since nothing is given to parents then dead. Attwood v. Alford, L. R. 2 Eq. 479. In the same way a gift to parents "then living," and the issue of those then dead, is a direct substantive gift to the issue. Smith v. Smith, 5 Ch. 342; Martin v. Holgate, L. R. 1 H. L. 175; see Ashling v. Knowles, 3 Dr. 593; Etches v. Etches, 3 Dr. 447. parents the issue then dead. a. If the gift is to parents and issue in one continuous Gifts to sentence-as, for instance, to children then living, and then the issue of those then dead-the issue of parents deceased living, and at the date of the will take, though the issue may be of those directed to take only a parent's share, as this direction. will be satisfied by a stirpital distribution. Tytherleigh v. Harbin, 6 Sim. 329; Rust v. Baker, 8 Sim. 443; Bebb v. Beckwith, 2 B. 308; Coulthurst v. Carter, 15 B. 421; Faulding's Trusts, 26 B. 263; Philp's Will, 7 Eq. 151; Heasman v. Pearse, 7 Ch. 275. It seems the issue of a parent who died before the testator was born would not take. Wingfield v. Wingfield, 9 Ch. D. 658. the word If the gift is to my children then living, and the children Effect of of such of my said children as shall be then dead, the "gaid."" testator by using the term "said" children shows that he is contemplating a class of children living at the date of the will, and capable of taking under it, and therefore children of those dead at the date of the will will not be admitted. Re Thompson's Trust, 2 W. R. 218; 5 D. M. & G. 280; see Peel v. Catlow, 9 Sim. 372; Smith v. Pepper, 27 B. 86; Hall v. Woolley, 39 L. J. Ch. 106. On the other hand, if the gift is to brothers and sisters living at a particular time, and the children of such of the said brothers and sisters as should have died, and the testator has only one brother living at the date of the will, he cannot be referring to a class existing at the date of the will, and children of brothers and sisters dead at the date Gift to my daughters children. of the will will be admitted. Re Jordan's Trust, 2 N. R. 57; Giles v. Giles, 8 Sim. 360; see Jarvis v. Pond, 9 Sim. 549. If the children are expressed to be the children of and their parents, who are beneficiaries under the will; if, for instance, the bequest is to "my daughters and their children," the children of a daughter dead at the date of the will take nothing. Parker v. Tootal, 11 H. L. 143; see Crook v. Whitley, 26 L. J. Ch. 350; but see Clay v. Pennington, 7 Sim. 370. When the gift is sub b. When the gift is clearly substitutional, as in the case stitutional of a gift to a class or their issue, issue of members of the class dead at the date of the will will take. In re Sibley's Trusts, 5 Ch. D. 494; overruling Congreve v. Palmer, 16 B. 435. in the simplest form. Where such This construction may be aided by the context. Thus, if none of the members of the original class are alive at the date of the will, or if the original class is brothers and as are alive sisters, and the testator has only one brother living at the of the original legatees at the date of the will date of the will, children of those then dead will come in. do not satisfy the Gowling v. Thompson, 11 Eq. 366; see Barnaby v. Tassell, words of 11 Eq. 363; Jarvis v. Pond, 9 Sim. 549. gift. Where the c. Where the gift to the issue is in an independent gift to the clause, the question is whether the intention is to add legatees is fresh members to or substitute them for the original class. substituted in an inde pendent sentence. Direction that the legacy of a parent If the gift is to children living at the testator's death, with a direction that if any should happen to die in his lifetime, the "legacy" intended for such child should be for his issue, the word legacy shows that the testator should go meant to substitute only issue of parents who at the date of the will were capable of taking. Christopherson v. Naylor, 1 Mer. 320; Hunter v. Cheshire, 8 Ch. 751. It may be doubted whether Phillips v. Phillips, 13 W. R. 170; 10 Jur. N. S. 1173, and Parsons v. Gulliford, 10 Jur. N. S. 231, can stand with these authorities. to his children. stand in parents. The same rule applies if there is no direct gift to issue, Issue to but only a direction that issue of parents dying are to the place stand in the place of their parents, or to take their of their parents' share. Butler v. Ommaney, 4 Russ. 71; Gray v. Garman, 2 Ha. 268; Atkinson v. Atkinson, I. R. 6 Eq. 184; Re Hotchkiss's Trusts, 8 Eq. 643; Habergham v. Ridehalgh, 9 Eq. 395; Kelsey v. Ellis, 38 L. T. N. S. 471. Where the gift was to such of the children of the testator's sisters as should survive the tenant for life, followed by a direction that in case any of such children should be dead at the testator's decease leaving issue such issue should take the share of their deceased parent, the issue of a child dead at the date of the will was not included. West v. Orr, 8 Ch. D. 60; see Giles v. Giles, 8 Sim. 360. take the would have titled to if On the other hand, if the original gift is to a class, Issue to with a direction, that the issue of any dying in the testa- share their tor's lifetime, or before the period of distribution, should parents take the share their parents would have been entitled to been enif then living, the issue of those dead at the date of the living. will will be admitted, as the direction amounts to an independent gift, the word share being satisfied by a stirpital distribution. Loring v. Thomas, 1 Dr. & S. 497; Chapman's Will, 32 B. 382; Adams v. Adams, 14 Eq. 246. This rule has been applied where the original gift was to a class living at the death of the tenant for life. In re Woolrich; Harris v. Harris, 48 L. J. Ch. 321. In these cases it is not the share of the parents, or the share the parents are entitled to, which is given to the issue, but the share the parents would have been entitled to. In re Potter's Trusts, 8 Eq. 52, is a more difficult case, since there the gift was to nephews and nieces, and in case of the death of any of his said nephews and nieces leaving issue, such issue to take the share their parents would have taken if living, the word said showing K K Contingency legatees does not attach to that the testator referred to nephews and nieces capable of taking under the will. See Re Thompson's Trust, 2 W. R. 218; 5 D. M. & G. 280. Perhaps issue of parents dead at the date of the will would not be admitted where other express provision is made for such issue. Waugh v. Waugh, 2 M. & K. 41. Whether the contingency of the original gift attaches to the substituted gift: When there is a life interest followed by a contingent attaching gift to certain persons, and a gift if they die before the to original contingency to their children, the contingency attaching to the gift to the parents does not attach to that to the substituted children, and the children take vested interests, although legatees. they may not survive the contingency upon which the gift to the parents was to take effect. For instance, if the bequest is to A. for life, then to such of my nephews as may be then living, and the children of such as may be then dead, the children take vested interests upon their parents' death, whether they survive A. or not. Where the substituted 1. This is clearly settled if the children take original legatees shares. Martin v. Holgate, L. R. 1 H. L. 175; Re Orton's take origi- Trust, 3 Eq. 375; Burt v. Hillyar, 14 Eq. 160. nal shares. Whether rule is the substitu tional gifts. 2. But if the gift to the children is substitutional there same with appears to be some difficulty. On the whole, the current of recent authority seems to be in favour of the same rule in the case of substitutional as of original gifts. Masters v. Seales, 13 B. 60; Re Turner, 34 L. J. Ch. 660; Lanphier v. Buck, 2 Dr. & Sm. 484; Merrick's Trusts, L. R. 1 Eq. 551. But a difficulty is created by the case of Pearson v. Stephen in the House of Lords, 5 Bl. N. S. 203. There there was a gift to S. during coverture, and upon the death of her husband in her life to her absolutely, but if her husband should survive her, then to the testator's five sons and their respective issue per stirpes and not per capita; and it was held that in the event of S. dying in her hus band's life, the sons of the testator living at such event would be absolutely entitled, but if any of the sons should die in the lifetime of S. leaving issue, such issue, if living at the death of S., would be entitled to the share their parents would have taken; but see the remarks of Kindersley, V.-C., on this case in Lanphier v. Buck, 34 L. J. Ch. 659. order to take must their 3. There is, however, this difference between a substi- Substituted legatutional and original gift to the children, that in the tees in former case only those children who survive the parents will take, while in the latter all the children will take, survive whether they survive the parents or not; but see Humfrey ancestor. v. Humfrey, 2 Dr. & Sm. 129. "The substitution takes place at the death of the nephew or niece. And then I see very good ground for saying there by reason of its being substitution, you will not substitute dead people forthe nephew or niece who has been living up to that time and has then just died." Lanphier v. Buck, 2 Dr. & Sm. 484; 34 L. J. Ch. 657; Re Turner, 34 L. J. Ch. 660; Merrick's Trusts, L. R. 1 Eq. 551; Thompson v. Clive, 23 B. 282; Crause v. Cooper, 1 J. & H. 207; Bennett's Trusts, 3 K. & J. 280; Hurry v. Hurry, 10 Eq. 346; Hobgen v. Neale, 11 Eq. 48; Heasman v. Pearse, 11 Eq. 522; 7 Ch. 275; In re Haskett Smith's Trusts, 26 W. R. 418. Upon a similar principle, under a gift in certain events to a class and the issue of such of them as shall then be dead, members of the class dying without issue before the events happen take a share. In re Wood; Moore v. Bailey, 29 W. R. 171. Whether the original and substituted class are mutually exclusive: When the gift is to a class or their issue, the further Whether original question arises whether the original and substituted and substilegatees form two mutually exclusive classes, so that no tees can substituted legatees can take if there are any members take to tuted lega gether. |