Nos. 29, 30. - Melsom v. Awdry; Wake v. Varah. Notes. child or children for life, if they survived, and afterwards to their issue. I think the case is decided by that of Waite v. Littlewood, L. R. 8 Ch. 70, and I think the language of the will in the present case is stronger than it was in that case in favour of the construction adopted, because here there is a clearer intention to benefit the children and their issue, and no one else. I also prefer resting the conclusion upon grounds similar to those stated by Lord SELBORNE in that case, rather than adopting any canon of construction by reading one word to signify another. ENGLISH NOTES. The authorities on the point dealt with in the rule are very fully commented on and classified in a judgment of Kay, J., in In re Bowman, Whytehead v. Boulton (1889), 41 Ch. D. 525, 60 L. T. 888, 37 W. R. 583. In that case the testatrix bequeathed £8000 to her nephew upon trust to invest and pay the income equally amongst her four nieces during their respective lives, and after the decease of any of them to pay the principal of her share to or among her children as she should appoint, and in default of appointment to pay the same equally amongst such children, the shares of sons to be vested at twenty-one, and the shares of daughters at twenty-one or marriage, with benefit of survivorship among them as to the original, and accuring shares of any of them who should die before attaining a vested interest, and she gave her said nephew power of advancement and maintenance in favour of her niece's children and continued: "And in case any of my nieces shall die without having any children who shall have attained a vested interest, I give the share of such niece after her decease, and also the interest thereof, to my said nephew, his executors and administrators, upon trust to pay and dispose thereof to or among her surviving sisters, and their respective children, in the same manner as I have heretofore directed respecting their original shares," and she gave the residue to her said nephew. The four nieces A., B., C., and D. survived the testatrix. A. died first, leaving three children. Next B. died without issue, and the nephew distributed B.'s share in thirds, giving one-third to the children of A., and one-third each to the two surviving nieces. The summons was taken out after the death of the nephew by his executor raising the question whether the division had been rightly made, and a similar question as to the share of C., who had also died without issue. KAY, J., on an elaborate review of the cases, held that the principle of division which had been adopted by the nephew was right, and that the decisions establish the following propositions: "Where Nos. 29, 30.- Melsom v. Awdry; Wake v. Varah. - Notes. the gift is to A., B., and C. equally for their respective lives, and after the death of any, to his children, but if any die without children, to the survivors for life with remainder to their children, only children. of survivors can take under the gift over. If to similar words there is added a limitation over, if all the tenants for life die without children, then the children of a predeceased tenant for life participate in the share of one who dies without children after their parent. They also participate, although there is no general gift over, where the limitations are to A., B., and C. equally for their respective lives, and after the death of any, to his children, and if any die without children, to the surviving tenant for life and their respective children, in the same manner as their original shares." The rules so laid down by KAY, J., are referred to in a judgment of STIRLING, J., in the case of In re Rubbins, Gill v. Woorall (1898), 78 L. T. 218, where the will, after a direction to trustees which was construed as a gift of the income to two daughters, subject to an allowance to a son, and subject to be divested to the extent of one-third in case of the death of the son leaving children, with a gift over of the capital in thirds to the children of his son and two daughters respectively, contained a proviso in these terms: "Provided nevertheless that in case of the death of any of my children without leaving lawful issue, the part... so given . . . to his or her issue shall go and be divided by and between the issue of the survivor or survivors of my said children in the same manner and proportions, and under the same trusts herein before given and bequeathed per stirpes." On an elaborate analysis of the effect of the various constructions which might be suggested, the learned Judge arrived at the conclusion that the construction of the clause did not come within the rules laid down by KAy, J., and that "survivor or survivors" in the proviso must be read in their literal sense; or in other words, that no issue of a child would take the accruing share of a child who died without leaving issue, unless the child. who left issue had survived the child who died without leaving issue. AMERICAN NOTES. The rule above stated, and the English authorities, are followed by the Courts of several American states, though the Courts of other states follow a different rule. Thus, in Denny v. Kettell, 135 Massachusetts, 138, a testator left a fund in trust, and provided that, after the payment of certain legacies and the termination of certain life estates, the trustee should pay over "all the residue of said trust fund, in equal portions, to my surviving nephews and nieces." It was held, that only those nephews and nieces were entitled to take who were living when the time for the final distribution came; and that the representatives of a nephew who survived the testator, but died before the Nos. 29, 30. ... · time for the final distribution, were not entitled to share therein. Mr. Justice CHARLES ALLEN, for the Court, said: The testator had in mind, in these clauses, a later period of survivorship than his own death. All the residue of said trust fund, which was finally to be divided, was what would be left after the end of both of the life estates, and after the payment of all of the specific sums to the different persons and societies named. This residue was not ascertainable till the time came for its distribution. The word 'surviving' more naturally relates to that time when the residue was to be ascertained and distributed. This construction seems best to carry out the apparent intention of the testator, and is also in accord with the course of the more recent decisions, under wills somewhat similar. 2 Jarman on Wills (5th Am. ed. by Bigelow), 154 n., 727–738. See also Hulburt v. Emerson, 16 Massachusetts, 241; Olney v. Hull, 21 Pickering, 311. The rule that the law leans towards vested remainders always yields when a contrary intention of the testator is to be gathered from the fair construction of the whole will; and where the question is to what period words of survivorship shall be referred, it is often more reasonable to suppose that the testator meant the period of distribution, even where real estate alone is involved." To like effect, see Olney v. Hull, 21 Pickering (Mass.), 311; Brooks v. Carter, 118 Massachusetts, 407; Thomson v. Ludington, 104 id. 193; Colby v. Duncan, 139 id. 398; Morrill v. Phillips, 142 id. 240; Coveny v. McLaughlin, 148 id. 576; Bigelow v. Clap, 166 id. 88; Hale v. Hobson, 167 id. 397; Bayless v. Prescott, 79 Kentucky, 252; Reiff's Appeal, 124 Pennsylvania State, 145; Branson v. Hill, 31 Maryland, 181; Van Tilburgh v. Hollingshead, 14 New Jersey Equity, 35; Slack v. Bird, 23 New Jersey Equity, 238; Den v. Sayre, 2 New Jersey Law, 598; Spear v. Fogg, 87 Maine, 132. On the other hand, in several states it is held that a gift after a life estate to the testator's surviving children, vests in such of his children as survive him, and not in such as are surviving at the death of the life tenant, the term "surviving" being taken to refer to the death of the testator. Vanderzer v. Slingerland, 103 New York, 47; Stevenson v. Lesley, 70 id. 512; Embury v. Sheldon, 68 id. 227; Livingston v. Greene, 52 id. 118; Byrnes v. Stilwell, 103 id. 453; Scott v. Guernsey, 48 id. 106; Shutt v. Rambo, 57 Pennsylvania State, 149; Stevenson v. Fox, 125 id. 568; Porter v. Porter, 50 Michigan, 456; Jameson v. Jameson, 86 Virginia, 51; Clanton v. Estes, 77 Georgia, 352. These cases were doubtless decided upon the principle that where there is any doubt as to the application of the term "surviving," the law favors the vesting of estates at the death of the testator. Other words used in connection with the word "survivors" may make it certain that the persons intended are those surviving the life tenant, and not those surviving the testator; as where a remainder is given after a life estate to the children then living of the testator, or to survivors then living of any other designated class. Hills v. Barnard, 152 Massachusetts, 67; Coveny v. McLaughlin, 148 id. 576; Mullarkey v. Sullivan, 136 New York, 227; Patchen v. Patchen, 121 New York, 432; Colton v. Fox, 67 id. 348; Shanks v. Mills, 25 South Carolina, 358; Simpson v. Cherry, 34 id. 68; Darnell v. Barton, 75 Georgia, 377; In re Patrick's Estate, 162 Pennsylvania State, 175; Williamson v. Chamberlain, 10 No. 31. Stringer v. Phillips, 1 Eq. Ca. Abr. 292, 293. Rule. New Jersey Equity, 373; Jones v. Jones, 46 New Jersey Equity, 554; Naylor v. Godman, 109 Missouri, 543; Smith v. Block, 29 Ohio State, 488; Union Mut. Association v. Montgomery, 70 Michigan, 587. As a general rule, words of survivorship in a legacy are referable to the time of the testator's decease, so as to avoid lapse: but, where a life or other interest is interposed before the period of distribution, the intent (according to the more modern authorities) is inferred that the survivorship relates to the latter period. [292] One devised £100 to five, equally to be divided between them and the survivors and survivor of them; and if A. (one of the five) died before marriage, her share to go over to another person; and it was decreed (at the Rolls), that they took this £100 as tenants. in common, and that the words," and the survivors and survivor of them," to make them joint tenants, would be a contradiction to the first words, whereby they were made tenants in common, and that they should be construed to extend only to such who were survivors at the death of the testator, and therefore inserted to prevent a lapse; and this is the stronger, by the limitation over of A.'s share upon a contingency, by which it is plain the testator did not intend her to be a joint tenant with the rest; and as the devise was to all five, they must all take alike; and not A. to be tenant in common, and the other four joint [293] tenants. Words of survivorship in gift after a life estate are to be referred to [11] the period of division and enjoyment, unless there be special intent to the contrary. The bill stated, that under the wills of Mary Simons and Ann Simons, deceased, Deborah Saunder, the late wife of Arthur Saunder, deceased, was authorised and empowered to dispose, by her will, of the principal sum of £540, being the remainder of a sum of £600, after deducting therefrom the duty payable upon legacies; and that on or about the 9th November, 1811, said Deborah Saunder, pursuant to said power, made and published her last will and testament in writing, of that date, which was executed by her in the presence of, and attested by, three witnesses; and thereby, after reciting, amongst other things, that said * sum of £540, [*12] being the remainder of £600 after such deduction as aforesaid, was bequeathed to her, and at her sole disposal, by the respective wills of said Mary Simons and Ann Simons, said testatrix gave, directed, appointed, and bequeathed unto her friends the defendants, John Wolcott, of, &c., and John Agg, of, &c., the third part or share of her, said testatrix, of and in certain estates therein mentioned, and all other the real and personal estate and effects over which she then had, or at the time of her decease should have, any power in law or equity, to hold to them, their heirs, executors, administrators, and assigns, according to the nature of the same respectively, in trust, to pay to, or permit and suffer her husband, said Arthur Saunder, to have and enjoy the rents, interest, dividends, produce, and profits thereof during his natural life; and upon the decease of her said husband, the testatrix directed that said sum of £540, and all other her personal estate, should be equally divided between her two sons Arthur Saunder and George Saunder, and plaintiff Ann Cawley Cripps, her daughter, and the survivors or survivor of them, share and share alike; and she appointed her son George Saunder, sole executor of her said will:- That the testatrix afterwards died, leaving said Arthur Saunder the elder, her husband, surviving her; and that upon her death said George Saun |