Accruing shares not necessarily subject as the original. governs the preceding cases, if original shares are given expressly for life, and accruing shares indefinitely (which of course carries the absolute interest,) the latter are not considered as impliedly subject to the restriction in point of interest imposed on the original shares; (g) for although it is highly probable that the testator had the same intention in regard to the accruing and the original shares, yet this is not so clear as to amount to what the law deems a necessary implication. (h) So, where a testator limits an estate to three or more objects, subject to many provisions, with a devise over of the whole in case of the death of any one to the survivors, expressly subject to the provisions contained in the original gift, and goes on to limit the property, in case of the death of any of such survivors, to the remaining survivors or survivor, but does not repeat the qualifying words, it has been held that a similarity of intention is not to be implied in regard to the last limitation. Express provision in one limitation to survivors not extended by implication to an ulterior similar limitation of the same subject to part of the former objects. Thus, in Georges v. Georges, (i) where the testator gave the residue of his estate, both real and personal, to trustees, in trust to keep the same together till January 1st, 1804, and till that period to dispose of the profits for the benefit of his daughter and granddaughters as therein directed; and then as to the final *disposition of the rest and residue of the estate, he declared that all such parts thereof as consisted of real estates, slaves, &c., should be upon further trust, that his said trustees should immediately after the arrival of the period aforementioned divide the same into three equal parts or shares, to and for the separate use and benefit of his daughter F., his granddaughter R., and his granddaughter S., whom he thereby willed and ordained to be his residuary devisees and legatees in manner and form following (that is to say,) &c. The testator then proceeded to declare the trusts of the respective thirds in favor of his daughter and grand (g) Vandergucht v. Blake, 2 Ves., Jr., 534; [Ranelagh v. Ranelagh, 4 Beav. 419; Ware v. Watson, 7 D., M. & G. 248. See also Milsom v. Awdry, 5 Ves. 465.] But in Doe d. Gigg v. Bradley, 16 East 399, Lord Ellenborough cut down the gift of a leasehold house to survivors indefinitely to an interest for life, on no other ground, it would seem, than that words of limitation were used in the original gift, not in the gift to survivors, which has not in general been considered as affording more than conjecture. The will certainly was very obscure. (h) As to what is and is not such, see also ante vol. I., p. *525. (i) Hayes' Inquiry 52. daughters respectively, and their respective children, with a proviso that if one of his three residuary devisees should die before the period should arrive for making the division without issue, or leaving issue and such issue should die before that period, then the division should be made between the survivors of his said residuary devisees aforenamed, agreeable to the same directions, and subject to the same terms, limitations and restrictions as were thereinbefore expressed and declared, and that in the same manner as if all three of his said residuary legatees and devisees were then alive; and if two of them should depart this life before the arrival of such period without issue then living as aforesaid, then he declared it to be his further will and desire that the whole should be in trust, and to and for the use of the survivor or her issue living at the period aforesaid. F. and S. died before January 1st, 1804, without issue then living; but R. was living at that period. The question was, whether the will was to be read as if the qualifying words, "agreeable to the same directions, and subject to the same terms, limitations," &c., which occurred after the gift to the two surviving, had also been inserted after the gift to the one surviving. It was contended that necessary implication does not mean only what arises from force of language or plain logical conclusion, but that in a moral sense, and not in a grammatical sense, it is when there exists so strong a probability of intent that it would be irrational to draw a contrary inference. But Lord Eldon, after great consideration, held that the words of the will did not raise a necessary inference that the gift of the whole to the one surviving was intended to be subject to the same limitations as the share which that survivor would have taken on a division between the three, or the two, would, by the express words of the will, have been subject to, and that such a construction would be mainly founded on conjecture. Qualifications applied to expressly original extended by accruing shares not *The principle that restrictions or qualifications applied to original shares are not, by necessary inference, to be extended to accruing shares, is further illustrated by the case of Gibbons v. Langdon, (k) where a testator bequeathed £2800 stock, in trust for his wife for life, and at her decease to be equally divided between his three sons and daughter, the interest of his daughter's share to be paid to her for life, and at her decease the said share to be equally divided among her children living at the testator's decease at the ages therein mentioned. implication to shares. (k) 6 Sim. 260. If his daughter had no children living at her decease, her share to be equally divided among such of his sons who were then living, or their issue; but if any of his said sons and daughter should die before his said wife and without leaving any issue, such share or shares to be equally divided among his other children; but if all his children should die without issue before his said wife, then to his next of kin. One of the sons died in the lifetime of the wife and without issue, and the question was, whether the share of the daughter in her deceased brother's share was subject to the trusts affecting her original share. Sir L. Shadwell, V. C., decided in the negative, observing that it would be nothing but conjecture if he were to say that the testator meant his daughter to take her accruing share with the same limitations over to her children as her original share was subject to. Upon the same principle it is clear that, where the subject of gift is disposed of among the original objects in unequal shares, there is no necessary inference, in the absence of any declared intimation of intention to assimilate the accruing to the original shares, that the survivors are to take accruing shares in the same relative proportions. () [Neither will words creating a tenancy in common in a gift of original shares be extended by implication to accrued shares. (m) But in Eyre v. Marsden, (n) it followed from the construction put on the will by Lord Langdale, M. R., that the interest of F. in the accrued shares must be in proportion to his interest in the original shares. Unequal division. Gift of in the same manner as original. Survivorship clauses are not often so split up as in Georges v. Georges: where as more commonly happens there is one accrued shares general survivorship clause, the words "in manner aforesaid," or similar terms of reference occuring therein, will have the effect of sub*jecting all the accrued shares to the same terms, restrictions and limitations over as the original shares. (0) And where a declaration, that accruing shares should be held to include subject to the same trusts as original shares, was followed accrued shares (in a settlement) by a clause which gave to each cestui que trust who should die without children power to appoint an aliquot part of her "share;" it was held by Sir J. "Shares " original and consolidated by previous provision. (1) Walker v. Main, 1 J. & W. 1, stated pealed on this point, 4 My. & C. 231. post. (0) Milsom v. Awdry, 5 Ves., Jr., 465, [(m) Jones v. Hall, 16 Sim. 500; Leigh stated ante p. *690; Giles v. Melsom, L. v. Mosley, 14 Beav. 605. R., 5 C. P. 614, 6 C. P. 532, 6 H. L. 24. (n) 2 Kee. 554, ante p. *708; not ap Parker, V. C., that the deed had so consolidated the accruing and original shares in the first place as to render it unnecessary to carry on separate accounts of them; and that the word "share," in the subsequent provision, might thus be held to include the whole fund which, under the previous trusts, belonged to either of the beneficiaries and her children. (p) And in In re Jarman's Trusts, (q) where, after a life estate in the whole to his wife, a testator bequeathed a sum of money to his three daughters in equal shares, and gave the residue amongst them in certain proportions, adding "the share or shares of my said daughters under my will to be for their sole and separate use;" and if any of them died without issue before the wife her or their share or shares, accruing as well as original, were given to the survivors or survivor; it was held by Sir W. P. Wood, V. C., that the words of the separate use clause were large enough to affect the accrued as well as the original shares. Though not distinctly assigned by the court as the reason for this decision there would seem in fact to have been a sufficient consolidation of shares within Sir J. Parker's principle. That the consolidating clause followed, instead of preceding, the clause in dispute was of course immaterial. Survivorship amongst a more extensive class than Again, if there be a gift to several (but not all) of a class (as children) with a gift over in case of the death of any to" the surviving children," all the children will be included in the latter gift and not those only who partake of the original gift; although those who do not so partake are otherwise donees. provided for. (r) the original At what period class entitled to accruing shares is to tained. If the bequest is to several as tenants in common for life, and after the death of each his share is given to his children, but if he has no children then to the survivors for their respective lives and afterwards to their respective children; here the class of children to take an original share is fixed at the death of their parent; but a share accruing to the children of the same parent *on the subsequent death without children of another tenant for life will, if treated strictly as a new legacy, vest in a class to be fixed at the death of such other tenant for life. If, however, it should appear that the accruing shares are intended to go over with the original shares and to be consolidated therewith, it seems reasonable to hold that the accretions vest in the same class as the (p) In re Hutchinson's Settlement, 5 De G. & S. 681. (q) L. R., 1 Eq. 71. (r) Carver v. Burgess, 18 Beav. 541. original shares. A point of this kind occurred in In re Ridge's Trusts. (8) In that case (which has already been stated) one tenant for life died leaving issue, then another leaving none; and in the interval other issue of the first were born. The court having supplied crosslimitations between the stocks, which of course carried over accruing as well as original shares, held that the class of issue to take the accrued share must be ascertained at the same time as the class to take the original share, viz., the death of their own ancestor; otherwise a cardinal rule of construction would be contravened, viz., the rule that interests are to be vested as soon as they can be consistently with what the testator has said; (t) and moreover the gift of the whole to the issue of one tenant for life if only one left issue, would be contradicted. "Under this gift," said Sir W. James, L. J., "if one dies leaving issue and the others die afterwards without issue, the issue of the first take the whole but if they are ascertained at the death of the survivor, it must be held that the interests which the class of issue ascertained at the first daughter's death take in her share are liable to be divested so as to let in other issue, a construction which the court would not readily be induced to adopt." It is submitted however that the decision rests more securely on the consolidation of the shares; for whatever construction is adopted with regard to the vesting of additional shares, it by no means of necessity governs the construction with regard to the divesting of that which is already vested.] Effect where qualification is necessary to validity of gift of accruing shares. Here it is proper to observe, that though a departure from the ordinary rules of construction, for the purpose of bringing a devise or bequest within due limits, is not an acknowledged principle of construction, indeed is always professedly discarded; yet it is impossible to deny that, where the bequest of the accruing shares would be void for remoteness, unless the qualifications applied in terms to the original shares are extended to such *accruing shares, the courts have lent a more willing ear to such construction than the preceding cases prepare us to expect. An example of this occurs in Trickey v. Trickey, (u) where a testator bequeathed the residue of his personal estate to trustees in trust for his daughter, and Gift of accrued shares supported by engrafting thereon a qualification (s) L. R., 7 Ch. 665, stated ante p. *561. See also Heasman v. Pearse, Id. 285, where the words "then living were got over on much the same principle. (t) But the accruing share cannot be vested before the contingency happens upon which the accruer takes place.] (u) 3 My. & K. 560. |