the whole and of a partial interest.

interest in certain events. In the latter case the prior 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.

Gifts over on two different events to different

persons where both events happen.

The exact

order that

THE CONSTRUCTION OF GIFTS OVER.

When property is given over in one event to one person, and in another event to another, and both events occur simultaneously, the original gift is not divested. Ormerod v. Riley, 12 Jur. N. S. 112. See Drennan v. Andrew, 36 L. J. Ch. 1.

When there is a gift over upon a certain contingency, event must it will not take effect unless the exact contingency happens. happen in Thus, if there is a gift to A. with a gift over if he dies in the testator's lifetime, and A. dies simultaneously with the testator, the gift over does not take effect. Wing v. Angrave, 8 H. L. 183.

a gift over may take effect.

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, à fortiori it was to have effect if A. died simultaneously with the testator. The most that can be affirmed is that if the

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

where the

events which happen include

upon

But where the events which happen include the events Cases contemplated by the testator, so that it may be said, if the gift was to go over in the events mentioned, à fortiori it 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 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. Cœc. 18.

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 quidem―if, 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. Bradley, 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

effect.

Construction of gifts over upon death of the legatee under a

dies before

under the

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.

If there is a gift to a person with a gift over in the event of his death in a particular manner, as for instance to A., and if he dies under twenty-one to B.:

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 the testator P. Wms. 115; Humphreys v. Howes, 1 R. & M. 639; Re 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.

given age.

Where the legatee dies over the

2. If A. dies over twenty-one in the testator's lifetime, 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.

before the testator.

Gift to a class

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 following rules may be laid down; suppose a gift to children as 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

if all die

under 21,

where the

kinnon v. Sewell, 2 M. & K. 202. In these cases the condition is more than fulfilled, since the events that have class never happened include the condition upon which the property existence. is given over.

comes into

under 21

testator.

2. If members of the class come into existence, but die If all die under twenty-one in the testator's lifetime. In this case, before the too, it seems the gift over will take effect, and the same arguments would apply as to the previous case, with the additional argument that the condition is in fact literally fulfilled. It is not by reason of lapse that the gift over takes effect, since if the legatees in question had survived the testator, the gift over would still have held good in the events that have happened. See Brookman v. Smith, L. R. 6 Ex. p. 303; Mackinnon v. Peach, 2 Kee. 555; but see Greated v. Greated, 26 B. 621.

before the

but not

3. If members of the class come into existence, survive If all die twenty-one, and die in the testator's lifetime, the gift over testator, will not take effect: Tarbuck v. Tarbuck, 4 L. J. Ch. 129; under 21. Brookman v. Smith, L. R. 6 Ex. 291; ib. 7 Ex. 271; or, to state the rule more generally, if all conditions are fulfilled which would entitle those taking under the prior gift to indefeasible interests, supposing they had survived the testator, if in other words the failure of the prior gift is due to lapse and lapse only, the gift over does not take effect.

GIFTS OVER UPON DEATH TREATED AS A CONTINGENT

EVENT.

case of the

1. If there is an immediate gift to A., and a gift over Gift over in in case of his death, or any similar expression implying legatee's the death to be a contingent event, the gift over will take death. effect only in the event of A.'s death before the testator. Lord Bindon v. Earl of Suffolk, 1 P. Wms. 96; Turner

Gift over at the lega

v. Moor, 6 Ves. 556; Cambridge v. Rous, 8 Ves. 12; Crigan v. Baines, 7 Sim. 40; Taylor v. Stainton, 2 Jur. N. S. 634; Ingham v. Ingham, I. R. 11 Eq. 101.

This rule applies though the gift over may be to persons" then living," or to survivors. Trotter v. Williams, Prec. Ch. 78; King v. Taylor, 5 Ves. 806.

So, too, a gift to several, with a gift over in case of the death of either in the lifetime of the others or other, was confined to death before the testator, the death of one before the other being a certain and not a contingent event. Howard v. Howard, 21 B. 550.

It makes no difference that the gift in case of A.'s death is to his children. Slade v. Milner, 4 Mad. 144; Schenck v. Agnew, 4 K. & J. 405.

And this construction has been adopted where the gift over was "in case of his decease or at his decease." Arthur v. Hughes, 4 B. 506.

But, as a rule, when there is a gift to A. indefinitely, tee's death, followed by a gift at his decease, A. will take only a life interest. Constable v. Bull, 3 De G. & S. 411; Waters v. Waters, 26 L. J. Ch. 624; Adams' Trusts, 14 W. R. 18; Joslin v. Hammond, 3 M. & K. 110; Reid v. Reid, 25 B. 469; Bibbens v. Potter, 10 Ch. D. 733.

General intention that the

gift was to take effect after A.'s death.

2. A gift over "in case of the death of A." has been construed as equivalent to "after his death" in the following cases :

a. Where the gift is only of a life interest, and the remainder would otherwise be undisposed of. Smart v. Clark, 3 Russ. 365; Tilson v. Jones, 1 R. & M. 553; Ingham v. Ingham, I. R. 11 Eq. 101.

b. Where the testator has given the absolute interest in another legacy in express terms, or has shown an intention to provide in all events for the person to take "in case of the death of A.," or has expressly provided for the death of the legatee in his lifetime with regard to another legacy