unless you treat it as a postponement of the gift and give a life interest to A.

There being, then, no such canon or rule of construction, as the Appellant contends for, he must fail unless there be on the face of the will an expressed intention by the testator that the widow shall have a life estate. I can see nothing in this will that can be held to shew such an intention, and I should say that there was rather an indication of an intention to the contrary, because the testator refers to the fact that the widow was to have £700 a year, and directs it to be paid out of the income of his estate, and if he intended to give her a life estate it is extraordinary that he should not go on to direct the surplus to be paid to her. Possibly the necessity of providing for his wife's annuity may have been the ground for postponing the division of his estate. That is conjecture, but to give a life interest to his widow would be only a conjecture, and we are not entitled to conjecture what the testator meant to do. We can only look to what on the face of the will he has said is to be done. The order of the Vice-Chancellor on this point must therefore be affirmed."

SECTION 3.-IMPLICATION OF CROSS-LIMITATIONS 7

SCOTT v. BARGEMAN.

(Court of Chancery, 1722. 2 P. Wms. 68.)

One has a wife and three daughters, A., B., and C., and being possessed of a personal estate, devises all to his wife, upon condition, that she would immediately after his death pay £900 into the hands of J. S. in trust to lay out the same at interest, and pay the interest thereof to his wife for her life, if she shall so long continue a widow; and after her death or marriage, in trust that J. S. shall divide the £900 equally among the three daughters, at their respective ages of twenty-one, or marriage, provided that if all his three daughters

6 The concurring opinions of James and Brett, L. JJ., are omitted. Brett, L. J., said in part: "It sometimes amuses me when we are asked to say what was the actual intention of a foolish, thoughtless, and inaccurate testator. That is not what the Court has to determine; all the Court can do is to construe, according to settled rules, the terms of a will, just as it construes the terms of any other written document. This is obviously the will of a foolish, thoughtless, and inaccurate man. If he really intended his wife to have an estate for her life, what was more easy than for him to say so? If he had any such intention in his mind at the time, he must have deliberately refrained from expressing it."

7 Cross-remainders will not be raised by implication in a deed: Doe d. Tanner v. Dorvell, 5 T. R. 518 (1794).

should die before their legacies should become payable, then the mother, whom the testator also made executrix, should have the whole £900 paid to her.

The wife pays the £900 to J. S. and marries a second husband, viz., the defendant Bargeman; the two eldest daughters die under age and unmarried; the youngest daughter attains twenty-one; and the question being, whether she was entitled to all, or what part of the £900. LORD CHANCELLOR [MACCLESFIELD]. The youngest daughter is entitled to the whole £900, by virtue of the clause in the will, which says, "if all the three daughters shall die before their age of twentyone or marriage, then the wife shall have the whole £900;" for this plainly excludes the mother from having the £900 or any part of it, unless these contingencies shall have happened, and the share of £300 apiece did not vest absolutely in any of the three daughters under age, so as to go, according to the Statute of Distributions, to their representatives, in regard it was possible all the three daughters. might die before their ages of twenty-one or marriage, in which case the whole £900 is devised over to the mother; consequently the whole £900 does now belong to the surviving daughter the plaintiff.o

8 "If there is a devise of lands to two or more as tenants in common and the heirs of their bodies respectively, followed by a gift over in default of such issue, the gift over takes effect only in default of all such issue as would take under the antecedent limitations, and therefore cross-remainders are implied between the tenants in tail. Doe d. Gorges v. Webb, 1 Taunt. 234; Powell v. Howells, L. R. 3 Q. B. 655; Hannaford v. Hannaford, L. R. 7 Q. B. 116; see Askew v. Askew, 57 L. J. Ch. 629; 58 L. T. 472; 36 W. R. 620." Theobald on Wills (7th Ed.) 739.

"The result will be the same if the gift over, is in default of issue to take under the preceding limitations, living at the death of their parents." Maden v. Taylor, 45 L. J. Ch. 569. Theobald on Wills (7th Ed.) 739.

"It has been said that, if cross-remainders are provided between certain objects in certain events, the implication of cross-remainders between those objects in different events does not arise; so that, for instance, if cross-remainders are provided between the children of separate families among themselves, cross-remainders would not be implied between the children of one family and those of the other. Clache's Case (Dyer, 330), however, which is usually cited on this point, is no authority for any such proposition. All that case decides is, that cross-remainders cannot be implied in the face of an express limitation over in a certain event with which such an implication would be inconsistent. See the remarks by Turner, L. J., in Atkinson v. Barton, 3 D. F. & J. 339. And the decision in Rabbeth v. Squire, 19 B. 77; 4 De G. & J. 406, was based on totally different grounds. The true rule is laid down by Turner, L. J.: 'Cross-remainders are to be implied or not according to the intention. The circumstance of remainders having been created between the parties in particular events is a circumstance to be weighed in determining the intention, but is not decisive upon it.' Atkinson v. Barton, 3 D. F. & J. 339 (reversed on appeal, but on different grounds, 10 H. L. 313). See, too, Vanderplank v. King, 3 Ha. 1; Re Ridge's Trusts, 7 Ch. 665; In re Hudson, Hudson v. Hudson, 20 Ch. D. 406 (where the rules deducible from the cases are stated); In re Rabbins; Gill v. Worrall, 79 L. T. 313." Theobald on Wills (7th Ed.) 740.

"Cross-remainders will be implied in a devise to the children of A., which carries to them only a life estate, with a gift over for want of such issue of A. Ashley v. Ashley, 6 Sim. 358." Theobald on Wills (7th Ed.) 740.

ARMSTRONG v. ELDRIDGE.

(Court of Chancery, 1791. 3 Brown Ch. Cas. 215.)

The testator gave the residue of his real and personal estate to trustees, in trust to sell and apply the interest, proceeds, and profits thereof from time to time, to the use of his grandchildren, Frances Armstrong, Charlotte Armstrong, Rebecca Armstrong, and Mary Armstrong, equally between them, share and share alike, for and during their several and respective natural lives; and from and immediately after the decease of the survivor of them, in trust to pay and apply the principal money, to, and among all and every, the children of his said granddaughters, equally to be divided between them, share and share alike.

Two of the granddaughters were now dead, leaving children. The question was, what should become of the interest which the two deceased granddaughters took, until the death of the survivor. The children of the deceased grandchildren claimed them, their mothers being tenants in common, therefore, there being no survivorship.

But LORD CHANCELLOR [THURLOW] said, that though the words "equally to be divided," and "share and share alike," were, in general, construed, in a will, to create a tenancy in common, yet, where the context shows a joint-tenancy to be intended, the words should be construed accordingly; and that, in this case, it was evident that the interest was to be divided among four, while four were alive; among three, while three were alive; and nothing was to go to the children, while any one of their mothers were living; and declared the whole interest to belong to the two living granddaughters, by survivorship.

SKEY v. BARNES.

(Court of Chancery, 1816. 3 Mer. 335.)

John Brockhurst by his will devised his real estates to the defendant Barnes and another (whom he also appointed executors of his will) and their heirs, during the life of his daughter Eleanor (wife of the defendant James Skey), upon trust, during her life, to pay the rents and profits to her separate use; with remainder to the use of her first and other sons in tail-male; in default of such issue to the use of all and every her daughters as tenants in common in tail with cross remainders; and for default of such issue to the use of his nephew Thomas Brockhurst in fee. He also gave and bequeathed to his said trustees, their executors, &c., all his personal estate and effects, in trust to sell, and invest the produce on real or government securities, and to pay the interest to his daughter Eleanor during her life for her separate use; and after her decease, "to pay and divide the whole

of the said trust moneys to and amongst all and every the child or children of the body of my said daughter lawfully to be begotten and the lawful issue of a deceased child," in such proportions as his said daughter should by will appoint; and in default of appointment then the same "to go to and be equally divided between them share and share alike, and, if there should be but one child, then to such only child; the portion or portions, parts or shares of such of them as shall be a son or sons to be paid at his or their respective ages of twentyone, and the portion or portions of such of them as shall be a daughter or daughters to be paid at her or their respective ages of twentyone or days of marriage first happening; but, in case there shall be no such issue of the body of my said daughter, or all such issue shall die without issue, before his or their respective portions should become payable as aforesaid," then £1000 for his sister Mary and her family, as therein mentioned; and, as to £1500, for his niece Ann Wells and her family, in like manner; and in case there should be no issue of either, for his said nephew Thomas Brockhurst, whom he also made his residuary legatee. The will contained a proviso that it should be lawful for the trustees, &c., to pay and apply the interest of the respective children's portions towards their education and maintenance until their respective portions should become payable.

The testator died after making his will, leaving the said Eleanor Skey, his only child, who received the interest, &c., of the personal estate for her life, and died on the 18th of December, 1794, intestate, and having made no appointment, leaving the defendant James Skey (her husband), the plaintiff (her son), the defendant Mary Skey, and Frances, Sarah, and Elizabeth Skey (all since dead), her daughters, her surviving; of whom Elizabeth died in January, 1811, under twenty-one, unmarried and intestate; Sarah died in October, 1811, having attained twenty-one, and having by her last will appointed the defendants George Skey and Mary (her sister) executor and executrix; and Frances died in 1813, intestate and unmarried, but having attained twenty-one. Administration both to Elizabeth and Frances, was taken out by the defendant James Skey, their father.

The question was as to the share of Elizabeth (who had died under twenty-one and unmarried), to which the plaintiff claimed to be entitled, together with the defendant Mary and the representatives of Sarah and Frances, respectively, by right of survivorship.

The defendant James Skey (the father), on the contrary, insisted that the share of Elizabeth was a vested interest, transmissible to her personal representatives, and he claimed to be entitled to it by having taken out administration.

THE MASTER OF THE ROLLS [SIR WILLIAM GRANT]. Upon the face of the will, and independently of authority, I should have found little difficulty in deciding this case. I should have said, The shares of the residue are so given as to vest immediately in the children of the daughter, though liable to be divested by their all dying without

issue under twenty-one. The contingency on which they were to be divested has not happened. They therefore continued vested, and the share of a child dying under twenty-one passes to its representative. But it was said that such a decision would be in contradiction to the authority of Scott v. Bargeman, 2 P. W. 69, and of Mackell v. Winter, 3 Ves. 536. I shall show hereafter that this case cannot be affected by the last of these decisions. As to the first, though I think the decision right in its result, I doubt much whether the reporter can have correctly stated the reason on which it was grounded; for it seems to imply a proposition that is untenable in point of law, namely, that the mere circumstance of all the shares being given over on a contingency does, of itself, and without more, prevent any of the shares from vesting in the mean time. I take it to be clear, that a devise over upon a contingency has no such effect, provided the words of bequest be, in other respects, sufficient to pass a present interest. Such a devise over of the entirety may indeed be called in aid of other circumstances to show that no present interest was intended to pass; and there is another question I shall presently mention, on which it may very materially bear. But, that it is alone sufficient to prevent vesting, cannot, I think, be maintained.

In Ingram v. Shephard, Amb. 448, the point was indeed made; but Lord Northington with great clearness decided against it. There, a residue of real and personal estate was given to the children of Frances Shephard; but it was to go over if she died without leaving issue. The children that had come into esse, filed a bill for the rents and profits of the residuary estate. "The devisees over contended that the children took no interest in the residuum in the life of their mother, but that the whole was contingent till her death; and that the interest and profits were intended to accumulate in the mean time."

"Lord Northington was very clearly of opinion, that the daughters took a defeasible interest in the residue; and put the case of a legal devise of the residue to the daughters, with a subsequent clause, declaring, that if all the daughters should die in the lifetime of their mother, then the residue should go over; that would be an absolute devise with a defeasible clause, and the daughters would, in that case, be clearly entitled to the interest and profits till that contingency happened. And decreed according to the prayer of the bill, with liberty to apply in case of the birth of any other child."

I have said that I thought the decision of Scott v. Bargeman right in its result, though not for the reason assigned. There was no gift to the daughters, but in the direction to the trustee to divide the fund among them at their respective ages of twenty-one years. The age of twenty-one was therefore part of the description of the legatees among whom the division was to be made.

On that principle, Lord Rosslyn, after consideration, and looking into the authorities, decided the case of Batsford v. Kebbell, 3 Ves. 363. There, the testatrix gave to A. the dividends that should become