an express The express gift of certain lands to A. does not in Whether itself prevent him from taking other lands by implica- devise to tion. See 13 H. 7, f. 17; Brook, Devise, pl. 52, cited Gardner v. Sheldon, Vaughan, 259; Tudor, L. C. 547. prevent in A. will 541, him from taking by implica Therefore, where lands are devised to A. for life, and after the death of A. the lands previously devised, together with other lands, are devised to B., A. will or will not take an estate for life by implication in the other lands, according as B. is the heir or a stranger. Aspinall v. Petvin, 1 S. & St. 544; King v. Ringstead, 9 B. & C. 218; Attwater v. Attwater, 18 B. 330. tion. tive con where lands, in which A. But words which taken in their grammatical sense Distribuare joint and apply to the two classes of property, will struction be construed distributively if the intention of the testator is manifest that the lands not expressly devised some of for life are to go to the devisees at once. Cook v. Gerard, takes a 1 Saund. 183, cit. 9 B. & C. 225; Simpson v. Hornsby, 2 Vern. 723; Prec. Ch. 439, 452; Doe v. Brazier, 5 B. & Ald. 64. The mere fact that provision has already been made for A. will be an argument against giving a life estate by implication, and therefore in favour of a distributive construction. See Stevens v. Hale, 2 Dr. & Sm. 22; James v. Shannon, I. R. 2 Eq. 118. life estate, are given at his death to the heir. cation Of course, if the devise after the death of A. can be No impliconstrued as merely postponing the vesting in pos- where session till the death of A., no argument in favour of possession postponed implication can arise. Barnet v. Barnet, 29 B. 239. till A.'s And in the same way, if there is a residuary devise, Effect of a so that nothing is undisposed of, there can be no impli- devise. residuary cation. Horton v. Horton, Cro. Jac. 74. death. II. By analogy to the rule with regard to real pro- Bequest of personalty perty, it appears that if personal property be given to to the next the next of kin, or to one of the next of kin after the of kin after A.'s death. Implica tion in settle ment. death of A., A. will take a life interest by implication, if there is no residuary bequest. Stevens v. Hale, 2 Dr. & Sm. 22; Cock v. Cock, 21 W. R. 807; Blackwell v. Bull, 1 Kee. 176. In Horton v. Horton, Cro. Jac. 74, there was in effect a residuary bequest according to the then state of the law. A life interest will not be implied in A. where the persons to take on his death are not the next of kin or are the next of kin along with other persons. Ralph v. Carrick, 11 Ch. D. 873. In order to imply a life interest in A. there must be something more than a mere gift after his death. Some of the earlier cases in which a life interest has been implied would probably not now be followed. See Roe v. Summerset, 5 Burr. 2608; Bird v. Hunsdon, 2 Sw. 342; Humphreys v. Humphreys, 4 Eq. 475. In the case of marriage settlements settling property on marriage the wife during coverture and providing for her death during the husband's life, with limitations after the death of the survivor, but containing no provision for the event of the wife surviving the husband, a life interest has in that event been implied in the wife. Tunstall v. Trappes, 3 Sim. 312; Allin v. Crawshay, 9 Ha. 382. Intention to give life interest. So in wills after a life interest to A., with a life interest in certain events to B., followed by a gift over after the death of A. and B., a life interest has been implied in B. though the events did not happen. In re Betty Smith's Trusts, 1 Eq. 79; In re Blake's Trust, 3 Eq. 799; see Isaacson v. Van Goor, 42 L. J. Ch. 193; 21 W. R. 156. Where the testator's widow was directed to carry on the testator's business and after his death he directed his property to be divided among his children, the widow took a life interest in the property upon the general intention to keep the family together. Blackwell v. Bull, 1 Keen. 176; see Cockshott v. Cockshott, 2 Coll. 432. A residuary bequest or a gift in default of appoint- Effect of a ment where the bequest after the life of A. is made bequest. residuary under a power, affords an argument against the implication of a life interest. Cranley v. Dixon, 23 B. 512; Henderson v. Constable, 5 B. 297. cation favour of There is no implication in favour of A. where the gift No impli is if A. dies under twenty-one or unmarried, since in such arises in a case an absolute interest and not a life estate would have to be implied. James v. Shannon, I. R. 2 Eq. 118; the gift is, Harris v. Du Pasquier, 20 W. R. 668. A., where if A. dies under 21, to B. IMPLICATION OF ABSOLUTE INTERESTS. gift Devise to im- 21, with a A. till gift over if 1. If there is a gift to A. till twenty-one with a over if he dies under twenty-one, A. will take by plication the fee or an absolute interest in personalty, defeasible upon death under twenty-one. Tomkins v. under Tomkins, cited 1 Burr. 234; Paylor v. Pegg, 24 B. 105; Gardiner v. Stevens, 30 L. J. Ch. 199; In re Harrison's Estate, 5 Ch. 408. The argument in favour of implication is strengthened if the residuary devisees are different from those who would take under the gift over, so that without implication the property would go to different persons, according as A. died under or over twenty-one. Cropton v. Davies, L. R. 4 Ex. 159. 21. 21. 2. A simple gift to trustees in trust for A. till he attains Gift till twenty-one will not give A. the absolute interest. In re Hedley's Trusts, 25 W. R. 529; see M'Cutcheon v. Allen, 5 L. R. Ir. 268. But very slight indications of intention have been held sufficient to give the absolute interest, though possibly some of the earlier decisions may be difficult to support. In some cases the Court has found a direct gift to the gift to A. till twenty benefit of himself and another. legatee, with a superadded direction that it was to be in trust till he should come of age. Atkinson v. Paice, 1 B. C. C. 91; Hale v. Beck, 2 Eden. 229; see Tunaley v. Roch, 3 Dr. 720. In others an absolute interest has been implied from a direction that the trust is to cease at twenty-one, or from a reference to the trustees as trustees for the legatees, Peat v. Powell, Amb. 387; 1 Eden. 479; Wilks v. Williams, 2 J. & H. 125. Or, again, an absolute interest has been given because the trustees are directed to apply not only the interest but the produce till the legatees attain twenty-one. Newland v. Shephard, 2 P. Wms. 194. Effect of a 3. But the implication will be rebutted if there are circumstances tending to show that the person to take one, for the till twenty-one is not to take an absolute interest if he survives twenty-one; if, for instance, the gift is to the wife for her and her son's support till the son attains twenty-one, and if he dies under twenty-one, to the wife for life, and then over. In this case the son did not take the whole interest till twenty-one, and it could therefore hardly be implied that he was to take the whole after that age to the exclusion of his mother. Fitzhenry v. Bonner, 2 Dr. 36. No impli cation in 4. No implication in favour of children arises upon an favour of absolute gift of personalty to A. and if he dies without children children over, or upon a gift to several as tenants in arises in a dies with gift to A. common and if any die without issue their shares to absolutely, and if he those then living or their children. Addison v. Busk, 14 B. 459; 2 D. M. & G. 810; Cooper v. Pitcher, 4 Ha dren over. 485; 16 L. J. Ch. 24; Dowling v. Dowling, L. R. 1 Eq. 442; ib., 1 Ch. 612. out chil Gift to A. for life, 5. Nor does any implication in favour of children arise and if he if the gift is to A. for life and if he dies without childies with- dren over. Greene v. Ward, 1 Russ. 262; Ranelagh v. dren over. Ranelagh, 12 B. 200; Sparks v. Restall, 24 B. 218; out chilNeighbour v. Thurlow, 28 B. 33; Re Hayton's Trusts, 4 N. R. 54; Seymour v. Kilbee, 3 L. R. Ir. 33. So in the case of real estate, a gift over in default of issue of A. following limitations to A. for life with remainder to his first son for life, with remainder to the first son of the first son in tail, with remainder to every other son of A. successively for like interests, will not give the second and other sons of the first son of A. estates by purchase. Monypenny v. Dering, 7 Ha. 568. 6. But though after a gift to A. for life the mere gift over in default of children will not be sufficient to give the children any interest by implication, the Court will, it seems, lay hold of any indication of intention to fortify the argument based upon the gift over, so as to give the children an interest. In the former case, where the absolute interest is given to the first takers, the "mere fact of a testator giving over property in case there are no children does not furnish any presumption on which this Court can act in favour of his giving it to the children, if there are any, as against their parents." Dowling v. Dowling, L. R. 1 Ch. 615. But where the parent takes only a life interest the children can take nothing from him, and at the same time the presumption against intestacy arises. It seems Ex parte Rogers, 2 Mad. 449, may be supported on this ground; see, too, Kinsella v. Caffray, 11 Ir. Ch. 154, where the gift over was not merely on death without issue, but upon such death, or upon death leaving issue, and such issue dying under twenty-one. 7. Possibly where there is a gift to A. to dispose of Gift to A. to dispose among a certain class by deed or will, a life interest would of among be implied in A. Acheson v. Fair, 3 D. & War. 527. a certain See Williams v. Roberts, 27 L. J. Ch. 177; 4 Jur. N. S. death. 18; and p. 384, ante. class at his |