The principles of the interpretation of wills and settlements online

(11 Geo. 4 it 1 AVill. 4, c. 40), where there is any next of
kin the executors are now to hold undisposed of personalty
in trust for such next of kin, but in the absence of next of
kin their title is still y-ood aiiainst the Crown. But this
rule does not a[)j)ly where there is anything to the contrary
in the will ( WiUiams v. Arkle (1875), L. R. 7 H. L. 606).
The most usual example of a provision to the contrary is
where by a previous clause of the will a legacy is expressly
given to the executor {Fenton v. Nevin, [1893] 31 1. Iv.
478). It has been held that the Executors Act, 1830,
applies to express gifts of residue to executors {Lore v.
Gaze (1845), 8 Beav. 472). but this seems incoii-istent
with Williams v. Arkle, sujira. And in any case the
executor is not an express trustee, and so claims by the
next of kin will be barreil utter twelve years ( /\<' Lac'i,
lioi/dl (ji-iwrid I keatrical I'liml As.^ocidfio/i v. A'l/dd. [1899]
2 ('\i. 149;.



AltT. 33. — Gifts of Income of Residuary J'rrsondl/i/.

in the absence of anything io the contrary in ihi-
will, the donee of a life or other limited interest in the
income of the residue of a testator's personal estate is



192 I'akt IV. — Intkuksts TuAN'si-i;iutKi».

Art. 33. in so far as such estate consists of wasting or rever-
sionary interests or unauthorised securities, entitled,
not to the actual income of such interests, but to the
income which such interests would produce if they were
at the testator's death sold and the proceeds invested
in trust securities.

Autliorities. " So t'lir as 1 am aware, the rule in lloicc \ . Karl of

Dartmouth has nvvov been ajiiilicil except to a disposition
by will of residuary personal estate given as one fund to
be onjoyeil by several persons in succession. The court
assumes an intention that the legatees should enjoy the
same thing in succession, and, as the only mode of giving
effect to such intention, it directs the sale of such parts of
the residuary estate as are of a wasting or reversionary or
unauthorised character. See PickerliKi v. rickering
(18:VJ), 4 My. & Cr. 289, at p. 298, and Mardonald v.
Irvine (1878), 8 ('h. D. 101. at p. 112. But the rule
does not apply to any bequest which is specific as distin-
guished from residuary" ( /)6'7' Cozens-Haudy, J., in /// re
Van Stranbenzee, Boustead v. Cooper, [1901] 2 Ch. 779,
at p. 782).

The rule stated in the article is called the rule in Howe v.
Dartmont/i from the leading case in which it was first
fully enunciated. In Howe v. Earl of J fartmoidh (1802),
7 Ves. 137, the Earl of Strafford left all his personal and
real estate to his wife for life and then to his sister for life
with absolute gifts over. The personal estate consisted
among other things of Bank stock and long and short
annuities. The executors did not sell this stock or these
annuities : — Held, by Lord Eldon, C, that the Bank
stock not being — at the time of the decision — a proper
trust security and the annuities being wasting securities, it
was the dutv of the executors to sell them and invest the
proceeds in Government securities, and, as between the life
tenants and the remainderman, thev must be treated as



Chat. 1. — (lu rs Generally. 1*)3

sold from the timo the executors should h;ive sold them. Art. 33.
This rule applies even when the sale is properly post-
poned under a power to do so (7/* /v Cluu/tor, Cluijjtor v.

Horn, [1905] 1 rh. 2;5:n.

The interest now allowed in sueh eases is three percent.
{In re Woods, Gahell'ml v. Woods, [1904] 2 Ch. 4). For
mode ot" calculating the value of ^vastino• and reversionary
interests, see Underhill on Trusts, [)p. 187 et seq. ; Strahan's
Equity, pp. 104 it .•<eij.



Akt. 34. — Substituted and Ciintnlative Legacies.

(1) Where two legacies of the same amount are
given by the same instrument to the same j)erson the
second legacy will be presumed to be merely a repetition
of the first.

(2) Where two legacies of the same amount are
given by different instruments to the same person,
then prima facie the second legacy is in addition to the
first, unless the two legacies are not merely of the
same amount, but expressed to be given for the same
motive, in which case the second legacy will be
presumed to be a repetition only of the first.

(3) A repeated or additional legacy is i^rimn facie
given subject to the same conditions as the first legacy.

rAKA(il<AI'H ( 1 ).

Thus in tiiirlli V. Mri/rirl (ITTHj, 1 V>l\>. < '. < ". 'MK :i lllustiatimis.
will eorjtaincd tlw' two iuUowing gilts : " I give to
£1,000 old South-sea Jinniiitii - . t(» lie t ranslcrn'd into her
own name." and again toward- tin'i-nd ol tin' will '"1 give
to i!l, Otto old Soutli - <a annuities as al'oic-ai<r' :

//lid. tjiat iIh' legatee took onl\ one |e;^ae\ . In the >aine
will ilie roidiie was lelt e(pi.dl\ among the lotalor's six



194 Pakt IV. — Interests Transfi:uim:i).

Art. 34. <j;r;iii(k'liil(lr<'ii iioni/'/nt/ini. In iiainin;;' tliciii, iKtw'vcr,

I'u-i (I) *"^'' ^'^''1'' (Ann) was inciitioiicd twice, while another

(Elizabeth) was omitted: Ihld, thai Ann took oiilv one

share and Eli/.ahetli also took one. And see Greenwood w

Greenwood ( ITTli). 1 P)ro. ('.('.."?() n.

If tlio loearies are une(|ual (Adnaoi v. Cole (\>>i'.]),
(> IVav. .'{rj.'i). or one is specific or j)ecnniarv and the other
residnar\' { Kirkpat rtrk v. Ilcdford (IST'S), 4 App. ('as.
yti), or it' there aj)pears to be any such intention ( Ihirkin-
sJiaw V. JJod</(' (l«7-4), 22 W. li. 4«4), the le<^atee takes
both gifts.

In the last case a testator directed his trustees to convert
his {)ersonal estate and stand possessed of the proceeds on
certiiin trusts, among others " on trust to pay £2, 000 to
each of his sons who should attain twenty-one '" and ''on
further trust to set aj)art and pay over the sum of £2,000
to eacli of his sons on their respectively attaining twenty-
one." He also directed his trustees to divide the i-esidue
"after full payment and setting aside of the sums directed
to be ])aid ajid set aside " : — Held, that the rule as to
ddulile gifts in the same instrument did not I'jiply.

Paragraph (2).

Autliority. The general rule is that gifts of the same sum to

the same person for the same cause, " are to be con-
strued as substitutionary and not cumuhitive.
It is verv dithcult, to my mind, to apply that rule. I do
not know exactly what is meant by the expression ' the
same cause.' as used in the rule. When a man leaves a
legacy to a child, it is because he is a child : if he leaves a
legacy to a friend, it is because he is a friend that he gi^'es
it. Perhaps the same might l)e said of every case of
testamentary bounty, excejit the giving a certain sum to
an executor for his trouble " ( per James, L.J.. in Wilson v.
O'Leary (1872), 7 Ch. 448, at p. 454).

Illustrations. In that case a testator by one codicil gave certain
pecuniary legacies to certain persons whom he described



Chap. I. — Gifts Genekallv. 195

as friends and a year's \vao;es to each servant. Bv a Art. 34.
second codicil he ijave legacies to all the persons Pa^^2)
mentioned in the first save one, and also to a |)erson not
mentioned in the first, and also a year's wages to each of
his servants. All the legacies were of the same amount
excej.t in three cases where the amount given was
smaller : — Held, that the legacies wore not substituted,
but cumulative. And see Mayne v. Woodward, [1893]
31 I. 1{. 1.51 : StvoiHj v. liKiram (183:5), tJ Sim. 197.

The rule that legacies given by different instruments are
cumulative is more often excluded l)y implied intention
than l)y the proviso stated in the article. Often it is clear
that a codicil is intended to be in substitution for part of
the will {Tuckey v. Henderson (18G2), 33 Beav. 171), or
is explanatory of the will {Fraser v. Byng (1829), 1 R. &
M. 90), or is a mere repetition of part of the will or of a
preceding codicil {W/iyte v. Whyte (1873), 17 Eq. 50), in
all of which cases the second legacy is construed to be in
substitution of the earlier one.

Paragraph (3).

'" When the thing betpieathed by the codicil is given as Auihoiity.
a mere substitution for that which is beciueathed 1)V the
will, it is to b(* taken with all its accidents. Therefore,
the legacy duty on the annuity given by the codicil, must
be paid out of the testator's residuary estate " ( iwv Shad-
well, V.-C, in Earl nf Shaft eshm-y v. /htlc of' Marl-
hannuih (1835), 7 Sim. 237, at p. 238).

Fn that case a testator liy lii> will had given an aiimiilx lUustiiUions.
to his grandscjii :iiid dirt'ctcd bis executors to |i,i\ ihc
h'gacy duty on all the legacies and annuities gi\('n bv his
will. l>y a codicil be gave an aniuiitv to lii> grandxui in
lieu of that given b\- lii- will : 11,1,1, ibat it was ^^iven
free from legacy duty. And ->•>• I,, ,;■ /inddinatan, lUul-
dinafoi, V. Clairat (1M^4). 25 < b. | ). d.s.') ; //, /ienyon,
liei,y„„ V. (irieve (1881), 51 L. T. Ih;; I!, Colyer,

I. '2



VJ6 Paut IV. — 1ntkkk«ts Tijanskkkukd.

Art. 34. MUllkin v. SmU',,,,! (IS.SC), f,.', L. T. WU \ and (;/'.
I'ara. (3) ^tvoii<i v. Imiraui ( 1 ^!."5l{ ), (I Sim. I'.lj. wlicrc the conditions

wiTc made a|i]di('al)l«' to the lc;j,aei('s " licrcinaftcr

ilivon."'



Art. 35. — Priority of Legacies.

General legacies are prima facie payable 2)ari imssu
out of the testator's personalty, and nothing will give
any of them priority over the others except an express
direction in the will that they shall be paid in priority
to the others, or an implied postponement of the others
by a direction which in effect makes them payable out
of the residuary estate.

"It is a woll-establislicd rule that a mere (lii\'ftioii to
})ay a legacy inmiodiatcly, or witliiii one moiitli. or ^vit]lin
three months after a testator's decease, is no evidence of
an intention on the ])art of the testator to <»ive priority to
that jiarticular le^^acy in case of a deficiency in the estate,
because it is presumed that the testator intended all the
legacies to be paid in lull when he gave them " (per
ChiTTY, J., in In re Schiceders Estate, Oj'jx'n/irlin v.
ScJmeder, [1891] 3 ("h. 44. at p. 45).

In the same way such expressions as '' in the first
place,'" ■• in the second place,"' etc., do not affect the
priority of the legacies {In re Hardy, Welh v. JJoncick
(1881), 1 7 ( 'h. D. 798).

But where there is a gift of certain legacies which
are charged upon the whole personalty, and afterwards
legacies are given out of the remainder ol' the iiersonaitv,
the first given legacies have priority. See J/i re IJardj,
Wells V. I3orwick, supra ; In re Smith, Smith v. Smith,
[1899] 1 (,'h. 365.



( 1^' )



CHAPTER II.

GIFTS WITHOUT WORDS OF LIMITATION.

ART. PAGE

36. Gifts of corpus without words uf limitation - - 197

37. Bequests of annuities icitlwut toords of limitation - - 204



Art. 36. — Gifts of Corpus icitJwut Words of
Limitation.

(1) A grant of the legal estate in realty without apt
words of limitation passes only an estate for the life
of the grantee except the grantee is —

(a) The Sovereign ;

(b) A corporation aggregate more than one of whose

members is competent to take ;

(c) The "heirs" or the "heirs of the body" of any

person taking as purchasers.

Or except the grant is —

(d) By way of release as between coparceners or joint

tenants in fee or reversioner in fee and tenant,
or is of an incorporeal liorcditanicnt to the
tenant in fet; of the land ;

(e) ]>y way ui partiticjn ijetween coparceners;

in all of which cases the fee (jr fee tail, as the case may
be, passes without words of limitation.

{'!) A grant of tiie equitablr eslale in realty arising
under an express trust witbout apt words of limitation



Iii8 PAiri' IV. — Intkkksis Tkansfkukkd.

Art. 36. passes primil facie an estate for life merely. ]kit if it
appears from the whole deed that it was the grantor's
intention to pass a fee tail, or the fee simple, that
estate will pass.

(3) A devise of realty without apt or any words of
limitation, passes all the estate the testator had
power to devise in such realty, unless a contrary
intention appears by the will.

A\ithorities. " For it' a man would j)nr(']ias(' lands oi- lici-cditanicnts

in tec simple it behoveth liini to have these uords in his
])urchase : To have and to hold to liini and to his heirs :
for these words (his heirs) make the estate of inheritance.
For it' a man purchase lands l)y these words: To have and
to hold to him for ever ; or by these words : To have and
to hold to him and his assigns for ever : in these two
cases he hath but an estate for term of life, for that
there lack these words fhis heirs), wliieli words only
make an inheritance in all feoffments and lirants "'
(Lift., s. 1.)

" AVliere an intention to confer moi'e tlian a life estate
is not expressed or sufficiently shown u})on the face of the
instrument, then, in a deed, a simple trust of real estate
for A. without any mention of the heirs, does not give more
than a life estate. No case, however, has been cited
where such a limitation of a trust has not been held to
confer the et|uitable fee where the intention to do so was
expressed or sufficiently shown u])on the face of the
instrument" (per JoYCK, >)., in J n re 7'riiir/ham's 7'ruds,
Trhnjham v. GreenhUL [lt>04] 2 Ch. 4.S7, at p. 4114).

"(1) In a deed it shall he sufficient in the limitation of
an estate in fee sinn)le, to use the woids in I'ce simple,
without the word heirs: ;md in tlie lindtation of an estate
in tail, to use the words in tail without the words heirs of
the bodv: and in the limitation of an otatc in tail male or



Chap. II. — Gifts without Words of Limitation. 199

in tail female, to use the words in tail male, or in tail fi'male, Art. 36.
as the case requires, without the words heirs male ot" the
body, or heirs female of the body.

" (2) This section applies only to deeds executed after
the connnencement of this Act " (Conveyancing- and Law
of Property Act, 1881 (44 .t 4.5 Vict. c. 41), s. 51).

" Where any real estate shall be devised to any person
without any words of limitation, such devise shall be con-
strued to j)ass the fee simple, or other the whole estate or
interest whidi the testator had power to dispose of by
will in such real estate, unless a contrarv intention shall
appear by the will*' (Wills Act, 1^'M (^i Vict. c. 20),
.s. 28).

As to the old law before the Wills Act, see ///// v.
Broin,, [1894] A. C. 125.

With regard to the operation of the general rule stated Kxplauation
in the article, this point is to be noticed : The grant or
devise of the rents and profits of land is the same as the
grant or devise of the land itself; and accordingly, the
grant of these, to carry more than a life interest, must
have apt words ol" limitation to pass a greater estate,
while a devise of them, if without words of limitation, will
carry the fee. See in/nt, p. 200. As to a devise of
the orcupatioii of realty without words of liniiratioii, see
Coininl V. Larhinnn { \><X>>)^ (lO L. T. 1.

l'AHA(iJ{Al'H ( 1 ).

As to the exceptions set out in the tirst part of the Kxceptions.
article :

(a) A grant to th«- sovereign of Ireelutld lands will carry Suvercign.
the fee, though no words of limitation are used,
at .iMV rate it the deed of grant be enrolled. "If
a man give land> to the king bv deede inrolled,
a fee simph; doth passe without these words
(successor.** or heires/' (("o. Lilt. It b).



200 Part IV. — Interests Transferred.

Art. 36. (b) The same' is tlic case with a c-oi'iioration aggretrate,

Para~Tl) where more than one inenihcr can take: "It" a

Corporation t'eotiinont or orant I)e made Ijy deed to a mayor

aggregate. jiu,} eommoiialtie or any other corporation aoor^-

gate of manie ])ersons ca})al)le, they have a tee

simple without tlie word (successors) " (C'o.

Litt. 9 b). Where only one member of the corj)0-

ration onlv can take, it seems the words '' and

successors "' must be added (1 Hull. Abr. K\2).

It is to be rememlx'red in this connection, that
the apt words of limitation of a fee to a corpora-
tion i>ol(\ are to the re])resentative for the time
being of the corporation, and '"his successors,"
and that s. 51 of the Conveyancing and Law of
Property Act, 1881, permits tlie suljstitution of
•' in fee simple " for *" and his heirs " merely.
The consequence seems to l)e, th:it it is still
necessary to convey to a corporation sole and
" his successors." If the limitation be to the
corporation sole " in fee simple," the effect would
seem to be the same as a limitation l)efore the
Act to the corporation and his heirs would have
been, namely, to vest a life estate in x\w j)erson
representing the corporation for the time Iteing.
See Co. Litt. 94 1); sed (pin re: see Key and El])hin-
stone's Conveyancing, .^th ed.. at p. 39)^. where it
is said that the effect is to vest the fee in him.

" Heirs" and (c) A grant to the " heirs " or " the heirs of the body "

" heirs of the , , ; i

body." !is purchasers conveys to the person or persons

answering that description at the death of the

person whose heirs or heirs of the l)ody he or

they is or are, a fee simple or a fee tail, though

no words of inheritance are added to the descrij)-

tion of "heirs" or "heirs of the l)ody.'" The

addition, however, of words of inlieritance to

these descriptions is often of great imj»ortance

in determining wh<'ther or not the persons

answering the description take as purchasers.



Chap. II. — Gifts without Words of Limitation. 201

See the Inheritance Act, 1833 (3 & 4 Will. 4, c. 106), Art. 36.
s. 3, as to the character in which the heir takes in the case p^^j.^ (i),
of devises to testator's heirs, and in what character the
settlor takes when the ultimate remainder nnder the
settlement is reserved to him and his heirs or '"to his
ricrht heirs" (Owen v. Gihhons, [1902] 1 (1i. (')36).

It should perhaps be noted that when the grant is to
the heirs or heirs of the body of a livino; person other than
the grantor, the estate granted is a contingent remainder
or executory devise or use ; but when to the heirs of the
grantor himself, the estate is a vested estate in the grantor
himself, the heirs taking nothing under the grant. " If a
man make a gift in taile, or a lease for life, the remainder
to his own right heires. the remainder is void, and he iiatli
the reversion in liini : for the ancestor during his life
beareth in his body (in judgment of law) all his heires,
and therefore it is truly said that lucres est j.>ars
antecessoris " (Co. Litt. 22 b).

And it should further be noted that the words "heirs" "Heir 'not
1 ■ /•111"- 1 ill- !• 1 M withiu

or " heirs or tiie body m order to pass tlie tee or lee tail exception.

must be in the ])lural. A grant to the "heir" of A. will

carry merely a life estate. See per LiNDLEY, L.d., in

Evans V. Evans, [1892] 2 Ch. 173, at p. 184. (Why the

Lord Justice refers there to the fact that the deed before

the court was executed in 1854 as a reason for the doctrine

he lays down is hard to say. as the doctrine seems ecjually

a[)plical>le if the deed had Ijeeii executed the day before

his decision.) Wlwre. however, the words are *' lieir or

heirs" a i'ee simple \v(juld jiass (/>(<//// v. '/'(H/lin- (1(!14).

2 Roll. 2r,:\).

Section .">1 of th«' ( 'onveyaneing and Law ot rroperty
Act, 18^<1 (l-J it 4.'» \'iet. e. 41), merely jierniii- ilie -nb-
htitution of '"in lee >ini|ile'" lui- •' heii>."' and "in tail."'
etc., for "heirs of the bodv. cic. [n no other res|»eet
does it relax the severitv ol the cuininon law rnle. rhii<.
in //- /v /j/ull ,n„l Mll.-hrll ,li„l liiillr,'.-^ <\,„lr,trl, \ JiMIl )
1 < li. '.'I.'». in a reeuii\cvanee of tin- legal e>tafe in ieall\



202 Paut TV.- Intkiiksts Transferred.

Art. 36. hy iii(HM;^;i;^('('S to tlic iii()rl;;;i;^()i\ the l;mil \v;is coincNcd
Piiia (1) ^^' '''*^' niort^a^or "in tec"" (^vitIl()^lI "' >iiii|ilc "" ) : IlihL
tliat a lite estate only passed to tlie luort^^a^^oi'.

Releases. The rule as to exce|itioiis (d) and (e) is thus stated :

\\ (ird- ot" inheritance ai'e not necessary to |)a>s thi' fee in
•■certain i-elea<es and tliat thrcM' manner ol' wines:

1. \\ lien an estate of inlu'ritance passeth and continiieth ;
as il' there lie three co-pureenei'S or jovntenants, and one
of them release to the other two, or to one of them
oenerallv without this word (heirs) by TjittletonV own
0})inion they have a lee sim])le as ap[)earetii hcic;ifter.

2. By release when an estate of inheritance passeth and
continueth not, but is extinfi;uishetl : as where the lord
releaseth to the tenant or the grantee of a i-ent, etc.,
release to the tenant of the land ;^"enerall\' all lii> ri;j,ht,
etc., her(d)v the seieiiiory rent, etc., are extin;j;nislied for
ever, without these words (heirs). d. When a bare
right is released, as when the disseisee r(dease to the
disseisor all his right, he need not (saith onr author in
another ])lace) speak of his heires " ((Jo. Jjitt. 'J b ; and
see //'/(/. for other instances where the fee might pass
without words of inheritance, which are now either
obsolete, such as fines i^iir coiin.satKr de droit, etc., or which
do not come within the scope of this work, as grants of
peerages).

Pakaguaph (2).

The wh()l(^ subject of the limitation of equitable estates
in realty arising under express trusts was considered
recently Viith great care in In re Tringhani'ti Trusts^
Trlngliam v. Greenliill, [1904] 2 Ch. 487 and In re Irwin,
Irwin V. Farkes, [1904] 2 Ch. 752. The result of these
two cases is set down in paragraph (2). In the first copy-
holds were surrendered to trustees and their heirs in trust
for A. for life, then for A.'s husband for life, then o\\ death
of the survivor for the children of the marriaiie as tenants
in common and in del'ault of children for such uses as A.



Chap. II. — Gifts without Words of Limitation. 208

might declare, with reinaimler to the right heirs of A. : — Art. 36.
Held, that the cliildren of the nuirriage were tenants in ParaTi-M
common in fee simple.

In In re Irwin, Iricni v. J\irle.<, .oiio'a, on the other hand,
the equitable owner in fee siinjilc hv a |)Ost-nuj)ti:d settle-
ment wliicli recited tliat the settlor was absolutely entitled
to freehold hereditaments'" which said freidiold ])ro])ertv ''
he was desirous of settling for the IxMicHt of his wife and
children. It was then witnessed that in j)iu-suance of such
desire, he assigned " the said freehold hereditaments" to the
trustees (without the word "heirs") upon trust for sale and
investment and to pay the income to his wife for life, then
to himself for life, and then for their children. The deed
contained a power to appoint new trustees : — Held, that
there passed to the trustees only an estate for the life of
the trustees namtMl in the deed and the survivors of them.

PAKACiKAPH (3).

The rule as to devises a})plies to all cor|)oreal heredita-
ments subsisting l)efore the will but not to those created
by the will itself. Thus, if a testator owns, amongst
other things, a rentcharge in fee sim})le issuing out of
Whiteacre, a devise of this rentcharge without words of
inheritance, will pass the fee in the rent ; but if he owns
Whiteacre in fee >iinpli' and bv bis will charges White-
acre with a c(;rtain rent or annuity in favour of a devisee,
and uses no W(jnl> of limitation, tlif devisee will take
meri-iv a n-nt or anniiitx' i'or lile ( .\'i(/iol.< v. Ihiickex
(\Kt.\]. ]<i ibire. '.'A-1 : In f/ic Kddte of Forsli-r ( 1 SStt ),
•1\\ L. K. Ir. 2t;:t). Tile Wills Act has not altered tlic law
with regard to annuities and such like ineorpoical heredita-
ments created bv the will its<'ll'. whieh now, as before the
Aet. are >uliieet to the rule >tatei| in file next article.

A- an e\aiii|i|e df a coiitiaiv inleiilion witliin -. 'IX of
the WilU A<-t, Cnnnjx' v. Cni,nj>r, [i'.tOO] A. < '. 127, is
in |»oint. There a te-tafor lell lii> fee> simple t() liiislecs
in trn-t t<j pav the rent- lo S. .M.. luii in ca-e he «



204 Part IV. — Intkkksts Tuaxskkuukd.



Panv. (H).



Art. 36. ciicuiiilM'rcil the lands oi- rents tVoiii that time tlic testator
revoked the oit't ot" rents "from S. }>[, iiiul from his heirs
mide," oi- sliouhl S. i\I. not forfeit the same and "die
witliout mah* issne him survi\ in;j;," he bequeathed the rents