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ultimate

be made contingent from motives applicable to that gift only, subsequent gifts will not be contingent. Horton v.

Whittaker, 1 T. R. 346. Subse- And if subsequent gifts can be read as given, subject to guintes its the prior limitations, they will not be liable to the consubject to prior con- tingencies of prior gifts. Sheffield v. Earl of Coventry, 2 tingent gifts. D. M. & G. 551; see Pearson V. Rutter, 3 D. M. & G.

398; 6 H. L. 61 ; Hole v. Davies, 34 B. 345; ante, pp. 404,

405. Where the

In the same way, when there has been a gift in one limitation event to one set of issue in fee, and upon another event sums up the prior

to another set of issue in tail, a gift over in default of contin

such issue may be construed as referring to a failure of gencies.

all the prior limitations, and not merely as a remainder dependent upon the limitations to the second class of

issue taking effect. Doe d. Lees v. Ford, 2 E. & B. 970. Whether As to whether in a devise of Whiteacre to A. and his an ultimate limitation issue, and then to B. and his issue, and of Blackacre to applies to B. and his issue, and then to A. and his issue, and in deof property fault of issue of A. and B. over, the ultimate gift includes which has been given both estates, see Gordon v. Gordon, L. R. 5 H. L. 254 ; in two independent see, too, Adshead v. Willets, 29 B. 358.

lines.

DIVESTING.

in certain events is

A gift

A vested interest which is given over in certain events which is given over is divested, if those events happen, though the gift over

may be void, or though the legatee to take under the gift divested if over dies before the testator. Doe d. Blomfield v. Eyre,

5 C. B. 713; Robinson v. Wood, 6 W. R. 728; 27 L. J. Ch. happen.

726; OʻMahoney v. Burdett, L. R. 7 H. L. 388. In Jackson v. Noble, 2 Kee. 500, the question was, whether the event upon which the gift over was to take effect had happened, and it was held it had not, the period during

those events

.

which it was to take effect being limited to the lives of the persons to take under the gift over.

But if the contingency of there being a person to take living at the time can be looked upon as part of the event upon which the gift over is to take effect, the original gift will remain if there is no such person. Crozier v. Crozier, 15 Eq. 282.

Upon this principle, under a gift to the testator's two sons and daughter in equal shares, with a gift over of the daughter's share, if she should die without issue, to the survivors or survivor of the sons, it was held that the daughter having survived the sons took absolutely. Jones v. Davies, 28 W. R. 455; see Eaton v. Barker, 2 Coll. 124. In tbe case of a substitutional gift to several persons, Substitu;

tional gifts or to such of them as may survive the tenant for life, if to survi. none survive the tenant for life the original gift remains, vors. whether the gift is vested or contingent. Sturgess v. Pearson, 4 Mad. 411; Wagstaff v. Crosbie, 2 Coll. 746 ; Re Saunders' Trust, L. R. 1 Eq. 675.

It is indifferent whether the gift is in the simple form " to several or the survivors," or whether there is an express gift over in the event of any members of a class dying before the tenant for life to the survivors; in such a case, if none survive the tenant for life, the original gift remains. Harrison v. Foreman, 5 Ves. 207; Cambridge v. Rous, 25 B. 409; Marriott v. Abell, 7 Eq. 478.

Similarly the shares of parents given in the event of Substitutheir dying before the tenant for life to their children, gists to remain absolute if there are no children. Smither v. Wil children. lock, 9 Ves. 233; Hodgson v. Smithson, 21 B. 356; 8 D. M. & G. 604.

An important distinction must, however, be drawn Distinction between a gift over of the whole of a prior interest in

gift over certain events, and a gift over of a portion of the prior in certain

tional

between a

interest.

the whole interest in certain events. In the latter case the prior and of a partial

interest is divested only so far as is necessary to give effect to the gift over.

Thus, if there is a devise in fee, followed by a gift over to another person for life if the devisee dies without issue, the devisee in that event, nevertheless, takes the fee, subject only to the life interest : Gatenby v. Morgan, 1 Q. B. D. 685.

THE CONSTRUCTION OF GIFTS OVER.

may take

Gifts over When property is given over in one event to one person, on two different

and in another event to another, and both events occur events to different

simultaneously, the original gift is not divested. Ormerod persons v. Riley, 12 Jur. N. S. 112. See Drennan v. Andrew, 36 where both events L. J. Ch. 1. happen.

When there is a gift over upon a certain contingency, The exact event must it will not take effect unless the exact contingency happens. happen in order that Thus, if there is a gift to A. with a gift over if he dies in a gift over the testator's lifetime, and A. dies simultaneously with the effect.

testator, the gift over does not take effect. Wing v. Angrave, 8 H. L. 183.

There are here two distinct and independent events, in which the gift to A. will lapse, death in the testator's lifetime and death simultaneously with the testator, one of which the testator has contemplated and the other not. No doubt, it may be said, that the gift over might be read as equivalent to "if A. does not survive me to B. ;” but this would be making a will for the testator, since the event that has happened does not include the event contemplated, and it cannot be said, that if the gift over was to have effect if A. died in the testator's lifetime, a fortiori it was to have effect if A. died simultaneously with the testator. The most that can be affirmed is that if the

where the events

upon

testator could be consulted he would probably say, that the gift over was to have effect equally in either event.

But where the events which happen include the events Cases contemplated by the testator, so that it may be said, if the

which hapgift was to go over in the events mentioned, à fortiori it

pen include must have been meant to go over in the events that have the events happened, the gift over will take effect. This is the rule which the

gift over is mentioned by Cicero as having been adopted in the case of to take

effect. Curius v. Coponius : M. Curium, qui hæres institutus esset ita, 'mortuo postumo filio,' cum filius non modo non mortuus, sed ne natus quidem esset, hæredem esse oportere.Pro. Cọc18.

And the test of the applicability of the rule will be found in the possibility of putting the argument in its favour in the form of non modo non sed ne quidemif, for instance, property is given to A. if he fulfil certain conditions, and if he neglect to fulfil them to B., and A. dies in the testator's lifetime, the gift over to B. will take effect, although, strictly speaking, the testator never contemplated that the performance of the conditions annexed to the gift to A. might become impossible through A.'s death in his lifetime. The preceding estate being out of the way, in any mode whatever, the remainder takes effect; and the rule applies whether the gift is void in its inception or becomes void in its result. See Jones v. Westcomb, 1 Eq. Abr. 245, pl. 10; Gulliver v. Wickett, 1 Wils. 105; Avelyn v. Ward, 1 Ves. sen. 420; Meadows v. Parry, 1 V. & B. 124; Warren v. Rudall, 4 K. & J. 603, and 9 H. L. 420; Brock v. Bradlcy, 33 B. 670.

The failure of the prior gift in these cases was not owing merely to the fact that the first taker did not survive the testator, as in the cases under the former head, but to that fact, plus the non-performance of the condition, since, if the first taker had survived the testator he would not have

over upon

under a

taken an indefeasible interest till the condition had been satisfied.

So a gift to several persons by name, with a gift over if they should die in the testator's lifetime, will take effect with regard to the shares of those who are dead at the date

of the will. Barnes v. Jennings, L. R. 2 Eq. 448. Construc- If there is a gift to a person with a gift over in the tion of gifts

event of his death in a particular manner, as for instance death of

to A., and if he dies under twenty-one to B.:the legatee

1. If A. dies under twenty-one, in the lifetime of the given age. Case where testator, the gift over takes effect. Darrel v. Molesworth, the legatee 2 Vern. 378; Willing v. Baine, 2 Eq. Ab. 545, pl. 22; 3 dies before the testator P. Wms. 115; Humphreys v. Howes, 1 R. & M. 639; Re under the given age.

Green's Estate, 1 Dr. & Sm. 68; Rackham v. De la Mare, 2 D. J. & S. 74. In this case the failure of the prior gift is due not to lapse merely, since if A. had survived the testator the gift to him would not have been indefeasible

until he had attained twenty-one. Where the 2. If A. dies over twenty-one in the testator's lifetime, legatee dies

the gift over does not take effect. Williams v. Chitty, 3 given age Ves. jun. 545; Doo v. Brabant, 3 B. C. C. 393; 4 T. R.

706; Humberstone v. Stanton, 1 V. & B. 385; M'Carthy v. M'Carthy, 3 L. R. Ir. 317.

In this case since A., if he had survived, would have taken an indefeasible interest, the failure of the gift to him is due to lapse only, which the testator cannot be supposed to have contemplated, and the event on which alone there is a bequest to the claimant has not occurred.

Where, however, the prior gift is to a class, the fol. lowing rules may be laid down; suppose a gift to children

a class, followed by a gift over, if they die under twenty-one :

1. If the contemplated class never comes into existence, followed by

the gift over takes effect on the principle already stated, a gift over ante: Jones v. Westcomb, 1 Eq. Ab. 245, pl. 10; Mac

over the

testator.

as

Gift to a class

if all die

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