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of the

of the same intention. In such a case share must whole fund. 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. Where the 6. And if the bequest is of residue, the presumption gift is residuary. against intestacy will assist the Court in passing accrued

with original shares. Goodman v. Goodman, 1 De G. &

Sm. 695. Accrued 7. Accrued shares are similarly not liable to the same shares are prima

restrictions as original shares in the absence of a clearly subject to expressed intention so to restrict them.

Gibbons v. the restric- Langdon, 6 Sim. 260; Ware v. Watson, 7 D. M. & G. tion of original 248; and, on the other hand, Trickey v. Trickey, 3 M. & shares.

K. 560; Jarman's Trusts, L. R. 1 Eq. 71; Fitzgerald v.
Fitzgerald, I. R. 7 Eq. 436.

519

CHAPTER XXXIX.

THE CONSTRUCTION OF GIFTS OVER.

GIFTS OVER UPON DEATH BEFORE VESTING.

upon death

in interest.

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 before Vesting attaining a vested interest refers prima facie to death facie refers before vesting in interest.

to vesting 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. If, however, the gift over be to persons living at the When the

gift over to period of distribution, there is a strong argument that

living at the word vested was used as equivalent to vested in

the period possession : Young v. Robertson, 4 Macq. 314, where the of distri

bution. gift 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

persons

die during the testator's life, or after his decease, without attaining vested interests, vested must mean vested in

possession. King v. Cullen, 2 De G. & S. 252. Vested And, in the same way, the testator may show that he used as equivalent used“ vested” in the gift over, as equivalent to "paid," to paid.

if the gift over is, if any die before their share should be vested as aforesaid, when only directions as to payment have been previously given. Sillick v. Booth, 1 Y. & C. C. 121, 126.

If the testator expressly provides for the death of the legatees in his lifetime, a gift over upon death before vesting refers to vesting in possession. In re Morris, 5 W. R. 423.

GIFTS OVER UPON DEATH BEFORE PAYMENT.

Gift over A. In the case of a direct gift, followed by a gift upon death before pay- over, if any of the legatees die before their legacies are ment after

payable. an immediate gift

1. If a period for payment is appointed the gift over with a period of takes effect : payment.

a. If the prior legatee dies in the testator's lifetime, whether after the age fixed for payment or not. Walker v. Main, 1 J. & W.1; Gaitskell's Trust, 15 Eq. 386.

b. If the prior legatee survives the testator, but dies before the time fixed for payment. Jenkins v. Jenkins, Belt's Supplement, 264; Rammell v. Gillow, 9 Jur. 704;

and see Woodburne v. Woodburne, 3 De G. & S. 643. Where no

2. If no time is fixed payable refers to the testator's period for payment is death. Rammell v. Gillow, 9 Jur. 704; Collins v. Macappointed.

pherson, 2 Sim. 87; Cort v. Winder, 1 Coll. 320.

B. If there is a life interest, followed by a bequest to upon death

certain persons, and a gift over in the event of death ment

before the respective legacies become payable, no time where there is a being appointed for division or payment, the gift over

Gift over

before pay

terest.

upon death

ment when

life inte

takes effect with respect to those legatees who die before life inthe tenant for life. Crowder v. Stone, 3 Russ. 217; Creswick v. Gaskell, 16 B. 577. The word entitled, however, is more easily susceptible Meaning of

the word of the meaning vested than the word payable, and it will entitled.”

"" accordingly be taken to mean entitled in right and not in possession, and referred to the death of the testator and not of the tenant for life, if the latter meaning would have the effect of divesting a previously vested gift. See Commissioners of Charitable Donations v. Cotter, 2 D. & Wal. 615; 1 D. & War. 498; Henderson v. Kennicott, 2 De G. & S. 492. See Beale v. Connolly, I. R. 8 Eq. 412 ; Jopp v. Wood, 28 B. 53; 2 D. J. & S. 323. C. If there is a life interest as well as a period of Effect of

gift over payment the question is more complicated.

The most numerous cases on this head have occurred in before paymarriage settlements, where, in addition to the leaning in there is a favour of vesting, the Court is assisted by the legal pre- rest and a sumption that the children were intended to be provided

period of

payment. for at the time when their portions were wanted, whether they survived the tenant for life or not. See Emperor v. Rolfe, 1 Ves. sen. 208.

The same rules of construction are however applicable to wills. At the same time it must be remembered that the tendency of the Court at the present day is to give words their natural meaning, and it is probable that many of the old authorities cited below would not now be followed. The cases may be classified under the following heads :

1. If there is a gift to A. for life, followed by a bequest Effect of to his children, whether at twenty-one, or payable at of the twenty-one, with a gift over on death before the legacy is legatee

,

before the payable, the gift over is good as regards legatees who die testator. in the testator's lifetime, whether under or over twentyone. Walker v. Main, 1 J. & W. 1; the share of Mary

the death

Main, who it appears had attained twenty-one. See Gait

skell's Trust, 15 Eq. 386. Bequest 2. If there is a gift to A. for life followed by a concontingent upon tingent bequest to his children, as, for instance, to the attnining children at twenty-one, or to be vested at twenty-one, and defeasible a gift over in the event of death before the shares are at that age.

payable, if the word payable were taken in its ordinary meaning as referring to the time at which the money is actually distributable, it would involve the double contingency of surviving the tenant for life and attaining twenty-one, and therefore the Court confines it to the latter, which is the event when the bequest is most likely to be required, and this is the case whether there is provision for the issue of the children or not. Mendham v. Williams, L. R. 2 Eq. 396 ; Mocatta v. Liqlo, 9 Sim, 56 ; Jones v. Jones, 13 Sim. 561; Bouverie v. Bouverie, 2 Ph. 349.

The same will be the case whether the word used is “received” or “receivable :" West v. Miller, 6 Eq. 59; Dodgson's Trust, 1 Dr. 440; or "entitled in possession,” or “entitled to the receipt,” or “entitled to payment," or“ before they have received or become possessed.” Re Yates' Trust, 21 L. J. Ch. 281; Haward v. James, 28 B. 523; Re Williams, 12 Beav. 317; Rammell v. Gillow,

9 Jur. 704. Effect of 3. When the shares of daughters are directed to be gift over ko issue of vested at twenty-one, or marriage, and there is a gift over, those dying if any of the legatees die before their shares are payable

to their issue, there seems to be some doubt whether it payment, when the would not be necessary to construe payable" in its to be

ordinary meaning, since a daughter could not die leaving vested at issue before her share becomes payable if “ payable" marriage.

meant “vested.”

It seems, however, that if the gift over is simply of the shares of legatees who die before the time of payment,

before the time of

shares are

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