child, so that the class to take is ascertained at a different time from the period of possession, there is no reason for restraining the failure of issue, since children may take transmissible interests without surviving the failure of issue. Garrett v. Cockerell, 1 Y. & C. C. 494. default of survivors. vivorship of issue. 7. It would seem that the same principle ought to apply Gift in where the gift is to several, and if any die without issue issue to to the survivors. Therefore, in such a case, if survivors means those who When sursurvive the failure of issue, the failure of issue can only refers to import a restricted failure. The cases, however, seem to the failure show that a mere gift if any die without issue to the survivors without more would be sufficient to restrict the failure of issue to the death of the parent. Hughes v. Sayer, 1 P. Wms. 534; Ranelagh v. Ranelagh, 2 M. & K. 441; Westwood v. Southey, 2 Sim. N. S. 192; Turner v. Frampton, 2 Coll. 331. But if survivor means not the person surviving the When survivorship failure of issue but the longest liver of the legatees, so is merely that one legatee surviving another would take a trans- among the legatees. missible interest before the failure of issue, the failure of issue will not be restricted. Chadock v. Cowley, Cro. Jac. 695. words of It is submitted that, where the meaning of survivors is Effect of clear, words of limitation superadded are immaterial; but limitation. where it is doubtful whether the survivorship contemplated is between the legatees or is to be referred to the period of failure of issue, words of limitation superadded afford a strong argument that the former was intended. Massey v. Hudson, 2 Mer. 130; O'Donohoe v. King, 8 Ir. Eq. 185. Upon the same principle, in all those cases where sur- When survivorship vivors would be read others, or there is an intention to is referribenefit not merely the persons who survive the failure of ble to the issue, but their stirpes, the failure of issue will not be N N stirpes. Gift over in default a named restricted. Roe v. Scott, Fearne, C. R. 473, n; Taylor v. Walker, 13 W. R. 986; Assignees of Leadbeater, I. R 8 Eq. 422; see, too, M'Clenaghan v. Bankhead, I. R. 8 C. L. 195. 8. There is no authority for saying that a gift on failure of issue to of issue to A., a definite named person without more, would have the effect of restricting the failure of issue. Lord Beauclerk v. Dormer, 2 Atk. 307; Barlow v. Solter, 17 Ves. 479; see Fearne, C. R. 481. person. Intention to confer personal enjoy. ment. estates are On the other hand, a gift in default of issue of A. to two persons, or such of them as should be then living, has been held sufficient to show that the testator meant a personal enjoyment by the legatees and could not therefore have intended a general failure of issue. Wilson v. Chesnut, I. R. 1 Eq. 559. Perhaps Roe d. Sheers v. Jeffery, 7 T. R. 589, may stand on this ground. Jones v. Cullimore, 3 Jur. N. S. 404, where the gift was on failure of issue to such of my children as may be then living, and if none should be then alive to a person named, and a class must probably be supported on the ground that the testator showed by the gift to children then living that he did not intend an indefinite failure of issue, and not on the ground that the ultimate gift was to a definite person. Where the 9. Perhaps failure of issue would be restricted if the subsequent subsequent estates are all given to living persons for life all for life. only. Roe d. Sheers v. Jeffery, 7 T. R. 589; see Trafford v. Beckm, 3 Atk. 440. Where the estate is pur autre vie. Devise on 10. If the estate devised is pur autre vie a limitation over in default of issue is good, since it cannot be held to mean a failure, which might take place after the determi nation of the estate. Croly v. Croly, Batty, 1; Manning v. Moore, Alc. & Nap. 96; Lee v. Flinn, Ib. 418. 11. If the property devised is a reversion which comes failure of into possession only after the failure of issue of some a general reversion on failure of certain issue. person, a devise of such reversion after failure of the issue issue of a in question is in effect an immediate devise of the reversion dependent and therefore valid. And even if the event upon which the reversion is expressed to be devised is larger than and lines of includes the event upon which it comes into possession, the devise will be good if in effect the two events are the same, and the intention is merely to devise the reversion. If, for instance, the reversion falls into possession on failure of issue by a particular wife of the testator and the testator devises it upon a general failure of issue, the devise is good, as the birth of issue by a second marriage would revoke the will. Jones v. Morgan, Fearne, C. R. App. 577; 3 B. P. C. 322; Lytton v. Lytton, 4 Bro. C. C. 441. In the same way, if the testator erroneously recites that he is entitled to the reversion of certain estates on the death of a son without issue generally, and then devises the reversion on failure of such issue, the devise is good, the intention being clear to devise the reversion. Lewis v. Templar, 33 B. 625; see Bankes v. Holme, 1 Russ. 394, n. But a mere devise of a reversion upon a failure of a larger class of issue than that upon which it is limited, will not operate as an immediate devise of the reversion. Lady Lanesborough v. Fox, Cas. temp. Talb. 262. A shifting clause operates CHAPTER XLI. SHIFTING CLAUSES. WHERE estates are given by will, and there is a clause shifting the lands if the devisee comes into possession of estates previously settled, the estates go over if the event happens. Cope v. Earl de la Warr, 8 Ch. 982. And the shifting clause will operate upon the life interest of a tenant for life, though his interest is such, that upon a life if he comes into possession of the settled estates, his life though the interest under the will must at the same time come into life estate estate, comes into possession; so that, in effect, the gift of the life interest possession in the same is nugatory. Lambarde v. Peach, 4 Dr. 553; 1 D. F. & event as J. 495. that upon shifting Possession which the When estates devised by will are directed to shift on clause is to the devisee coming into possession of settled estates, the take effect. presumption is that the testator means a possession under of settled the settlement; and, therefore, if the devisee comes into prima facie possession of the settled estates not under the settlement, refers to but under an entirely new title, for instance, under the under the will of a tenant in tail, who had barred the entail, the estates possession settlement. shifting clause will not take effect. Taylor v. Earl of Harewood, 3 Ha. 372; Wandesforde v. Carrick, I. R. 5 A fortiori, where the shifting clause is to take effect on the devisee becoming entitled to other estates under any existing or future will or settlement and he becomes entitled by descent from his father, though the latter took under a will, the devised estates will not shift. Walmesley v. Gerard, 29 B. 321. "entitled." The term entitled would in such a clause mean entitled Meaning of in possession. Umbers v. Jaggard, 9 Eq. 200; see Gryll's Trusts, 6 Eq. 589; In re Finch; Abbiss v. Burney, 28 W. R. 903. estates settlement If the devisee takes the settled estates not under the Whether a devisce settlement existing at the date of the will, but under taking a resettlement, which can be looked upon as a continuation settled of the old title, the devisee taking the same interest under under a rethe resettlement as he would have taken under the old is within a settlement, except so far as his interest has been diminished shifting for his own benefit, the shifting clause takes effect. Harrison v. Round, 2 D. M. & G. 190; see In re Croker's Estate, I. R. 2 Eq. 58. If the devisee takes under the resettlement a diminished interest in the settled estates or the estates themselves are diminished in quantity, the shifting clause has no effect. Fazakerley v. Ford, 4 Sim. 390; see 3 A. & E. 897; Gardiner v. Jellicoe, 12 C. B. N. S. 568; Meyrick v. Laws, 9 Ch. 237. On the other hand, if the testator expressly gives directions to have a portion of the settled estates settled to other uses, the devolution of the settled estates to the devisee diminished by that portion will not prevent the operation of the shifting clause. Micklethwait v. Micklethwait, 4 C. B. N. S. 790; and see Stacpoole v. Stacpoole, 2 Con. & Law. 489, 501. The shifting clause will not, in the absence of a clear intention, take effect where the devisee has only an interest in remainder in the settled estates. Monypenny v. Dering, 2 D. M. & G. 145; Curzon v. Curzon, 1 Giff. 248; Bagott v. Legge, 34 L. J. Ch. 156; 12 W. R. 1097. As to the repeated operation of a shifting clause, see clause. |