Survivorship referred to

period of distribution.

to his wife for life, and directed that after her death the annuity should be equally divided between his children (naming six) or the survivors or survivor. Sir L. Shadwell held that such of the legatees as survived the widow were entitled in equal shares. (ƒ)

The construction adopted in this case seems to agree with and to be supported in its full extent by the earlier case of Pope v. Whitcombe, (g) which is another important authority for the general rule which refers survivorship to the period of distribution. The testatrix gave the interest of the residue to her brother, during his life, and after his death she gave the residue to her executors, in trust for four persons by name, and the survivors and survivor of them, share and share alike, to be paid to them respectively when they should attain twenty-one, with interest in the meantime. Of these four persons, two died during the life of the brother; Lord Eldon held that they did not take vested interests in any part of the residue, but that the whole belonged to the two survivors; such being, in his opinion, the intention of the testatrix.

[So in Neathway v. Reed, (h) where a testator bequeathed the interest of his funded property to his sister for her life, and after her decease such property to be equally divided between her surviving children; in another part of his will he had, amongst other legacies, made an immediate bequest to his sister's surviving children of £30 each. Lord Cranworth with K. Bruce and Turner, L. JJ., decided that the word "surviving" in the former bequest referred to the sister's death. The L. C. said, "According to the old principles of law the rule was that the period of vesting should be at the moment of the testator's death. Now, however, in putting a construction on the word 'surviving' reference is had to the intention of the testator as discoverable from the whole will. In my opinion when an estate is given to a person for life, and after his death to his surviving child

[(h) 3 D., M. & G. 18. See also Williams v. Tartt, 2 Coll. 85; Eaton v. Barker, Id. 124; Buckle v. Fawcett, 4 Hare 536; Hesketh v. Megennis, 27 Beav. 395; Young v. Davies, 2 Dr. & Sm. 167; Thompson v. Thompson, 29 Beav. 654; Whitton. Field, 9 Beav. 368; Taylor v. Beverley, 1 Coll. 108; In re Pritchard's Trusts, 3 Drew. 163. The last three cases were aided by context.

ren, those only of the children who survive the *tenant for life will take." And Sir G. Turner observed that if the gift had been to the sister for life and after her decease to "her children" without the word "surviving," the children living at the testatrix's death would have taken that some effect must be given to the word "surviving," and that it must mean surviving the sister. (i) The court also thought their decision could not be influenced by the fact that in the immediate bequest the same word must have a different meaning; for in that place there was no other meaning which it could have. (k)

Sir G. Turner's observation is applicable only where the gift is to a class, or to individuals as joint tenants. But it is not to be understood as confining the rule to such cases. In Cripps v. Wolcott itself and other cases already noticed the gifts were to individuals as tenants in common; and in Hearn v. Baker (1) where a testator gave all his estate and effects to his wife for life, and after her death bequeathed a sumn of stock to his five cousins (naming them) or the survivors of them as tenants in common; it was held by Sir W. P. Wood, V. C., that "survivors" had reference to the death of the widow, and that one cousin who alone survived her was entitled to the whole fund. So in Vorley v. Richardson (m) where there was a general bequest in trust for the testator's wife until his youngest child should attain twenty-one, and on that event happening to be divided amongst his said wife and all his children (naming them) as tenants in common, with benefit of survivorship; it was held that the words of survivorship being connected with the period of division must prima facie be taken to refer to that period.

So where the income of personal property is bequeathed to several persons for life, and after the death of all to their surviving children, those children alone take who are living at the death of the last surviving tenant for life. (n) And where the *gift is to A for life, and at

(i) See also In re Crawhall's Trusts, 8 D., M. & G. 480.

(k) See also Young v. Davies, 2 Dr. & Sm. 167, 170, and more fully 32 L. J., Ch. 372; also Salisbury v. Petty, 3 Hare 86, 93; and cf. Gooch v. Slater, 3 Jur. (N. S.) 881, where the phrase "with benefit of survivorship" used with reference to four different gifts, some immediate and others not, but all vested, was referred to testator's death in every instance.

(1) 2 K. & J. 383.

(m) 8 D., M. & G. 126; also Naylor v. Robson, 34 Beav. 571.

(n) Stevenson v. Gullan, 18 Beav. 590. See also per Wood, V. C., In re Hopkins' Trusts, 2 H. & M. 411. Gummoe v. Howes, 23 Beav. 184, 192, is not inconsistent with the rule. The gift was to A and B for their lives as tenants in common; and in case of the death of either without issue, to the survivor; but if either should die

his death to B for life, and at his death to the surviving children of C, only those children are entitled who are living at the actual period of distribution, whether A or B dies last.] (0)

In this state of the authorities one scarcely need hesitate to affirm, that the rule which reads a gift to survivors simply as applying to objects living at the death of the testator is confined to those cases in which there is no other period

Result of the -cases as to

personalty.

to which survivorship can be referred; and that where such gift is preceded by a life or other prior interest, it takes effect in favor of those who survive the period of distribution, and of those only.

If tenant for

life dies before

testator, death

of the latter is

the period.

[If the tenant for life dies before the testator, the death of the latter, as the period of actual distribution, will also be regarded as the period of survivorship. (p)

The same principle is clearly applicable where there is no prior particular bequest, but the gift to the legatees among whom the survivorship is to take place includes all of the prescribed class who may come into existence before a stated period. Thus, if a testator make a bequest to all the children of A who shall be born in their father's lifetime or within nine months after his death, as tenants in common, with benefit of survivorship; those only who survive their father or the nine months named are entitled to a share.] (q) But the cases of Garland v. Thomas, Edwards v. Symons, and Doe v. Prigg (the last decided after Cripps v. Wolcott), made it doubtful whether this rule applied to devises of real estate. It is difficult to discover any ground for making them the subject of a different rule, unless a reason can be found in the greater tendency in devises of real estate towards a vesting of the inte

Distinction in regard to real estate rejected.

leaving issue, her share was given to her children and after the death of both the whole was to be conveyed, transferred, or paid to the heirs of their bodies (construed children) share and share alike, or to the survivors or survivor of them: but if A and B should die without children, then over. It was held that a child of A, which survived its parent but died before B, was entitled to a share. In fact, the gift over after the death of both, which, standing alone, might have given B a life interest in the share of A after her death, and have pointed out the death of B as the period of survivorship for all the

children, was explained by the previous gift over, on the death of each parent, of her share to her children; so that survivorship in the several families was referred to a different period for each family.

(0) Knight v. Poole, 32 Beav. 548; In re Fox's Will, 35 Beav. 163; Howard v. Collins, L. R., 5 Eq. 349. But see Drakeford v. Drakeford, 33 Beav. 43.

(p) Spurrell v. Spurrell, 11 Hare 154. (q) Hodson v. Micklethwaite, 2 Drew. 294. See also Blewitt v. Roberts, Cr. & Ph. 274, 283 (as to the £100 annuity); Davies v. Thorns, 3 De G. & S. 347.

rests of the devisees. [The distinction was repeatedly pronounced to be unsound; (r) and at length in In re Gregson's *Trusts, (s) it was held by K. Bruce and Turner, L. JJ., to be untenable. There a testator devised real estate to his wife for life, and on her death "to be shared share and share alike amongst the following persons, or the survivors of them, viz." (naming them); and it was decided that the question being one of construction, and of the testator's intention, a forced interpretation could not be put on the words in order that the remainder might by early vesting escape the liability to destruction and other inconveniences of tenure incident to contingent remainders: and that here, no less than in the case of personal estate, survivorship must be referred to the death of the tenant for life.

Rule in Cripps

v. Wolcott trary inten

yields to con

tion.

The rule in Cripps v. Wolcott is not only settled, but is one which the court never seeks to evade by slight distinctions. But, of course, it must yield to a context clearly indicating a contrary intention. (t) Thus, in Shailer v. Groves, (u) where a testator bequeathed £1000 stock to his wife for her life, at her decease one-half of the produce to be received and divided amongst his surviving brothers and sister or (v) their issue, share and share alike, Sir J. Wigram decided that the word "surviving" had reference to the testator's death. He said: "It is clear that the testator must have intended a period of distribution later in point of time than the gift of the subject of distribution, and that he intended to substitute for the primary objects of his gift the issue of such of them as should die

(r) Wordsworth v. Wood, 1 H. L. Cas. 129; Buckle v. Fawcett, 4 Hare 536.

(8) 2 D., J. & S. 428, reversing Wood, V. C., who yielded to the authorities, 33 L. J., Ch. 531. Sir E. Sugden also had treated Doe v. Prigg as a binding authority, see 1 D. & War. 499.

To surviving

brothers or

(by substitu

tion) to their

issue.

reports, however, differ from 6 Hare in a still more remarkable manner: for they represent the decision to have been, that the word “surviving" referred to the period of distribution; and the decree is drawn up in accordance with this latter view. But Mr. Hare's report of the

(t) See per Wood, V. C., 2 H. & M. judgment is probably correct; the word 414.

(u) 6 Hare 162.

(v) The report 6 Hare gives "and their issue." But 11 Jur. 485 and 16 L. J., Ch. 367 give "or," and the briefs of counsel in the cause (now in the editor's possession) agree with them. These latter

"their" being of equal force with the word "them" in Tytherleigh v. Harbin, 6 Sim. 329, and Gray v. Garman, 2 Hare 268. See also Sir J. K. Bruce's judgment in Kidd v. North, 3 D., M. & G. 951, 2d paragraph.

between the time of the gift and the time of the distribution."-" The fund must be divided in equal parts among the brothers and sisters surviving at the death of the testator. The issue of those who died in the lifetime of the tenant for life leaving issue will take the shares of the parents for whom they are substituted." (x)

*So in Rogers v. Towsey, (y) where a testator bequeathed to each of his two sisters the interest of £5000 stock for her life, and as each died the said stock to be equally divided between the testator's nieces A, B, C, D and E, or the survivors of them: he bequeathed one moiety of the residue to A, and the other moiety equally between B and C. "In case his niece C should not survive him, her children" to stand in her place, "and the same of any other of his nieces who might marry and leave children." The same judge, assuming the general rule to be as stated in Cripps v. Wolcott, held that the last clause showed a special intent on the testator's part to refer the word "survivors" to his own death.]

Rule where

gift to sur

vivors is contingent.

It is to be observed, that where the gift to survivors is to take effect upon a contingency, none of the reasoning (infirm as that reasoning is) upon which it was held to refer to survivors at the death of the testator applies; for it cannot for an instant be contended that a tenancy in common is inconsistent with such a qualified survivorship. The only question, therefore, in such a case is, whether the gift was meant to extend to survivors indefinitely, (i. e., whenever the contingency should happen,) or is restricted to survivorship within a given period after the testator's decease. Thus, in Jenour v. Jenour, (2) where a testator bequeathed £400 long anns. to his sister for life, and declared that £200 should be his brother's for life if he survived his sister, and after his decease should be equally divided between his two nephews J. and M., and go to the survivor of them in case his brother should leave no lawful issue; if he should, such issue should be in place of their father with regard to the said annuities. The sister and brother having both died in the lifetime of J. and M., M. claimed to be absolutely entitled to a moiety. The ques

Survivorship confined to the death of

the tenant for life.

(x) See also In re Hopkins' Trust, 2 H. & M. 411; Evans v. Evans, 25 Beav. 81. As to the assumption in the latter case that "death without issue" meant death in the lifetime of the tenant for life, see Olivant v. Wright, 1 Ch. D. 346, post ch.

XLIX. And see and consider Blackmore v. Snee, 1 De G. & J. 455.

(y) 9 Jur. 575; cf. Bouverie v. Bouverie, 2 Phil. 349.]

(z) 10 Ves. 562. [See also Bird . Swales, 2 Jur. (N. S.) 273.]