Stone, and

Robertson.

(iv.) Where there are none of the indications of inten- Crowder v. tions above mentioned, it seems doubtful what the rule Young v. would be. Crowder v. Stone, 3 Russ. 217; and Young v. Robertson, 4 Macq. 314, appear to be in direct conflict on the point, and the latter being a Scotch case, it is difficult to say how far its authority would be followed, especially as it is in other respects not entirely in harmony with the current of English authority. As far as principle or convenience goes the arguments seem to be fairly balanced.

A gift over upon death without issue means death without issue at any time, in the absence of an indication of intention to limit the period of defeasibility. The class of survivors, therefore, would have to be fixed whenever the contingency happens, and there seems no reason for saying that the mere limiting of the period of defeasibility should introduce a contingency into the bequest to survivors and make the gift of accruing shares conditional upon surviving the period of defeasibility.

The gift over to survivors, being upon death without issue, it is the failure of issue of members of the original class which is the leading motive in the testator's mind, and not death before the period of enjoyment. The share is given to survivors not because the original members of the class do not live to enjoy it, but because they have no children to benefit. The intention is to benefit not only the original class but their children, whereas, if the survivors are not fixed till the time when the shares become indefeasible, children of such members of the original class as die before that time will take no interest in the shares of those who die without issue, an argument which, as already remarked, becomes conclusive if there is a prior gift to the children of those who die leaving children.

On the other hand, if the shares go over at once, and

construc

tively

limited.

several die without issue in the lifetime of the tenant for life, the representatives of the longer livers will take more than the representatives of those dying previously, while the representatives of the person dying first will take nothing, and it may be said that this can hardly have been the testator's intention; but he would probably have provided for such a contingency if he had contemplated it, and his omission to do so ought not to affect the construction of the will.

On the whole, however, it must be admitted that the balance of recent authority is in favour of the principle adopted in Young v. Robertson. See the opinion of the V.-C. Malins, 7 Eq. 483, 484.

Case when d. What the case would be when, the gift being upon the period of defeasi- failure of issue of any of the legatees to the survivors, bility is the Court limits the period of defeasibility by construction to the lifetime of the tenant for life, there is no authority to show. In such a case it would seem the argument above mentioned in favour of immediate accruer would apply with greater force, as the period of defeasibility is only remotely present to the testator's mind.

Accrued are not

subject to

the defea sibility of original shares

without

express words.

ACCRUED SHARES.

Clauses in a will disposing of the shares of devisees and legatees dying before a given period or event, do not without a positive and distinct indication of intention extend to shares which have once accrued under those clauses so as to pass them a second time. Ex parte West, 1 B. C. C. 575; Melsom v. Giles, L. R. 5 C. P. 614; ib. 6 C. P. 532; ib. 6 H. L. 24.

Therefore accrued shares will not pass under the word share or portion. Cambridge v. Rous, 25 B. 416; Bright v. Rowe, 3 M. & K. 316.

But accrued shares will go with original shares if there is an intention expressed that they should do so.

shares directed to

1. If, for instance, accrued shares are directed to go Accrued in the same manner as original shares. Cursham v. Newland, 2 B. 145; Milsom v. Awdry, 5 Ves. 465; Eyre v. go as original Marsden, 4 My. & Cr. 231; Melsom v. Giles, L. R. 6 shares. H. L. 24.

are to

tion of

crued

2. And when original and accrued shares have once Consolidabeen consolidated by a direction, for instance, that they original in the same manner, go there is no occasion to and accarry on any separate account of the original share from shares. the accrued share," and both will pass under the word share. Re Hutchinson, 5 De G. & S. 681.

shares.

3. If "his or her share or shares are spoken of Words applicable to where only one original share has been previously given, accrued so that the words cannot be satisfied reddendo singula singulis, as might be the case if the words were "his, her, or their, share or shares," accrued shares will be carried over. Wilmott v. Flewitt, 13 W. R. 856.

And, apparently, "share and shares and interest," would carry accrued shares. Douglas v. Andrews, 14 B. 347.

fund is

gate fund.

4. Accrued shares will pass where the testator, though Where the he speaks of individual shares, yet shows that he looks treated as on the fund as existing at the period of distribution as an aggre an aggregate and previously undivided fund by speaking of it, for instance, as the trust fund. Worlidge v. Churchill, 3 B. C. C. 465; Leeming v. Sherratt, 2 Ha. 14; Sillick v. Booth, 1 Y. & C. C. 121, 739; Barker v. Lea, T. & R. 413.

So, where the whole fund is given to a class, with benefit of survivorship, the words of survivorship apply to the whole, accrued as well as original shares. In re Crawhall's Trusts, 2 Jur. N. S. 892.

5. And a gift over of the whole is convincing evidence Gift over

of the whole fund.

Where the gift is

of the same intention. In such a case share must have been meant to include every interest accruing as well as original, for otherwise the estate would go away from the issue piecemeal; whereas, it is obvious, nothing was intended to go over, but that all should go over at once on failure of the issue of all the children, as if all but one had died without issue who was intended to take all." Doe d. Clift v. Birkhead, 4 Ex. 110; Douglas v. Andrews, 14 B. 347; Dutton v. Crowdy, 33 B. 272; Langley v. Langley, 6 L. R. Ir. 277.

6. And if the bequest is of residue, the presumption residuary. against intestacy will assist the Court in passing accrued with original shares. Goodman v. Goodman, 1 De G. & Sm. 695.

Accrued shares are primâ facie not subject to

7. Accrued shares are similarly not liable to the same restrictions as original shares in the absence of a clearly expressed intention so to restrict them. Gibbons v. the restric- Langdon, 6 Sim. 260; Ware v. Watson, 7 D. M. & G. 248; and, on the other hand, Trickey v. Trickey, 3 M. & K. 560; Jarman's Trusts, L. R. 1 Eq. 71; Fitzgerald v. Fitzgerald, I. R. 7 Eq. 436.

tion of

original

shares.

CHAPTER XXXIX.

THE CONSTRUCTION OF GIFTS OVER.

519

GIFTS OVER UPON DEATH BEFORE VESTING.

upon death

A GIFT over of the share of a legatee who dies before Gift over attaining a vested interest takes effect if the legatee dies before in the lifetime of the testator, whether under or over vesting. the age appointed for vesting. Re Gaitskell's Trusts, 15 Eq. 386.

A gift over upon the death of the legatees attaining a vested interest refers primâ facie to before vesting in interest.

before Vesting

death

This is the case whether the gift be immediate or in remainder. Parkin v. Hodgkinson, 15 Sim. 293; Re Arnold's Estate, 33 B. 163; Richardson v. Power, 19 C. B. N. S. 780.

prima facie refers to vesting

in interest.

gift over to persons

living at the period

bution.

If, however, the gift over be to persons living at the When the period of distribution, there is a strong argument that the word vested was used as equivalent to vested in possession: Young v. Robertson, 4 Macq. 314, where the of distrigift over upon the death of any before attaining a vested interest was to the survivors, which was read as equivalent to those who survive the period of distribution, and Greenhalgh v. Bates, L. R. 2 P. & D. 47, where the gift over was to the next of kin of the tenant for life, who could not be ascertained till her death.

So, if the legacies would be vested in interest at the testator's death, and the gift over is, if any of the legatees