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WHERE SURVIVORS WILL BE READ OTHERS.
1. If there is an absolute gift to several persons, with Gift to a gift to the survivors, if any die without issue, sur- if any die
several,and vivors must be construed in its ordinary sense.
issue, v. Stone, 3 Russ. 217; Ranelagh v. Ranelagh, 2 M. & K. to the
survivors. 441. Stead v. Platt, 18 B. 50; Greenwood v. Percy, 26 B. 572.
2. Where there is a gift over to take place only in case Gifts to be the event on which the property is limited to the first paid at
21, with a legatees, among whom there is to be survivorship, happens gift over if in respect of all the legatees, survivor will be construed under 21. other, so as not to cause an intestacy. For instance, if the bequests are to A., B., and C., payable at twenty-one, and if either die under twenty-one, his share to the survivors, and if two die under twenty-one, the whole to the survivor, and if all die under twenty-one, then over, the share of one dying under twenty-one would go to one who had predeceased him but attained twenty-one and to the survivor equally. Wilmot v. Wilmot, 8 Ves. 10; In re Jackson's Trust, 14 Ir. Ch. 472. The same construction was adopted in In re Connellan's Trust, 16 Ir. Ch. 524, though there was no gift over, but
quære. In these cases the testator intends the property to go over as a whole, or not at all. As the whole cannot go over where the event does not happen in respect of all the first legatees, there is no other disposition of the shares in respect of which it happens except among the first legatees themselves, and, in order to allow them to take, the word survivor must be read other. 3. Where there is a devise to sons and the heirs of Survivor
. their bodies, and if any die without issue to the survivors ship beand the heirs of their bodies, and if all die without issue tenants in over, survivorship will be referred to the stirpes and ferred to
not to the first takers, and the share of a son dying without issue will go among the issue of a son previously deceased and the surviving sons. Doe v. Waineright. 5 T. R. 427; Smith v. Osborne, 6 H. L. 376.
In such cases the testator has expressed his intention of benefiting the line of issue, and the survivorship contemplated is one between the respective stirpes and not between the first takers merely, and this, coupled with the gift over, which can only take effect if all the sons die without issue, is sufficient to enlarge the meaning of the word survivor.
It is immaterial whether the word is survivors or such
as survive. In re Tharp's Estate, 1 D. J. & S. 453. Gift over And the same construction will be adopted even if material.
there is no gift over to interpret the testator's intention. Harman v. Dickenson, 1 B. C. C. 91, see 34 B. 352; Williams v. James, 20 W. R. 1010; Tufnell v. Burrell,
20 Eq. 194. Gifts for 4. The same will be the case where the will gives life life remainder to estates with limitations expressly to issue, followed by a issue, if any die gift on failure of issue of any of the tenants for life to the without
surviving tenants for life for their lives and then to their issue, to the survi. issue, and an ultimate gift over on failure of issue of all vors for life, and
the tenants for life; and it makes no difference whether then to
the gift be to survivors for life and then to their issue, or to survivors in like manner as the original shares were given. Lowe v. Land, 1 Jur. 377; In re Keep's Will, 32 B. 122; In re Tharp's Estate, 1 D. J. & S. 453; Holland V. Allsop, 29 B. 498; Hurry v. Morgan, L. R. 3 Eq. 152; Badger v. Gregory, 8 Eq. 78; Waite v. Littlewood, 8 Ch. 70; In re Palmer's Trusts, 19 Eq. 320; Wake v. Varah, 2 Ch. D. 318; In re Row's Estate, 43 L. J. Ch. 347.
There is here the same evidence of intention to benefit the issue, and the gift over shows that survivorship is
contemplated, not merely between the first takers, but between the respective stirpes.
5. Whether the same construction would be adopted in Whether the absence of an ultimate gift over seems unsettled. The
gift over it observations made in Wake v. Varah, 2 Ch. D. 348, and necessary. Beckwith v. Beckwith, 46 L. J. Ch. 97, are in favour of a strict construction of the word survivors under such circumstances. See, too, Milsom v. Awdrey, 5 Ves. 465.
But the attention of the Court in those cases was not called to the cases in which a gift over has been held to be immaterial. Hodge v. Foote, 34 B. 349; Re Beck's Trusts, 16 W. R. 189; 37 L. J. Ch. 233; In re Arnold's Trusts, 10 Eq. 252 ; recently followed in In re Walker; Church v. Tyacke, 12 Ch. D. 205.
Re Corbett's Trusts, Johns. 591, may be supported on the ground that the testator expressly provided for the surviving issue of the children of the tenants for life, thus excluding an intention of also providing for children of tenants for life dying before the period of accruer, besides which the case was one in which absolute gifts were subsequently cut down by settlement.
In Beckwith v. Beckwith the gift was to “other daughters Others surviving,” so that to give surviving a stirpital construction surviving." would in effect have been to reject the word entirely.
If accruing shares are given to the survivors or survivor Effect of for their joint lives, and after the decease of the survivor gift over to the children of the survivors or survivor, the surviving death of
the surtenant for life will take the whole for life, though vivor. probably the children of predeceasing tenants for life would take on his death. Winterton v. Crawfurd, 1 R. & M. 407.
6. But if the gift to survivors is not given in the same when the manner as the original shares, there is no evidence that gift to sur- .
vivors is stirpital survivorship was intended, and the word will be not sub
ject to the construed strictly.
same limi- Thus, where the prior limitations being for life with tations as the original
remainder to children, the gift is to survivors absolutely, gift.
and not to survivors for life, and then to their children, although there is a gift over of the whole upon death of all without issue, the intention to benefit the lines of issue is not sufficiently indicated, and survivors will be construed strictly. Twist v. Herbert, 28 L. T. N. S. 489.
Survivors must, à fortiori, be strictly construed where there is no gift over. Leeming v. Sherratt, 2 Ha. 14; Lee v. Stone, 1 Ex. 674; Re Corbett's Trusts, Johns. 591,
the residuary gift. Browne v. Rainsford, I. R. 1 Eq. 384. General In such a case, however, there may be a general inintention to benefit tention expressed to benefit the stirpes and not merely stirpes.
the surviving parents ; for instance, by a preliminary statement of intention that the property in question is to be divided among the children of several parents, without any mention of survivorship between the parents.
Hawkins v. Hamerton, 16 Sim. 410. Effect of 7. It seems when the original limitations are for life gift to parents for with remainder to children in tail and if any of the life, re
tenants for life die without children to the surviving mainder to children in tenants for life in tail, followed by a gist over in case of a tail, and if
total failure of issue of all the tenants for life, the stirpital rents die without
construction would not be adopted. See Maden v. Taylor, children to 45 L. J. Ch. 569. See, however, Cooper v. Macdonald, 16 viving
Eq. 258. parents in
8. Where the shares of some members of the class are Some
settled and others not, and the gift over is to the survivors sbares settled, of the class in the same way as the original shares, the others not.
case is more difficult.
In such a case the word survivors was construed others, chiefly by the force of a gift over in default of all the objects intended to be benefited. Lucena v. Lucena, 7
Ch. D. 255. Where the If the gift is to a class of sons and daughters, and the
children to the surviv.
to survivors sub
daughters' shares are by a separate clause directed to be shares of settled and given over in default of issue to the surviving are directsons and daughters in the same way as the original shares, ed to be survivors would possibly not be construed as others. De with a gift
over if they Garagnol v. Liardet, 32 B. 608; Re Usticke, 35 B. 338; die without see Nevill v. Boddam, 28 B. 554. On the other hand, if the shares of daughters dying ing song
and without issue given to surviving members of the class daughters. are directed to be for the benefit of the other shares, survivors will be read others, at any rate as regards the settled shares. Jackson v. Sparks, 38 L. J. Ch. 75; and see the judgment of the M. R. in Lucena v. Lucena, supra.
9. Upon similar principles, if there is an absolute gift Gift over to several, with a gift to their issue if they die leaving issue, and if any die without issue to the survivors, subject ject to the to the same executory limitation in favour of issue as the defeasi.
bility as original shares, survivorship will be referred to the stirpes, the origiand not merely to the individuals. Eyre v. Marsden, 2 nal gift. Kee. 564 ; 4 M. & Cr. 231; Cross v. Maltby, 20 Eq. 378; see Le Jeune v. Le Jeune, 2 Kee. 701.
But if the gift to survivors is absolute, and not subject to the same defeasibility in favour of issue as the original shares, survivors must be construed strictly, though there may be a gift over in the event of the death of all the legatees without issue. Ferguson v. Dunbar, 3 B. C. C. 468, n.
Under a gift in default of children of a daughter to the others or other of his children by name, equally between them if more than one, the word others will not be read as survivors. In re Hagen's Trusts, 46 L. J. Ch. 665.
Nor under a gift to a son by name and the survivors of the testator's daughters is it necessary that the son should survive in order to take. In re Bates, 11 W. R. 768.