of issue of A., or in case of his not having any at his decease over, if A. has a son and grandson, the devise over in default of issue of A. is a disposition by way of remainder of something not previously disposed of; while the devise, in case of his not having any issue at his decease, is an alternative contingent limitation, disposing of something previously


disposed of, in the event of that disposition failing in a particular way. Monypenny v. Dering, 2 D. M. & G. 145; Doe v. Challis, 18 Q. B. 224; 7 H. L. 531 ; Percival v. Percival, 9 Eq. 386.

And the same limitation may, according to the events that happen, be a disposition to take effect after the failure of prior limitations, or a substitutional limitation intended to meet the case of prior limitations never taking effect at all. For instance, a limitation in default, or for want of persons to take under prior limitations for life or in tail, takes effect either in default of persons to take the prior estates, or after the determination of their estates. Goodright v. Jones, 4 Mau. & S. 88; Lewis v. Waters, 6 East, 336; see Doe v. Dacre, 1 B. & P. 250; 8 T. R. 112. When a particular estate is limited upon a contingency, Whether a

continand the subsequent estates are limited as remainders upon gency runs

through a it, the contingency primâ facie applies to the whole series

whole of limitations. Davis v. Norton, 2 P. W. 390; Doe d. series of Watson v. Shipphard, Dougl. 75; Toldervy v. Colt, 1 Y. tions. & C. Ex. 240, 627; 1 M. & W. 250.

Similarly, when an interest is given to a person, and then in a certain event a different interest is given with limitations over, the contingency applies to all the subsequent limitations. Gray v. Golding, 6 Jur. N. S. 474; Cattley v. Vincent, 15 B. 198; Findon v. Findon, 24 B. 83; Lett v. Randall, 10 Sim. 112; Paylor v. Pegg, 24 B. 105. On the other hand, if the subsequent limitations, or Cases

where the any of them, can be looked upon as independent gifts, subsequent they will not be liable to the contingency of preceding

limitations gifts. Lethieullier v. Tracy, 3 Atk. 774; Amb. 204 ; pendent

gifts. Boosey v. Gardiner, 5 D. M. & G. 122 ; Doutty v. Laver, 14 Jur. 188; Partridge v. Foster, 35 B. 545; In re Blight; Blight v. Hartnoll, 13 Ch. D. 858.

In the same way, if a particular gift is expressed to


are inde.

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