In what

cases

trusts will be for the appointees of the legatee by will and in default of appointment for her absolutely. Stanley v. Jackman, 23 B. 450.

A covenant in executory marriage articles to settle real estate on issue will be carried out by successive limitations to the first and other sons, and so on. Dod v. Dod, Aıb. 274; Hart v. Middlehurst, 3 Atk. 373; Phillips v. James, 13 W. R. 934; In re Grier, I. R. 6 Eq. 386.

In the execution of executory trusts by the Court the tenants for question arises whether the tenants for life are to be dislife will be punishable for waste or not.

unimpeachable for waste.

1. Where the executory trust is in such a form as would give the first taker an estate of inheritance, but the general object of the trust can only be effected by cutting down that estate to an estate for life, the life estates are made unimpeachable for waste. Leonard v. Earl of Sussex, 2 Vern. 526; White v. Briggs, 15 Sim. 17; 2 Ph. 583.

And, therefore, where estates are directed to go to the support of a title granted to a man and the heirs of the body, the estate of the first taker being cut down to a life estate in execution of the trust, will be dispunishable for waste. Woolmore v. Burroughes, 1 Sim. 512; Bankes v. Le Despencer, 10 Sim. 576; 11 Sim. 508; Suckville-West v. Viscount Holmesdale, L. R. 4 H. L. 548.

A direction that the trust is to be executed in strict settlement without more, i.e., where no estate for life is expressly given, implies that the estates for life are to be dispunishable for waste. See Davenport v. Davenport, 1 H. & M. 775.

And, upon the same principle, if the trust is to be executed in strict settlement, powers which would diminish the estate will not be inserted under a direction to insert the usual powers. Higginson v. Barneby, 2 S. & St. 516; see Sackville-West v. Viscount Holmesdale, supra.

2. But if the testator has expressly, or by reference to other trusts, directed a life estate to be given, the power to commit waste will not be added to the life estate. Davenport v. Davenport, 1 H. & M. 775.

And if life estates are directed by the testator to be given, the words "in strict settlement" will not make the life estates dispunishable for waste. Stanley v. Coult

hurst, 10 Eq. 259.

A direction to settle without power of anticipation is inconsistent with a power to commit waste. Clive, 7 Ch. 433.

Clive v.

upon anti

Property to be settled to the separate use of a married Restraint woman will be settled with a restraint upon anticipation. cipation. Turner v. Sargent, 17 B. 515; Stanley v. Jackman, 23 B 450; Re Dunnill's Will, I. R. 6 Eq. 322; see Symonds v Wilkes, 11 Jur. N. S. 659.

Real estate directed to be settled will be settled as realty. Turner v. Sargent, 17 B. 515.

powers will

of be inserted

A simple direction to settle will, it seems, authorise the What insertion of powers of management, such as powers leasing and sale and exchange. Turner v. Sargent, 17 B. 514; Wise v. Piper, 13 Ch. D. 848.

And where "usual powers" are expressly authorised, powers of leasing, of sale and exchange, and, if necessary, of partition and of leasing mines and granting building leases, will be inserted, but not powers to confer personal privileges upon particular persons. Peake v. Penlington, 2 V. & B. 311; Hill v. Hill, 6 Sim. 136; see Duke of Bedford v. Marquis of Abercorn, 1 M. & Cr. 312, p. 334; Higginson v. Barneby, 2 S. & St. 516; In re Grier, I. R. 6 Eq. 386.

Where certain powers are given to tenants for life if qualified, and if not qualified, to trustees for them, general words will not authorise powers of sale and exchange. Brewster v. Angell, 1 J. & W. 625; Horne v. Barton, Jac. 437.

in a settlement executed by the Court.

And where certain powers are given, general words will, as a rule, authorise only powers of a like nature; they will not, for instance, authorise the insertion of a power to grant building leases when a power to lease is expressly given. Pearse v. Baron, Jac. 158.

The general words may, however, be so placed as to show that their generality is not to be controlled. Lindon v. Fleetwood, 6 Sim. 152.

563

CHAPTER XLIV.

IMPLICATION.

IMPLICATION OF ESTATES TAIL.

upon an

failure of

IF there is a devise to A. simply or to A. for life, fol- Gift over lowed by a gift over in default of issue, if these words indefinite import an indefinite failure of issue, A. takes an estate tail. Machell v. Weeding, 8 Sim. 4; Daintry v. Daintry, the ances6 T. R. 307; In re Banks' Trusts, 2 K. & J. 387.

are

issue gives

tor an estate tail.

will not constructively limit the failure

as to pre

And in wills before the Wills Act, if the limitation is The Court to A. simply, or to A. for life, with a gift over in default of issue, A. will take an estate tail, though there words which might constructively limit the failure of of issue, so issue within a definite period, since this is the only con- vent the struction which will carry anything to the issue. Wyld v. Lewis, 1 Atk. 432; Simmons v. Simmons, 8 Sim. 22, estate tail. where the devise was in effect to A. for life, and if she dies without issue over, the power to appoint to issue being merely discretionary. Butt v. Thomas, 11 Ex. 235; 1 H. & N. 109.

implication of an

an estate

Quare whether an estate tail will be implied in a per- Whether son from a gift over in default of his issue simply, where tail will be no interest is given to him by the will. Parker v. Tootal, from a gift implied 11 H. L. 143; see Walter v. Drew, Com. Rep. 373.

over in default of

who takes

And where, in a devise to A. for life, remainder to his a person children either for life or in tail, an estate tail is implied nothing in A. from a gift over in default of issue, the estate tail under the so implied will be in remainder, to take effect after the

will.

As between

prior estates expressly limited. Doe d. Bean v. Halley, 8 T. R. 5; Doe d. Gallini v. Gallini, 5 B. & Ad. 621; 3 Ad. & E. 340; Forsbrook v. Forsbrook, L. R. 3 Ch. 93; Andrew v. Andrew, 1 Ch. D. 410.

And where an estate tail is to be implied either in an father and ancestor or his issue, it will be implied in the ancestor, SO as to take in the whole line of issue. Atkinson v. Barton, 10 H. L. 213; Forsbrook v. Forsbrook, supra.

son, an

estate tail will be implied in the father.

Devise to the heir-atlaw after

the death

of A., gives

A. a life estate.

Person to
take on the
death of
A. must

be heir at
date of
devise.

Devise at the death

of A. to one of

IMPLICATION OF LIFE ESTATES.

I. If there is a devise of realty to the heir-at-law after the death of A., A. will take an estate for life by impli cation. It is evident that the heir who would take in

case of intestacy is not meant to take immediately, and the only way of carrying out the testator's intention is to give A. a life estate. "A. must have the thing devised or none else can have it." Gardner v. Sheldon, Vaughan, 259; Tudor, L. C. 541.

But a devise to a stranger after the death of A. gives A. no estate by implication, since the heir-at-law may have been intended to take in the meantime. Aspinall v. Petvin, 1 S. & St. 544.

In order that A. may take a life estate the person to whom the lands are given after the death of A. must be the heir-at-law at the time of the devise, and not at the time when the devise takes effect. Aspinall v. Petvin, supra.

Similarly, a devise to one of several coheiresses after the death of A. gives A. a life estate. Hutton v. Simpson, 2 Vern. 723, as stated in King v. Ringstead, 9 B. & C. several coheiresses. 218, p. 228.

Devise at the death

of A. to

the heir

and others.

The rule does not apply where the devise is to the heir and others after the death of A. Ralph v. Carrick 11 Ch. D. 873.