Arthur Underhill.

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of survivorship are expressly given, such
remainder or clause will carry a donee's
original but not his accrued share of the
property ; unless the deed clearly indicates
that the donor intended the gift over not
to take effect till all the interests originally
limited in the property had failed.

(2) The same rule applies to gifts by will, subject to
this excepti(^n : If, upon the death ot a ct riaiii person,
realty be devised to the testator's heir at law, or
personalty be bequeathed to th(^ testator's next of kin
according to the statute, and no disposition of the
property during such person's life is made, an estate or
interest for \\\c in tin- property will Ix- Inld by iieces-
8ary implication to pass to such person.

" I migllf be lierfectlv Siiti-lied fli:it lie ililendeij tli:it .Xntlioiiti.N.
tlli> l:i'iy .should li:ive :iil r->.|;ile tt\' iMiierit.lIiee ill tlli'.

180 Part IV. — Intkrksts Thansfkhhed.

Art. 31. |)r()])orty. I iiii;;lit he .-^utislictl that tliat was lii- intention
otherwise than hy the words of the will : hnt I should bo
coinpclh'tl to conic to tiic same coiichisicjn as 1 do now,
luunely, that that intention is not suttici(!ntly cx|)ressed.
It is manifest that, taking either alternative ])roposition
put forward by the a])pellants, this House, if it is called
upon to give that effect to the instrument, must ])ut words
into the will in order to do it. The thing has not been
done; and I am not aware of any authority which would
lead your lordships to come to the conclusion that, because
the testator had, at some time or other, the intention in his
niiiiil to give this property to the person in <|U('stion, you
are justified in saying that he has done so by the instru-
ment which he has executed " {per Lord Halsiuuy, L.C,
in -SV-a/c'v. RawUns, [1802] A. C. 342, at p. 'UiJ).

" Bv the rules of the common law apj)lical)le to deeds,
no intention will be presumed unless it be expressed ; ami
consequently no estate will arise unless there l)e a limita-
tion to pass the estate'' (1 Prest. Est. VM)).

" Where a man devises real estate after the death of A.
to his, the testator's, heirs, it is i«aid that the heir is not to
take until after the death of A. ; and the result cannot be
arrived at without o;ivin»j A. a life estate, otherwise the
heir would take immediately, which, jiresumably, is not
intended. . . . What is the presumed intention of a
gift of personal estate to the testator's next of kin,
according to the statute, after the death of A. ? It is this :
■ 1 do not intend my personal estate to go, immediately on
my death, to the persons entitled to it by law. that is,,
according to the Statute of Distributions.' If, therefore,
you find that those persons are only to take after the
death of A., then it may be impossible to give effect to
that intention except by implying a gift of a life estate to
that person after whose death the next of kin are to take
according to the terms of the will" {jier Kekewich, J..
in AV Springfield, ('/lamhrrliii v. Sjiriiig/u'lil, [1894]
a Ch. 603, at p. 606).

Chap, I. — Gifts Geneually. ISl

It is to be uiulerstood that tho rule .stated in the article Art. 31.
as to grants has no reference to resulting trusts or uses,
but applies solely to grants in the ordinary sense of
transferring an interest.


It is submitted that, subject to the exception stated in Same rule
the second jtaragrajili. the rule as to gifts by implication '^,,\yjljj. j^jj^l
is precisely the same in the case of wills and deeds resj)ec- <liJ«iiis.
tively. In both cases the intention to make the gift must
be expressed before any estate or interest whatever can
pass. Once the intention is expressed, the extent of the
estate or interest which passes may be modified by an
intention gathered from other parts of the instrument, or
from the general purport of the instrument. See \\'illii(.m.s v.
Piwkiieu (181)^), 77 L. T. 70o.

The dilierences which arise in the ap[)]icati()n of this
rule to wills and deeds are due primarily to this tact —
that while in wills all estates and int<'rests in land may
]»ass without technical words of limitation, this is not the
case in deeds, at least when the legal estate in linul is
dealt with. See infra, p. 183; and jier Pollock, ('.B.,
in J foe d. ('lift v. Birhliead {IM'd), 4 Ex. 110, at p. 12;").
This circumstance makes it much easier in the case of a
will than in the case of a iUmmI to inter an intention to pass
a certain estate, and easier more especially to ex|tand what
jir'ima fane is a smaller estate into a larger one. I'eside.^
this circumstance there is, of, the further one that
wills, and more especially technical terms in wills, are con-
strued very liberally, lint as stat<Ml by Lord Halsjujry. ( '.,
in the passjigf* cited |t. 1 7lt from his judgment in SrnW \,
liaxnlinf. where there is no gilt actually made b\- the
in>trinnent. no presum|itioii that a gift was intended to
be made will l»e sutheii-nt to crc-ate a gift. In thai case
a te.-.tator left iVechold |iro|)erty in trust to pay the rents
and interest to hi-< nierc for life, and alN-r her,

182 r.M;T IV. — Interests Tkanskkkrki).

Art. 31, " slic Icnviiin- no cliild or cliildrcii/" he '^-.wo tlic liouses —

Para~7l) ^'^*' ^^ ^' '^'^'^^ ^^^^ ^^ ^^ • ^'''*' >ii^'<^P survived tlic tostator,
and died leavin<i; two cliililren : — Jfcid, that the niece
took merelv a lite estate and the children no interest
under the devise.

lV\ii.\(,i;.\Pii (1) (a).

Examples of -^^ !i" example of an estate ^ranted mider a deed

enlarging hein<r onlaroed Ix'vond the literal terms of the orant.
estates. ..." .

by an intention collected I'roni tlie whole instrument. He

Akero>/d\< Settlement, L'oherts v. Alerof/d [J8!i:5] 3 Ch.

3(ii». may he cited. There, in a marria;j,(' settlement, a life

estate was limitetl to the wife, and after her death to th(^

husband, until he should become bankrupt or alienate the

same, or until his death, whichever should first happen.

Then followed a gift over to the children on the death of

the survivor of the husband and wife : — Jlehl, that this

must be read as a t>ift over on the death of the survivor or

on the bankruptcy of or alienation by the husband. In

deliverinn- judgment, Lini)L?:y, L.J.. says : " The intention

is })lain, but by a piece of bad drafting the draftsman has

failed to give full effect to that plain intention, because in

the gift over he has confined it to one of the events instead

of putting in some general words which would cover the

whole ; but that particular kind of flaw does not recpiire a

suit to rectify the instrument. This mistake can be

corrected by construction, provided the intention is clear

and plain from the document itself." And see In re

Shiickhiar/Ji t; Settlement, Bohertson v. S/nirkhitir/Ii, [11*01 ]

2 Ch. 791, and rf. Blackwell v. JMl (lb30j, 1 Keen, 17G \

Allin v. Craicshay (1851), il Hare, 382. Of course,

when the intention is not clear and plain, the instrument,

until rectified, must have its literal effect (In re Tredicelly

Jefrcvj V. Tredwelh [1891] 2 Ch. (UO).

The principle of the decision in lli' Al:ei<>iid'.< Settlement.
Hoherts v. Akerojid, supra, is very like the lule long

('hap. I. — Gifts Generally. ISo

established with respect to wills, namely, "that a devise or Art. 31.
bequest over, though in terms made upon the marriage of p.^,.,^ (i)(a).
the donee ot the preceding estate, is to be extentled by
implication, so as to take effect on the determination of
that estate by death" {Broicne v. Hammond (1858),

1 John. 210 : '('nder/ull v. Rodm (187G), '2 Oh. D. 4i>4).

The rule that technical words of limitation are necessary
to pass a fee in realty does not apply to the etpiitable estate.
See Infra. y\k li'T. 203. Accordingly we find e(|uital)le
estiites, which jivinu'i faflc are only lite estates, being
extended by necessary im])lication into 'li^e^ simple. Thus,
'\\\ In vt' lrin(fliain;< I rust. t. '/'rini//iai)i \. (z/v^r///////. [1901]

2 (.'h. 487, cojivholds were surrendered in fee simj)le to
trustees to hohl in trust for ^I. for life, and after her death
for her husband for life, and after the death of the survivor
in trust for the children of the marriage as tenants in
common, and, in default of issue, then to such uses as ]\I.
should declare by her will, with remainder to the right
heirs of M. : — //rhl. that the children of M. took not life
estates but the tee simj)le. And see In re Olivrr's Settle-
ment, Evered v, Lei[/h, [1905] 1 Ch. 191 ; and <■/. In re
Harrisons Estate (1870), 5 ( 'h. A])p. 408, where the
settlement was by will and the ligal estate was dealt with.

In these cases it may be said tliat there was no extension
of the estate properly speaking, since the estate to be
taken bv the donee was not expresslv set (Mil : but ii i<
still the rule tliat wheri* an erpiitable freehold is conveyed
to a grantee witjjout words of limitation j>r'nnd facie only
a life estate passes ( //( re /nrin, Jnrin v. I'arkes [1904]
'1 < 'b. 7.')2). Moreover, lliere is no na-nii to thiid< that
il'. for instance, the lni~t in ('ni/ilnii \. I i<iri,.< (IS(i9),
1 < '. r. l.'i'.t, bad aii-eii inidrr a deed, and not nnder
a will, the eon^lruetion ot the limitation ol tlie eijiiiialde
e.st4it<' woidd have been ditferent. In tliat ea»e a te-tator
devised three iVeebold lioiisr'.- to trii'^tees ill tni»t, a> to tlie
{ir>t tsvo r>iil)ieet to a life iiitei(-t to lii^ widow) 'Mo

184 Part TV.- Intkiiksts Transfkuued.

Art. 31. convoy and assign" ihe Hrst "to liis daufrhtor E., her
Para. (1) (a), ^^'if"^ in^^l ussions i'or ever'" ; us to the second, in siinihir
terin.«< to liis dauoliter ( '. ; and a.s to the third, "upon
trust to apply the rents i'or tlie advancement and benefit
ot" my ^randdau^fliter M. until she attains the :\'^o of
21 years ; but in case my said granddau^htt'r should die
under an;e, then I devise the said dwelling-house to my
daughters E. and ('., their heirs and assigns, as tenants in
connnon " : — Held, that M. took a tee sim])lc in tiic
dwelling-house subject to defeasance in the eveni ol' luu-
dying under t\vent3'-one.

Here the iinj)lied gift of the fee simple was hel|>ed by
the gift over, which could not take effect unless M. died
before attaining twenty-one. AVlicre there is no gift over
it is more difficult to imply an absolute gift in such a case.
See In re liedleifs 7rii,^fs (1877), 25 W. R. 521>.

Paragraph ( 1) (b) i.

Principle. " I think the true rule is laid down in the old case of

Doe v. Webb (1808), 1 Taunt. 234, that in order to
ascertain whether you should imply cross remainders, you
have to ascertain whetiicr the testator intended tliat tiie
whole estate should go over together. If you once get to
that point, that he intends the whole estate to go over
together, you are not to let a fraction of it descend to the
heir-at-law in the meantime. You are to assiune that
what is to go over together being the entire estate, is t(;
remain subject to the prior limitations until the period
when it is to go over arrives" (;>(->■ Jessel,,, in
Maden v. Ta>/lor (1876), 4.5 L. J. Ch. .56i>, at p. 57;|).

Illustration In Maden V. Taijlor, kuj^i'ci, a testator devised a fee

simple estate in trust for M., B., S., and d. for their
respective lives as tenants in common, and on the death of
all or any of them, then as to the part of her or them so
dying, in trust for all aiid every the child and children of
them respectively and the heirs of their bodies ; and

in a will.

Chap. I. — Gifts Generally. 185

it' any of them sliouKl d'w \vithout It'avino- issue liviii;:,' at Art. 31.
her death, then in trust tor the survivors and survivor y-xm. (1)
of them and tlie heirs of her anil their hodies, ami if all C^) '•
except one sliould die without k\ivin^- hiwful issue, then
in trust for such only or surviving niece and the heirs of
lier l)ody. and in case of a total failure of issue of them,
then in trust for the testator's luMrs : — Held, that Ijy
imjtlieation there were cross remainders hetween the
children of the nieces. And see //< >v Parker, Sfej>/ie)u^oii v.
J'arlrr. [UK)]] 1 Ch. 408.

This rule lias practicallv no ajipliration to deeds when Seldom
1 7 1 11- -111 1 !• • 1 • apijlicable

tiiese deeds are deahn;:.- with the le;^al tee simple since no to deeds.

intention, however evident, unless ex{)ressed in technical

words, can carry the fee. But, as hefore pointed out,

technical words are not neces.^ary to convey the equitable

fee. and .<o are not necessary to create cross remainders in

it. And there seems no reason why the j)rincii)le a]){)li(Ml

in wills should not be implied in deeds dealing with the

equitable estate or to life estates or personalty where

technical words are not necessary. As a fact the same

rule has been held to tipply to executory trusts. As to

life estiites, see Ashleij v. Asldeij (I83)i), (> Sim. W')^. In

J>oe (1. riift V. Birlhead (18411), 4 Ex. Ill), Pollock. ( ".H.,

where the difiicultv as to technical words was "ot ovei%

aj)plied the >ec(jnd rule as io cross remainders (1)) ii. to

limitations (jf leo;al realty in a deed precisely as it" they had

l)eeii in a will. It seems, tlieridore, wron^- to lav it down

liroadiv, as is done in 1 Wm^. Sauinl. IStili. ili;it these

rule- a~ to implied ero~~ remaiiiilers lia\ c iio applient idii

to deeds.

pAltACU.M'll (1 ) ( 1.) ii.

" In eoii-tnnn;i will-, not wiih'^tiiiidiii;^ thai the dnetriiie I'lin.iple.
ha> been di-;ippro\ ed of. it iini-t now he iwken a^ an
<'>tabli>licd ride that idauses di>j)o>in;,f <jf the -haie- ol'
jtersons dyin;i before a ;;iven period do not, without a
<dear and distinct indication <d intention, extend to -hare*

18() Pai:t IV. — Intkkksts Tr.ANsFKuin'.n.

Art. 31. uc'cruiiin umlcr such clauses {Bdnhm v. Harden (18(5")),

P;^i^(l) ^** ^'■- * ''• ''• '-'= =""^ - ''!»l''ll:»» <»» Wills. 4til ('(].,

(li) ii- pp. 710, 711), The word ' shiire ' or ' })()rti()ii ' will not,
]»'oj>r/'(> rit/oir, cany an accrued share. There must he an
enlarejno- context <;ivinii; a clear indication of an intention
that the accrued share should pass" (pei' Andukws. J., in
Siftt07i V. Sutton, [1891] 30 I. R. 251, at p. 2G() : and see
infra, p. 187.

"Where distinct le<iacies are given with survivorship.
the general rule is that the clause of survivorship, unless
extended by particular words, attaches only to the original
shares and does not affect the accruing shares, whicdi there-
fore become vested in the indivitluals who are the survivors
for the time being. . . . The principal exception is,
where the description is, not of separate legacies, but of
one aggregate fund, which the testator meant should
remain an aggregate fund, and should not be broken into
fragments, if some of the persons, to whom interests in it
were given, happeniMl to die" (/>er Flumek, M.K'., in
Barker v. Lea (182;i), T. k R. 413, at p. 415).

Illustrations In In re Allan, Dow v. Cassaigne, [1903] 1 C'h. 276
in a Mill. (cited snjira, p. 159), a testator gave his residuary estate
in trust as to one-fourth part for one daughter for life,
with remainder for her children living at her death, and
as to the other three-fourths on similar trusts for his three
other daughters and their children ; and he declared that
if anv one or more of his daughters should die without
leaving issue, their .share or shares "shall fall into and
become part of my residuary estate and be ludd and dis-
posed of on the same trusts as are hereinbefore declared":
— Held, following the dictum of Plumer, M.R., in
Barker v. Lea, .siij>ra, that the testator's evident intention
was to treat the whole residuary estate as an aggregate
fund, and that the accruer clause carried l)oth original and
accrued shares.

Chap, I. — Gifts Generally. 187

In Sutton V. Sutton. [I^IH] W 1. U. 251 (on appoal. Art 31.
[18U2] if'icL, p. 201), a married woman hy deed ap- p.^^..^ j,
pointed certain lands held in trust under her marriage CO ii-
settlement, to Justin one portion, to John another ])ortion, ^^^^ arising
and to Jlathew another portion, ^he then aitpomted
the rest of her realty to Justin, John and ]\Iath(>\v
equally as tenants in common. All these appointment>
were made subject to the proviso that should any
one or more of the said Justin, John or ^Mathew die
without leavini; any issue ot" his or their body or bodies
living at his or their decease, then the parts ot" the land
thereby appointed to such son or sons so dying shoultl go
to the survivors or survivor ot" the said Justin, John and
Mathew, and in case all of them should die without leaving
issue living at the death of such survivor, then the part or
shares of the said lands and also the part or portions of the
said lands which should come to the survivors or survivor
of them by reason of the decease of any of them, the said
Justin, John and Matliew dying without leaving issue
living at his decease, should go and belong to her
daughters Clare and < 'atherine : — I/eld. that thrrc were
no cross remainders in the accrued shares.

This decision was not arrived at unanimously either in thf
( 'ourt of Excheijuer or th(i ( "ourt of Apjx'al. x\n"I)1{K\\ s. .1..
in delivering the judgment of the majority in the former
(oiM-t. after the words cited above, went on to say (at
p. 2*><l) : "The present is not like the ease ol" a money lund
with an olivious intention to keep it as an aggregate liind.
It i< a case of hinds, expre-xly divided by the a|i|iointor
into r-eparate portions to be x-parately jield and enjoyed by
her sons, and not ke|)t together ;is an aggregate e>i:iie ;
and further it ajtpears to me to lie a ease in which the
uppoint(jr has interpreted Iki- own language, and shown
hv a chiuse subsecpient to that on which the (juer-titin
arises that the clause in (|Ue>tion wa> not intemled to carry
accrued -hares, which, when she wished to pa - , -he did -o

188 Part IV.— Interests Transferred.

Art. 31. hy a(lilin<i; express words to the verv words under wliicli, in

„ ,,. the clause in (luestion, tlie defendant contends the accrued
rara. (1) ^ _

(b) ii. shares passed without any sucli added words." ('f. Doc d.
Clift V. Birkhe'ad (1841))^, 4 Ex. 110.

rAi:A(;KAi>ii (2).

(iifts by As to the exce]ition stated in para<i;ra]ih (2), it is l»ased

necessary , ... • ; i . i i - i ■ # ,

implication *^'^ ^''*' ^'oiisidcration pointed out hy Kkk I'.WR'il. .1.. m /./-

ni wills. iS/'rhu/jicld, ('/tUDihcrl/ii V. Spriii(//i('l(/ .s'*/y//-a, p. 1<S(). A

gift is made after the death of A. to B., who would take the
property so given if it had not been disjjosed of l)y the will.
No express gift is made of the })roperty during A.*s life, and
therefore prima facie it is undisposed of. But if treated as
undispo.sed of during A.'s life, B. takes the property, not
on A.'s death as the testator intended, hut immediately on
the testator's death. This renders the gift on A.'s death
meaningless, and as presumably the testator meant some-
thing by it, the court holds that he must have meant that
the property should go to A. during A.'s life, which is the
only possible reading of the will which could make effectual
the intention of the testator that B. should have the property
only on A."s death.

Now, in order that this reasoning may a})})ly, it is clear
that B. must be the person, or if there be more than one
person who would take, all the persons and nobody but the
person or persons who would take, if the property given
were undisposed of by the will. Accordingl}-, if B. be
one only of several co-heirs, where the gift is of realty
{Barnet v. Barnet (1861), 29 Beav. 239 ; Jn re WiUatls.
Willatts V. Avflei/, [1905] 1 Ch. 378 ; reversed on another
l)oint, [1905] 2 Ch. 135). or not the sole next of kin
according to the statute where the gift is of personalty
(//i re Spriny field, CItamherlin v. Springfield, [1894]
3 Ch. 603), or (although the heir or the sole next of kin)
he has somebody else taking with him (Jialjdi v. Carrie/.-
(1879), 11 Ch. b. 873), the rule would not apply. The
rule will not be extended by the court.

Chap. I. — Gifts Generally. 189

The exception in the secoml ])art of the rule is in Art. 31.

principle the same as the doctrine which apphes to iiifts

. . . Para. (2).

both hv will and deed, nanielv. that if land l)e "iven to a ...r. '

'^ (xitt over

donee "and his heirs "' with a limitation over in tlefault of in default
"heirs" to some one who might he an heir of the donee's, sometimes
thouf^h he could not be the heir of the donee's Ijody. the passes estate
donee shall take not a fee simple but a fee tail ( ]\'el>l> v.
Ileavina (1G17), Cro. Jae. 415 ; Doe d. Littledale v.
Smeddle (1818), 2 B. & Aid. 12t; : /// re Smith\<s Estate
(1891), 27 L. R. Ir. 121).


Art. 32. — Legacies to Executors.

1. When a legacy not of a residuary nature is given
to an executor, the presumption is that it is given to
him in his character as executor, and conditionally
upon his accepting the office. This presumption maj'
be rebutted by intrinsic or extrinsic evidence showing
a contrary intention on the part of the testator.

•1. Where the residuary estate is left to executors
upon trusts declared by the will then, in so far as such
trusts fail or do not exhaust the estate, what is left
undisposed of is held by the executors as trustees for
the heir or next of kin, or, in default of heirs or next
of kin, for the Crown.

3. Where residuary personalty is not Itfi to the
executors as trustees, but is undisposed of by the w ill.
the executors, in the absence lA any intention expressed
or implied in the will to the contrary, hold it in trust
for the next of kin of the testator, but if there be no
next of kin, they take it beneficially. In the latter

190 V.wiv IV. — Ini'kuksts Tijansi-kuukd.

Art. 32. case, it' there is any intention expressed or iin[)lie(l that
the executors should not take l)eneticially, they hold tlie
residuary personalty in trust for the Crown.

l'AKA(iKAl'H (1 ).

"1 take the rule to he eon-eetlv stated in William^ oii
. Executors (7th ed., p. 12S1 ) : 'The i)resuin]tti(jn is, that a
legacy to a jierson apiiointcd <'xecutor is given to him in
that character, and it is on him to show something in tin-
natnre of the legacy, or other eireumstanees arising on liic
will, to rej)el the presumption. ' The autluti- says ' arising
on the will.' hut 1 think to rehut this, as well as any other,
presumption, ]iarol evidence may he admitted " ( j>er
Cotton, L.-l.. in /u n- A/i/ilrlnn, liarlicr V. Trhh/i (1<S<S5),
•2i> Ch. 1). .sii;5. at \K '^i''>>

The fact that the legacy precedes the ap]>ointment as
executor, or that several executors are given legacies vary-
ing in amount, is not sufficient to rebut the jtresumiition
(//t re A/>j>(('fon, Jiarher v. Ti'hliif, sHjira).

It mav. liowever, he rehutted if another motive i>
expressed as influencing the testator in making the gift
(Bulb V. Yelverton (1871), 13 Eq. 131), and it does not
arise if the gift is one of the residue or of a share of the
residue {Christian v. Dererenx (18-41), 12 8im. 2(14).

Paragraph (2j.

At all times when personalty was bequeathed to executors
as trustees, if the trusts declared failed or if they did not
exhaust the personalty l)e(jueathed, the executoi's were
trustees of the whole or tlie residue for the next of kin :
or, if there were no next of kin, for the Crown as Uona
vacantia {EUnwh v. Mapp (1851), 3 H. L. Cas. 492 ;
and see hi re Bond, Panes v. Att.-Gen., [1901] 1 Ch. 15).
But in the case of realtv, in such case the executors were

Chap. I. — Gifts Generally. 191

trustees tor the testator's heir at law, but it' there were no Art. 32.
heirs, then they held for their own benefit as terre tenants p^^^.^ .o)
(Co.v v. Farke)' (1^5G), 22 Beav. 168). Now under the
Intestates Estates Act, 1884 (47 & 48 Vict. c. 71), in the
case of realty, the equitable realty undisposed of escheats
to the Crown (In re Wood, Att.-Gen. v. Anderson, [1896]
2 Ch. 596).

Paragraph (3).

The rule formerly was that the trustees were entitled to
hold personalty coming to them <iua executors and undis-
posed of by the will for their own benefit against both the
Crown and the next of kin. By the Executors Act, 1830

Online LibraryArthur UnderhillThe principles of the interpretation of wills and settlements → online text (page 21 of 42)