CHAP. XXXII. Remark on preceding cases. queathed, and shall constitute a tenancy in common. But when these words are combined with, or followed by others which would make a tenancy in common inconsistent with the manifest design of the subsequent bequest of the testator, they may be taken to indicate, not the nature but the proportion, of the interest each party is to take. In the present case the bequest to G. G. and E. G., during their lives, is of the interest and dividends only of the residue of the testator's estate. The corpus of the residue is not to be divided or possessed by the legatees till after the decease both of G. G. and E. G.; and then it is to be divided amongst such of their children only as shall be living at the death of the survivor. It is clear, therefore, that the mass of the property is to be divided amongst the children who might survive both the parents, per capita and not per stirpes. This would be quite inconsistent with a tenancy in common of the parents. Again, the testator, by his care in pursuing this property through three generations, and bequeathing it, upon failure of these, to his then personal representatives, shews that he meant to die intestate of no part of it; but as the interest and dividends only are devised to his grandchildren, G. G. and E. G., and nothing is devised to their children till the death of both, it would follow, that if G. G. is not entitled to the whole interest and dividends accruing after the death of E. G., during his life, the portions of interest and dividends which she took in her lifetime would be undevised during the remainder of G. G.'s life." As in the three preceding cases no act had been done to sever the joint-tenancy (if any,) between the several devisees or legatees, it was not necessary to determine whether the effect of the will was to confer a joint interest, with its incidental right of survivorship, or to create a tenancy in common with an implied gift to the survivor for life. Indeed, no allusion is made to the latter point, except in Pearce v. Edmeades, and even there it does not appear to have formed the prevailing ground of determination, though perhaps less violence is done to the language of the will by implying a positive gift to the survivor than by rejecting the words of severance (0). CHAP. XXXII. III. It follows as a consequence of the survivorship which is incidental to a joint-tenancy, that if the devise fail as to one of the devisees, from its being originally void (p), or subsequently revoked (9), or by reason of the decease of the devisee in the testator's lifetime (r), the other or others will take the whole. But the rule is different as to tenants in common, whose shares, in case of the failure or revocation of the devise to any of them, descend to the heir at law (or if the will is subject to the new law, the residuary devisee) of the testator (s); unless (0) Where the objects are more than two, the implication, in order to complete the purpose of filling up the chasm which would otherwise occur between the decease of the first and last of the tenants for life, must either give joint estates carrying the right of survivorship, or, which would seem better, must, on the decease of each tenant for life after the first, deal with the accruing share or shares of such deceased tenant or tenants for life, in like manner. For instance, suppose the devise to be to A., B., and C., as tenants in common for life, and after the decease of the survivor over. A. dies; upon which, A.'s share passes to B. and C., it is presumed, as tenants in common. Next, B. dies; his original share de volves, by implied devise, to C., but (p) Dowset v. Sweet, Amb. 176. 136. (r) Davis v. Kemp, Cart. 45. S. C. 1 Eq. Ca. Ab. 216, pl. 7. Carth. 3. (s) Cresswell v. Cheslyn, 2 Ed. 123. S. C. on Appeal, 3 B. P. C. Toml. Ed. 246. Distinction be tween joint-te nancy and te nancy in com. mon as to lapse, &c. CHAP. XXXII. the devise be to the objects as a class, in which case the individuals composing the class at the death of the testator are entitled among them, whatever be their number, to the entirety of the subject of gift (t). Implied gift creates a tenancommon, cy in when. Effect upon power, of lapse shares. Here it may be observed, that where a trust is raised by implication, in default of execution of a power of distribution, from the absence of an express gift (u), it is now settled that the objects take as tenants in common (x); but it should seem that under an implied gift resulting from a power of selection, they are joint tenants. Where a power is given by will to appoint property of some of the among several objects, and the subject, in default of appointment, is given to them individually (and not as a class) as tenants in common, a question sometimes arises. whether, by the death of any of the objects, the power is defeated in respect of the shares of those objects. The established distinction seems to be, that if all the objects survive the testator, and one of them afterwards dies in the lifetime of the donee of the power, the power remains as to the whole (y). But, on the other hand, if any object dies in the testator's lifetime, by which the gift lapses pro tanto, the power is defeated to the same extent (z). If, however, under the gift in default of appointment, (t) But see ante, Vol. I., p. 287. (y) Boyle v. Bishop of Peterbo- (z) Reade v. Reade, 5 Ves. 744; see also 1 Sugd. Pow. 6th Ed. 534, where great pains have been taken to establish the position in the text, in opposition to some remarks of the present writer in his volume appended to the third edition of Powell on Devises, (p. 374) which remarks he has not here repeated; for though he is still unable to discover any solid ground for the alleged difference of effect in regard to the power, where the partial failure of the gift takes place before, and where it occurs after the death of the testator, yet as the cases commented on by the distinguished writer in question seem to favour such a doctrine, and as it is really of more importance that the objects are joint tenants, or the gift is to a class, of CHAP. XXXII. course the decease of any object, even in the testator's lifetime, as it does not occasion any lapse, leaves the power wholly unaffected. It may be observed that as an appointment cannot be made in favour of a deceased child, whose share under the gift over had vested, the only mode by which the testator's bounty can be made to reach his representatives is to leave a portion of the fund unappointed; in which case the representatives of the deceased child will take his share (but of course only his share) in the unappointed portion. Lord Eldon, it is true, expressed his disapproval of this "device," in Butcher v. Butcher (a); but his Lordship appears to have objected to it as proceeding upon the erroneous notion that it was necessary to enable the donee to appoint the remainder of the fund to the surviving objects; whereas, according to Boyle v. Bishop of Peterborough, his power extended over the whole fund. It may be observed, that to avoid all such questions, powers should always be framed so as to authorise an exclusive appointment to one or more of the objects, notwithstanding the recent enactment (6), which enables the donee of a power of distribution to appoint nominal shares to any of the objects. It must not be forgotten that the omission to give a share to each object would still be fatal to the appointment. the rules on such points should be certain, than that they should be decided in the manner most consistent with principle, he has not felt disposed to revive the discussion. Devise without words of limita law. I. NOTHING is better settled than that a devise of mestion under old Suages, lands, tenements, or hereditaments, (not estate,) without words of limitation, occurring in a will which is not subject to the newly enacted rules of testamentary construction, confers on the devisee an estate for life only (a), notwithstanding the testator may have commenced his will with a declaration of his intention to dispose of his whole estate (b), or may have given a nominal legacy to his heir (c), or may have declared an intention wholly (a) Taylor v. Hodges, 3 Ch. Rep. 87; Deacon v. Marsh, Moore, 594; Bullock v. Bullock, 8 Vin. Ab. 238, pl. 10; Roe d. Kirby v. Holmes, 2 Wils. 80 b.; Doe d. Bowes v. Blackett, Cowp. 235; Doe d. Crutchfield v. Pearce, 1 Pri. 353. (b) Denn v. Gaskin, Cowp. 657, S. C. Doug. 731; Doe d. Child v. (c) Roe d. Callow v. Bolton, 2 Bl. 1045; Right v. Sidebotham, Doug. 730; Roe d. Peter v. Daw, 3 Mau. & Selw. 518. |