No. 23. — Fawlkner v. Fawlkner, 1 Vern. 22. - Rule.

the children of his sister took life estates only, and not estates tail. Pratt v. Alger, 136 Massachusetts, 550. Citing Whitcomb v. Taylor, 122 Massachusetts, 243. In this case a testator by his will left all his estate, real and personal, to his wife, "to have and to hold the same to her use and benefit for and during her natural life," with the power to sell such parts as she might think necessary for her use and maintenance during her life. Then followed a clause giving all the residue which might be left by his widow, after paying certain legacies, to the son of his wife, "to him and his heirs for ever "; and, if he should die leaving no issue, the will gave the residue which should be left by his wife and the son, to A. for life, and if the son died leaving no issue, and after the death of A., to two nieces and a nephew equally. It was held that the son did not take an estate tail, but a fee determinable in the event of his dying without leaving any issue.

A DEVISE to the testator's heir, after the death of A., confers upon A. an estate for life by implication: but the rule does not apply where the devise, after the death of A., is to the heir and other persons as joint tenants, or tenants in common.

Devise.

[22]

Fawlkner v. Fawlkner.

Estate by Implication.

1 Vern. 22.

Devise to Stranger after Death of A. — No Life Estate by Implication.

[The second point in the case is reported as follows :]

In this case the copyholder devises to J. S., then under wards, for twenty years after the death of his wife, to raise portions for his younger children, and the question is, whether the feme had not by implication an estate for life.

The LORD CHANCELLOR, Lord NOTTINGHAM, said, that where such a devise is made to the heir, there indeed an estate shall arise

to the wife by implication; but when it is devised to a stranger, as in this case, there, in the meantime, it shall descend to the heir.

Ralph v. Carrick.

11 Ch. D. 873-888 (s. c. 48 L. J. Ch. 801).

Will. Bequest after Death of Wife. - Life Estate by Implication.- [873] Descendants taking Parent's Share.

A testator, who died in June, 1837, gave to trustees the whole of his property in trust for the payment of his debts, with full power to sell all or any part of his estates or to demise the same; and directed them out of the moneys produced, or out of the rents, to pay his testamentary expenses and debts, and then gave certain legacies, and directed that after the death of his wife, and after the payment of all debts and legacies, the whole residue of all his remaining property should be divided into twelve portions, three of which should be given "to the children" of his late aunt, Mrs. W., " equally among them, the descendants, if any, of those who might have died being entitled to the benefit which their deceased parent would have received had he or she been then alive,” with similar gifts to the "children and descendants" of his other aunts; "and should there be no children or lawful descendants of any of his aunts remaining at the time the bequests should become payable, then the portions were to fall into the residuary fund. The testator declared that it should not be incumbent on his executors to pay the legacies sooner than two years after his decease, nor to divide the residue amongst his relatives until two years after the death of his wife, and made provision for payment of an annuity of £700 to which his wife was entitled under her marriage settlement. The wife died in 1876. The testator's co-heirs were certain of the children of the aunts, and his next of kin were certain children of the aunts. The children of the aunts were all dead, but many of them had left children and grandchildren:

Held (affirming the decision of HALL, V.-C.), that the widow did not take a life estate by implication.

A life estate in A. B. will not be implied from a gift on the death of A. B. to the testator's heir-at-law or next of kin along with other persons.

This case came before the Court on an appeal by the per- [874] sonal representative of the widow of the testator in the cause from a decision of Vice-Chancellor HALL holding that she did not take a life estate in the testator's property. The case is reported in 5 Ch. D. 984.

W. Pearson, Q. C., and Byrne, for the appellant:

If a person gives real estate after the death of A. to a person who happens to be his own heir-at-law, A. takes a life estate. So if he

No. 24. Ralph v. Carrick, 11 Ch. D. 874, 875.

gives personalty after the death of A. to his sole next of kin. When the ulterior gift is to other persons along with the heir or next of kin, the case is more doubtful. The issue, it must be observed, take only by way of substitution, the children being the primary objects of gift, and we contend that if after the death of A. there is a gift to B., who is the heir-at-law, with a substitutionary gift in the event of B.'s death, the construction is the same as if there was no such gift over. Unless some rule of law interferes, a will ought to be construed as an ordinary intelligent person would construe it; and a gift to the heir-at-law along with somebody else at a future time shows that the heir is not to take at once. Now as to the cases where the heir-at-law or next of kin are some only of the class of ulterior takers, Hutton v. Simpson, 2 Vern. 722, is in our favour, but as the inaccuracy of that report is shown in Rex v. Inhabitants of Ringstead, 9 B. & C. 218 (32 R. R. 648), we cannot rely on it. The cases of Blackwell v. Bull, 1 Keen, 176, Bird v. Hunsdon, 2 Sw. 342, and Cockshott v. Cockshott, 2 Coll. 432, support our contention.

[* 875] * [COTTON, L. J.-I do not find that in any of the cases the rule is laid down that a gift to the heir-at-law along with others, after the death of A. B., raises the implication of a life estate in A. They seem to go on the ground that, taking the whole will together, an intention to give a life estate was to be discovered.]

In Blackwell v. Bull, there was nothing else from which to raise the implication. Humphreys v. Humphreys, L. R. 4 Eq. 475, is in our favour, as also Roe v. Summerset, 5 Burr. 2608, there referred to. In Jarman on Wills, 3rd ed. vol. i. p. 497, it is laid down that on a devise to one of several co-heirs after the death of another, the implication does arise, but that on a devise to an heir along with others it does not. Yet the only case he refers to on the latter point is Blackwell v. Bull, which decides the contrary. Aspinall v. Petvin, 1 S. & S. 544 (24 R. R. 222), is relied on against us, but that case went on the ground that the future devise was to a stranger. In re Smith's Trusts, L. R. 1 Eq. 79, shows what circumstances the Court will take into consideration. Cock v. Cock, 21 W. R. 807, is an instance of implication from a gift to several of the next of kin after the death of the other of them. The VICECHANCELLOR has not attributed sufficient importance to the fact that the gift to the issue is merely substitutionary.

Mackeson, Q. C., and W. W. Karslake, Dickinson, Q. C., and H. A. Giffard, Horne, Bristowe, Q. C., and G. I. F. Cooke, for the respondents, were not called on.

JAMES, L. J.:

I am of opinion that it is impossible for us to differ from the VICE-CHANCELLOR'S conclusion as to the meaning of this will. Possibly we may say, as was said by Lord ALVANLEY in Upton v. Lord Ferrers, 5 Ves. 800 (5 R. R. 167), that a private man would undoubtedly say that the testator must have intended his wife to take for her life. Courts of law, however, as his Lordship went on to observe, have always said that they cannot in such a case as this draw that inference.

*Where there is a gift to the heir-at-law after the [* 876] death of A. B., that gift is useless except for the purpose

of expressing that the heir-at-law is not to take till after the death of A. B., and the inference has been drawn from that that A. B., after and not until whose death he is to get it, takes it in the mean time. The same principle has been applied to the case of next of kin. Where the gift is not a gift simpliciter to the person who was heir-at-law or next of kin at the date of the will, all the cases except the case before Vice-Chancellor STUART, which is inconsistent with the current of authority, treat a future gift to persons of whom the heir-at-law is one as insufficient to raise the implication. Here the ultimate gift is to a class of persons to be ascertained at the death of the wife. It is not a gift to a person who is heir-at-law or next of kin, but must be dealt with as a gift to persons who do not stand in either of those positions, and in that case there is no implication in favour of the wife. If we held that there was, we should be deciding that A. B. is to have a life estate merely because the gift of the property is postponed till after A. B.'s death, which is in contravention of the rule laid down. by the authorities. There is nothing in this case except that the gift is not to take place till after the death of A. B., with a direction that the estate shall not be sold for two years, which does not seem to make any difference. It is a mere case of a gift to a class of persons after the death of another person, those persons not being necessarily heirs-at-law or next of kin of the testator. I do not think it necessary to go through the cases which the VICECHANCELLOR has gone through, and I need only say that I agree

with him, except that I think the cases are rather stronger than he has represented them.

BRETT, L. J.:

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 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.

[* 877] an estate for her life, what

The real question then is, what, according to recognised rules, is the construction of this will? The first argument was, that in order to give an estate for life by implication, it suffices that some one of the persons to whom the property is given after the decease of the person named in the will should be the heir-at-law or next of kin. If that rule were really established as a rule of construction it would be applicable to this will, and we ought to decide according to it; but to my mind, not only is it not made out that that is such a rule, but the contrary is made out. It seems to me that in Aspinall v. Petvin, 1 S. & S. 544 (24 R. R. 222), and in Stevens v. Hale, 2 Dr. & Sm. 22, the law is laid down. directly to the contrary of the rule contended for. It is true that the rule laid down by Vice-Chancellor STUART in Humphreys v. Humphreys, L. R. 4 Eq. 475, would support the appellant's case, and if the authorities had not decided the contrary I should have been happy to hold with him what he was inclined to hold in that case, but I think that the authorities are conclusive against that view. It might have been said that the case of Hutton v. Simpson, 2 Vern. 722, was an authority in favour of that proposition, but when that case was examined by Mr. Justice BAYLEY in the case of Rex v. Inhabitants of Ringstead, 9 B. & C. 218 (32 R. R. 648), it was found not to be so. The proposition contended for by the appellant is not made out by any case. It has in its support the dictum in Humphreys v. Humphreys, but I am sorry to say I think that dictum cannot be supported. Unless, therefore, there are