Ultimate gift over

issue

to his children, in order to provide for the children of A., if he dies under twenty-one leaving children: Home v. Pillans, 2 M. & K. 15.

It seems the same would be the case if the person to take under the gift is the widow of the legatee. Randfield v. Randfield, 8 H. L. 225.

The gift over upon death without issue cannot, however, be restricted to the time of vesting, where there is an express gift over upon death merely, before the time of vesting. Martineau v. Rogers, 8 D. M. & G. 328.

Whether the defeasibility would be limited where the gift over is to strangers is more doubtful. See Andrews v. Lord, 6 Jur. N. S. 865; and see Dowling's Trusts, 14 Eq. 463; Smith v. Spencer, 6 D. M. & G. 631.

9. Where there is a gift to two persons, and if either upon death dies under twenty-one without issue to the survivor, and without if both die without issue over, the defeasibility will be rerestricted stricted to the age of twenty-one. Kirkpatrick v. Kilpatrick, 13 Ves. 476; Thackeray v. Hampson, 2 S. & St. 214; see Else v. Else, 13 Eq. 196.

by prior gift.

Gift over upon mar

confined to

10. When there is a gift at twenty-one, or upon marriage with- riage with consent, a gift over upon marriage without conour consent sent has been confined to the age of twenty-one. Desbody marriage v. Boyville, 2 P. Wms. 547; Knapp v. Noyes, Amb. 662; Osborn v. Brown, 5 Ves. 527; West v. West, 4 Giff. 198; Duggan v. Kelly, 10 Ir. Eq. 473.

under 21.

11. It may be noticed that where there is a gift to several, and in case of the death of any to the survivors, and if they die without children over, the gift, in case of death, will not be extended to mean death at any time, nor will the gift upon death without children be confined to such death in the lifetime of the testator. Clarke v. Lubbock, 1 Y. & C. C. 492; Child v. Giblett, 3 M. & K.

CHAPTER XXXVII.

491

SUBSTITUTION.

tion de

EVERY executory limitation intended to destroy prior Substituinterests in certain contingencies is in the widest sense fined. substitutional. The term is, however, generally applied to limitations intended to provide for the death of prior legatees before the period of distribution.

The simplest form of substitutional gift, introduced by the word "or," as for instance, to class A. or class B., generally involves the relation of greater to smaller class, or of ancestor to descendant.

substitu

It is, however, probable that a simple gift to A. or B. Whether a gift to A. would now be considered substitutional. See Carey v. or B. is Carey, 6 Ir. Ch. 255; see, however, Longmore v. Broome, tional. 7 Ves. 128; Miller v. Chapman, 24 L. J. Ch. 409; Maude v. Maude, 22 B. 290.

But a gift to A. or B., or to A. or his children, as C. may appoint, is not substitutional, and in default of appointment it goes among all the appointees equally. Penny v. Turner, 2 Ph. 493; White's Trusts, Joh. 656.

A gift of £100 a-piece to each of the children, grandchildren, or other descendants of A., includes all the descendants. Solly v. Solly, 5 Jur. N. S. 36.

Gift to A.

or B., as C. may ap

point, is

not substitutional.

When the contingency of surviving the period of dis- Contintribution is applied both to the original and substituted gency of surviving class; if, for instance, the gift is to parents or their children the period living at the decease of the tenant for life, the gift will bution

of distri

applied to

original and sub

stituted legatees. "Or" changed

into "and."

Gifts to persons

66

then "

their issue.

nevertheless be construed as substitutional. Congreve v. Palmer, 16 B. 435; Atkinson v. Bartrum, 28 B. 219.

In such a case, however, if there is anything to show that the original and substituted class are to take coRichardson v. ordinately, "or" will be read "and." Spraag, 1 P. Wms. 433, where the gift was to such of the testatrix's daughters, or daughters' children, as should be living at her son's death, "without considering any superiority or eldership whatever." See Shand v. Kidd, 19 B. 310; In re Cleland's Trusts, 7 L. R. Ir. 74.

And where the direction was to pay a sum of money after the death of a tenant for life, "to all and every the testatrix's nephews and nieces, to wit, A. or her children, B. or her children," etc., to be equally divided between them, "or" was read "and;" the words under the videlicet being only an expanded description of the persons to take. Eccard v. Brooke, 2 Cox, 213.

So, too, where the gift is to such of several persons as should be living at the testatrix's decease, or the issue of such of them as should be married, "or" will be read "and." Horridge v. Ferguson, Jac. 583.

Upon the same principle, a gift to children living at the period of distribution, or their issue, will be construed as a living, or gift to children then living, and the issue of those then dead, including issue of those dead at the date of the will, but not, it would seem, of those who were dead before the testator was born. King v. Cleveland, 4 De G. & J. 477 ; Philp's Will, 7 Eq. 151; Burt v. Hillyar, 14 Eq. 160; Wingfield v. Wingfield, 9 Ch. D. 658.

Substitu

tion dis

over to

A substitutional gift, substituting one set of legatees for tinguished others dying before the period of distribution, must be from gift distinguished from an executory gift over intended to take take place effect at any time. Thus, a gift to children living at a particular time, with a gift over, if any such children die leaving issue to their issue, is an executory limitation to

at any

time.

take effect at any time. La Roche v. Davies, 3 Y. & C. Ex. 612, n.; Ex parte Hunter, 3 Y. & C. Ex. 610; Howes v. Herring, 1 M'Cl. & Y. 295.

On the other hand, if the gift is to children living at the period of distribution, with a gift to their issue if any such children die before becoming entitled, the gift to the issue will be construed as substitutional, since children, living at the period of distribution, could not die without becoming entitled. Jeyes v. Savage, 10 Ch. 555; see Giles v. Giles, 8 Sim. 360.

tion dis

absolute

A substitutional gift must further be distinguished Substitufrom those cases where after an absolute gift to a class the tinguished shares of females, members of the class, are directed to be from an settled for life, with remainder to children. In the latter gift with a case the gift may possibly fail by the death of the donee to settle. before the testator. Stewart v. Jones, 3 De G. & J. 532 ; In re Speakman; Unsworth v. Speakman, 4 Ch. D. 620.

On the other hand, a substitutional gift will take effect, though the original donee dies before the testator.

direction

to A. or his

Thus a direct gift to A. or his children goes to A. if Direct gift he survives the testator, and to his children if he does children. not. Montagu v. Nucella, 1 Russ. 165; Salisbury v. Petty, 3 Ha. 86; Whitcher v. Penley, 9 B. 477.

to A. or his

Similarly, if there is a life interest, and then a gift to Future gift A. or his children, the substitutional gift takes effect children. whether A. dies in the lifetime of the testator or the tenant for life. Girdlestone v. Doe, 2 Sim. 225; Porter's Trusts, 4 K. & J. 188; Habergham v. Ridehalgh, 9 Eq. 395; Hobgen v. Neale, 11 Eq. 48; see In re Dawes' Trusts, 4 Ch. D. 210.

As to the effect of the death of some of the original legatees before the testator:

substituted

It is settled that where the gift is to a class of parents, Whether with a substitutional gift to the children of parents dying legatees before the period of distribution, children of parents who for original

can take

legatees

who die

die after the date of the will, and before the testator, will

before the take. Smith v. Smith, 8 Sim. 353; Jones v. Frewin, 12

testator's

death.

Case where the original class is

persons

W. R. 369; 3 N. R. 415; Re Hotchkiss's Trusts, 8 Eq. 643; Habergham v. Ridehalgh, 9 Eq. 395.

Though, of course, if the original gift is to a class living at the testator's death, or at some other period, and confined to the substitutional gift is expressly confined to the children of such persons, the substitution can have no effect with tor's death, regard to those who never become members of the original class. See Shergold v. Bone, 13 Ves. 370; Smith v. Farr, 3 Y. & C. Ex. 328.

living at the testa

Where the original gift is to named persons.

Where the original gift is to a class.

When the substituted

Whether there can be substitution in respect of legatees dead at the date of the will:

1. When there is a gift to several persons nominatim, with a substitution of their issue in the event of their death, the fact that one of the persons so named is dead at the date of the will will not prevent his issue from taking. Hannam v. Simms, 2 De G. & J. 151; Ive v. King, 16 B. 46; Hobgen v. Neale, 11 Eq. 48; see Barnes v. Jennings, L. R. 2 Eq. 448.

2. If, however, the original gift is to a class, with a substitutional gift to issue, the question is whether the issue take a share which has been given to a parent who is contemplated as capable of taking under the will, or whether they take a share which has not been previously given to their parent. In the former case, issue of parents dead at the date of the will will not take, in the latter they will.

The important point is not whether the gift itself is substitutional, but whether the interests of persons who are contemplated as capable of taking under the will are given in the event of their death to substituted legatees.

Thus, though a gift to such of a class as may be then legatees living, or the issue of any then dead, is strictly substitutake origi- tional, the issue, if they take at all, take original shares,

nal shares.