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and estates to K. M. and liis issue niah- in tail male: —
IIi'hL tliat S. M. took an estate in tail male.

Art. 37. — Bequests of Annuities irifJtout Words
of Limitation.

A bequest or devise, without words of liiuitatiou, of
an annuity or rentcharge created by the will itself,
passes merely an annuity or rentcharge for the life of
the donee unless a different intention appears from
the will.

Authorities. "An annuity may be perpetual, or for life, or for any
period of years ; but in the ordinary acceptation of the
term used, if it should be said that a testator had left
another an annuity of £100 per annum, no doubt would
occur of the gift being an annuity for the life of the
donee. It is the gift of an annual sum of £100 ; that is
of as many sums of £100 as the donee shall live years "
(per Lord Cottenham, C, in Blewitt v. Roberts (1841),
Cr. & Ph. 274, at p. 280).

" I will read from the decision of Mr. Justice FuY, as he
then was. in Hl'ujht v. JIartaoU (1881), U» (Jh. D. 294, what
I take The law to l»e. He says fat ]). i{)C) ) : ' As a general
rule tliei-e can be no doubt tliat the gift of an annuiry to
A. is a gift of the amiuity during the life of A., and
nothing more.' That seems to be unconnnonly good
sense. If I give a person an annuity I do not mean that
it is to last for ever. If I meant it to last for over I
should give my money in another .shape. No doubt that
is the legal effect prima facie. ' It is equally free from
doubt that where the testiitor indicates the exi.stence of the

(.'hap. II. — Gifts avithout Words of Limitation. 205

annuiry without limit utter the death of the person named, Art. 37.

and therefore implies that it is to exist beyond the life

of the annuitant, there the annuity is presumed to 1)6 a

perpetual annuity.' That is to say, if the annuity is

given, not only to the person hut afterwards to others, in

language whieh shows there is to be no end of it, of course

it is a perpetual annuity. * It is equally without doubt

that there are cases in which the court has come to the

conclusion that the gift is not really that of an annuity,

but the gift to a person of the income arising from a

particular fund without limit, and there the court holds

that the luilimited gift of the income is a gift of the corpus

from which the income arises'" (per Lindlev, L.J., in

He }rov<iaii, Moryaii v. Monfun, [1893] 3 Ch. '222, at

p. 22.S).'

As said by LixdLEY, L.J.. in Re Morgan. Morgan v. Application
Morgan. (.<nj>ra,iit p. 22<S). the law. as stated in the nbove ^.,^.^,^^,1 j,j
article, is not open to nnicli doubt ; " the ap])lication of it article,
is the dithculty." And the application of it has proved so
dithcult that it is practically impossible to reconcile the
decisions upon it (rf.. for example, lie Morgan, Morgan v.
Morgan, snjira, and Jient v. Cnllen (1871), tl Ch. 235).

Th<' cliicf (jf the so-calletl exceptions to tlic rule. as<;ift
stated by Fuv, J., in /ii;ght v. IlartnoU, .snj.ra, that a gift "S'!!!;^!^
of an annuity not subsisting when the will is luiidc is a •'^oinetiines
gift of an annuity merely lur the htc lA' the ;iiiiiiiiiant. is inoDme of
really not a ease of gift of animities at all. The gifts ^""''•
within that exc<'ption are gifts of rorjins, and I he amiuity
is us«m| as a mode of ascertaining the amount oi' ror/'us which
the testator desires to go nn<ler the gift. A^ iii-iaiices lo
.•.h(»w this, cases like 'Sln-trh v. W'atlins (IMi". ). I .Mad.
253. atui Ran'l'mg.'i \. Ji'iin'ing.< (l>>0(lj. \',\ \ (•>. W.K iiiav be
cited. In the lorincr thf be(jiir-.t was ol' " ^Jli'n jiei'
anninn that is to say the intere-l of AI l.(Hl(» of mv ;> per
cent. coii>oI«. " In th(r latter it was '' iI2(>(l a year beiiin
part of the moneys I have in -ecnrit\." Tin- more

^06 I'ai;t IV. Intkkksts Thanskkiu{kd.

Art. 37.

rcrt'iit case of ///VA.v v. /,'oss {\^12), 11 Etj. 1-11, is very
instructive upon tliis jioiiit. There a testator gave all liis
jiroperty to trustees on these trusts : he left "the sum of
£.")(■) jM-r iiunuin to he j)aitl (|uarterly to his wife" ; he left

to A. r.. •• the >UM1 of i'.")!) (hu-ill - lier lite."" He left I'SOO
per annum out of the jjroceeds of an East Indian estate to
be ajijirojiriatfMl l»y the trustees to the maintenance and
education of the; eliildicn of his daui^liter >l. II. '• L'ndei"
forfeiture of" the £S()(), the ehihlren were to take
testator's name, and various j)ro\isions wei-e made foi' the
appropriation to their nu)ther of tiie j)ortion of anv child
who died, and for the forfeiture to the other children of
the portion of any child who got in debt. Powers were
given the trustees to sell the East Indian estate should the
profits of working it not be sufficient to pay the annuities
of the children, and the proceeds were to be invested '" in
the names of the trustees for the benefit of the children.''
Should the profits not reach £<S0() annually from the
working or sale of the estate, the trustees were to "charge
the residite " of the testator's ])roperty to make up the
annual sum of £800. Should the sale realise more than
enough, the extra proceeds were to be invested for the
benefit of the children's mother ; but the sum to be paid
to her from such investment was not to exceed £500
annually : — field, that while the annuity to the wife was
for life only, the annuities to the daughter and her
children were perpetual.

Here it seems clear that the testator, though nominally
giving by way of annuity, was really dealing with the
coi'jn/s of the estate referred to. But if it is clear that he
is dealing with annuities merely, that is, making the
annual sums given merely a charge on the property, and
not giving the property itself in the form of income, the
annuities or rentcharge will be for life only, even if they
a[»pear from the will itself to absorb the whole income or
rents and jjrofits of the ])roperty.

Chap. II. — Gifts without Words of Limitation'. 20T

In some old cases, such as Jio.'<s v. Borer (1802), 2 Jo»«fc Art 37.

H. 469, and Kerr v. Middlesex Hospital (1852), 2 D. M. & ,.^

_ , .^.^ . ' Govern -

G. 576. it was held that a mere direction that an annuity ment

should l)e provided out of "government securities," or out ^'^^'^"'^ *®^-

ot" •• tlie funds " was sufficient to make the gift a oift of

the income of the stock to he bought to secure tlie annuity.

It is very doulttful if these cases would be followed now.

It seems a- it' rlic tendencv of the courts was to hold that

the annuity is a gift of income only where the income of

property is specifically appropriated to satisfy the gift. It

is clear that a mere direction that the executors shall retain

and invest sufficient of his estate to pay certain annuities

is not enough to make such annuities perpetual (/yJf Taher,

Arnold v. Kat/ers (1882), 46 L, T. 805) ; nor is a direction

that the annuity shall " be secured " (In re Lord Stratheden

and Campbell, Cowper v. Stratheden and Campbell, AV. X.

(18113), 90).

It is sonit'wliat difficult to sav why the Hrst so-eaUed (Jifts over of
. 1 1 1- .^ II i^ annuities.

exception is considered an exce[)tion at all. It seems
plainly a case of the ordinary application of the rule.
Nothing can be more certain than that a gift over sim-
jdiciter to B. of an annuity given to A. for life onl}', gives
B. a lite interest in succession to A. ( ]Vilki/is v. Jodrell
(1879). i:{ Ch. I). 564; Bl!<,ht v. Ilartnoll (ISSl),
19 < "h. 1>. 294j. In order that 15. may take more than
a life estate, there must be some indication in tlie will that
tlie t('stat(jr intend<'(l him to tak<' more. If there be such
an indication the ;iiiiiiiii\ will be >iieh a- i> intended.
whether it is given in succession to a lite intei-e-t or
directly to the donee.

As an example of :i gift o\cr to another oi' others which l'".\aiii|pl.- ot
does not come within the exception, W'lirdx. 11 '-//v/, [ J IMli)]
1 1. I{. 21 1, is ill jioint. Thero a testator left aiimiitie«. to
his wife for life, to hi- daughter, to his son T. \\ . anil to
W. \\ . Then he directed that on the death id lii> wile.
her amiuitv -honid be di\iiled eipiallv between I". W. and


l\\i;r IV. 1mi;kksis Tkansfki;!;!;!).

Art. 37.

Example of



was to be

\V. \V.. and the ilaiiulitcr ami another son. ami that alter
the (laii;ihtcr's death her annuity was to he divided e(jually
hetweeii her eliihh'en : HchL that the aniiniti<'- \ve!-<' I'or
lives merely and not perjx'tual.

As an example of the excejttion, Mdnscro/i \. ( '(on/ihcll
(I8r)8), 3 De G. & .1. '2:V2. may he cited. There the nift
was of an annuity to A, ]5. tor life, and alter liei- decease
to her childriMi as tenants in common. < )ii the yoiineest
child attaining the age ol' twenty-one, the testator directed
the said annuity to \n\ sold, and the proc(!eds divided
ecpially among the children. Here it was held that the
ainuiity to the children must he a jx'ipetiial ainiiiity ; for,
if it were intended to he for the lives of the children only,
then there would ])e not one annuity to he sold, hut as
manv amuiities as there were children ('/'. Ivraiig v.

Walker ( 187G), 3 < 'h. D. lUl ; Bll<lht v. Ilnrlnnll ( 1«81),

HI V\\. D. 204).

Maiiserijli v. Ca)iij>bell, supra, indicates the circum-
stances which, in the absence of express words, the court
will take into consideration in deciding whether an annuity
or rentchurge is for life or is to be perpetual, or for a
certain numl)er of years. The fact that the limitations of
the use are inconsistent with the annuity being for life
{Banlen v. Meagher (l-Stw), 1. K. 1 J'](i. 240), or that the
whole estate is dealt with hy way of gifts of annuities or
income and not of ror/>iis (Jhiit v. Cullen (1871), <! <'h.
235), or that the annuity is made |)ayable out of a certain
property (Jlirls v. Jx'o.^s (1.S72), 14 E(j. 141), is a circum-
stance tending to show that an annuity in perjx'tuity was
intended. V>ur none of them will make tlx- aimuity one
in perpetuity if the court gathers from the whole instru-
ment that such was not the intention of the testator {In re
Morgan, Morgan v. Morgan, [1893] 3 Ch. 222).

Sometimes when a duty is attached to an annuity, the
annuity will continue ])ayable after the death of the
annuitant if the object of the duty survives. Thus, in /// re

Chap. II. — Gifts without Words of LnriTATioN. 209

Yates, Yate;! v. Wi/utt, [ItH)]] 2 Cli. 43^. a testator attor Art. 37.
directing the trustees of his will to provide such sum as
should together with her income under the marriage
settlement amount to £1,000 a year, made a '' further
annuity " to liis widow of £300 per annum " until my
daughter C >h;ill attain the age of twenty-one years, and
to be applied l»y lier my said wife in and about the main-
tenance of my said daughter." The widow died before C.
attained twcnry-one : — Held, that the annuity continued
payable for ( "."s maintenance till i\ attained that age.

( 210 )




38. W]ie)e the rule in IShelle\/s Case does not (tpjd[i - - - 210

.39. Tf'Ti^/T the cy-prh doctnne applies 216

40. Limitation of heritable interest in personalty passes absohi.te

interest ..-. - -.- 218

41. Rule in Wild's Case 222

42. Meaning of " heirs male,'' in deeds and wills - - - 225

43. Effect of gifts over on failure of issue . . - - 226

Art. 38. — Where the Bule in Shelley's Case does
not apply.
Where in a will or deed there is a gift of heredita-
ments either indefinitely or for life, and there is a
further gift of an estate of inheritance in the same
hereditaments to the donee's " heirs," or "heirs of the
body," the question whether the words "heirs" or
"heirs of the body" are to be read as words of pur-
chase (and so passing the fee in remainder to the
person who may prove to be the donee's heir or heir
of the body), or as words of limitation of the estate of
the donee (and so passing the fee simple or fee tail to
the donee under the rule in Shelley's Case), will depend
upon whether the words "heirs" or "heirs of the
body " are used as the designation of a particular
individual or a particular class of objects, or whether,
on the other hand, they include the whole line of
succession capable of inheriting.

Authorities. "The rule in Shelley s Case (1579), 1 Rep. 93 b, i.s this:
' It is a rule of law when the ancestor bv any cift or con-

Chap. III. — Gifts with Words of Limitation. 211

veyance takes an estate of freehold, and in the same gift Art. 38.
or conveyance an estate is limited either mediately or
immediately to his heirs in fee or in tail, that always in
such cases "the heirs" are words of limitation of the estate
and not words of purchase.' Every part of that statement
is. I think, deserving of attention from the opening words,
which declare the rule to be a 'rule of law,' to the last
clause which says that heirs can never take by purchase
in a case to which the rule applies. It is hardly necessary
to observe that any expression which imports the whole
succession of heritable blood has the same effect [in a
«•///] as the word ' heirs,' though perhaps it was not
always so (1 Hej). lOG b. /;. (i.) 5), and though it seems to
have been thought at one time, and indeed it was argued
as late as 1844 (/larrhon v. J/<urison (184-4), 7 M. & G.
038), that in the absence of technical words the governing-
principle was not the rule in Shellei/^s Case, but the doc-
trine of cij-pres. . . . The question now, in every
case, must be whether the expression requiring exposition,
be it * heirs * or ' heirs of the body,' or any other expres-
sion which may have a like meaning, is used as the
designation of a particular oi- a particular class
of objects, or whether, on the other hand, it includes the
whole line of succession capable of inheriting" {per Lord
Macnaghten, in Van GruUen v. [18'.I7] A. C'.
0.58, at ]ij). (KIT and 077).

As regards deeds '*tln' rule in Slwlleys (aw (li37*J),
1 Rep. \y,\ b, only applies in terms where the word used is

* heirs ' in the plural. The addition of the ordinary words
of inheritance " and their heirs,' makcv^J no difference, even
though ajtpended to the words 'Jieirs of the body.' IJiit if
the wonl 'heir' in thr- -ingnlar be used /'// a (/tu-isf, -.i- 'to A.
for life with n-niainder to lii> heir." tlie rule still a|iplies
( h'iiiff v, Mi'U'iiKi (lt;72). 1 Vent. 211). However, where

* heir ' in the lingular is u-ed. t lie ease is inoi'e ea<il\ tiiken
out of the rule. The ;id(Jition of words of liniitati<»n, as

* and the heirs or heirs ol the body of that heir,' i> ludd

)• '1

212 Part IV. — Interests Transferred.

Art. 38. tlicn to l)c siiftieicnt to sliow tliut tlir licii- is ix'i'sitna
(It'siiinata ; Archers Case (l^'J?), 1 lu'|i. (Itl 1); Kimiw
Mi'lliiKi (1072), 1 Vent. 214 ; (rrmrcs v. Sini/>soii (I6ti4),
1(1 Jur. (;05> ; 12 W. H. 77."^ " : per Kay, L.J., in Krans v.
/■:n(»s. [I.sy2] 2 Ch. 17:!, at \k l<Si».

Rule in The rule in Shelley s Case being a rule of law and not ol'

Sfii/feu'.i Case . ■ , , -ii • ii r i.i • i

aniU-of law. construction, does not come within the scope ot tins work.

It ajiplies wlien the limitations in the instrument are such

as to brin^' them within it. wliatcNcr may have hccn the

intention of the maker ot the instrinnent. I)Ut wiiether

the limitations are such as to bring them within the rule

is a matter of construction, and the principle applicable

is that stated in the article.

It (lot's not Shortly, that jirinciple is this : When there is a gift

^Mieins" or o^ ^ 1'^^ estate to an ancestor, and a gift in succession

"heirs of the niediatelv or immediately to his heirs in the same instru-
bouv mean • i "• o/ ;; • - i- ■ i

jm-AOHir ment, wiiether the rule in iShelleij a ( ase apphes depends

dtaiijnatu'. ^^ whether the word *' heirs " is intended to be used as a
general term, or as a specific description. If it is used as
a general term including all who could inherit from the
ancestor, the rule applies, whether the settlor intended or
did not intend the ancestor to take more than a life estate.
If it is used as a specific description of an individual to be
ascertained on the ancestor's death, then the rule does not
apply, and the ancestor takes merely a life estate, while
the individual who will be his heir takes a remainder in
fee, contingent on his l)eing the ancestor's heir at the
ancestor's death.

The rule applies equally when the expression is not
"heirs " but '" heirs of the body," or " heirs male of the
body," or '" heirs female of the body," or in a will " issue,"
or any other expression which would be equivalent in a
will to words of inheritance in a deed {}>er Lord Mac-
NAGHTEN, in Van Grutten v. Fo.mvell, suj}ra. at ]». 611 ).

It applies, too, when the limitation is to the issue or
heirs of the body by a particular marriage. Thus, in

Chap. III. — Gifts with Words of Limitation. 213

PeUiam-CUntot v. J Juke of yewcastle, [lilOa] A. C. Ill, Art. 38.
the devise was to " L'harles if he marries a fit aud worthy
gentlewoman and his issue male to sucli issiK^ and tlieir
male descendants in failure of which,'* then over : — JJeld,
that Charles took a fee in special tail.

The commonest case of limitations excluding' the rule Limitation
in Shelle^^s Cu.^e, is where the limitation over is to the iij^^."^;, jj^
ancestor's '' heir " (in the singular) with words of in- the singular.
heritance attached to heir : as. e.</.. to "A. for life and
on his ileath to his heir and tlu' heirs ot >U('li licir's body."
In such a limitation as that A. takes merely for life, and
there is a contingent remaind(M- in tail (or in fee as the
case may be) to whomsoever may become the heir of his
body. The exception is usually called the rule in A)rher''s
Ca;fe. from the case in Coke's rej)orts. which establishes
the exception (1 Hep. 66). It is, however, merely an
instance of the application of the general ride that the
person to whom the gift over is made, must be persona
desKiiiata. See per Kay, L.d.. in l\,raii.< v. J'^rans, supra.
And in- mav be persona designata even though the word
used is not " heir " (in the singular), l)ut " heirs " in the
])lural, though as Kay, L.J., in the same case points out,
it is then more dilHeult t<t hold tli:ii he \i> jiersona designata
than wiiere the sineular is used, it mav be added that
the wonl "heir" is not. {jrojierlv speaking, a word of limita-
tion or inlieritance in a deed. aii<l st) if no woi^js of
inlieritance are addeij to it (see jn'i- LiNDLEY, Ij.fl ., in
Kruiis v. Kvaiis, siipni, :it ]t. IH4), or if it is not so
explained by the context as to make it e(juivalent to heirs
{Jioiiij v. 'J'aijlor (1(511), K) Viner, 21ii), the person
answering the deseripti(tii will take only a life estat(!
(siipru, ji. 202).

A nndtiluile of e:i~«' - Mii;^hl In' cited w here I he I i mi I at ions ("ontiurv

liave b.-n held t<, .•xelinh- ..r not to exclude the ride i„ "'i<"'«tiun

uiH's nut
Slu'lli'ifs ( < I »iiallv. however, these cannot be taken ))rcvcnt nilo

an e.-^tabii.^hiug any rule on the point decided, as they turn "'"" ''^'

214 Part IV.^ — Interests TuAN8i-i<:uuKn.

Art. 38. oil tli(> words of the |i;irliculai- iiistriimcnt iindtT (.'oiistruc-
iion. and iiiaiiv of the older decisions arc now of little
authority. iSec jtcr Lord MaCNAGHTEN, in Wm (indlcnw
Fo.rict'lL supra, at |). (173. It seems clear, however, that
no intention on the ])art of a settlor or testator that thr
ancestor shall take only a life estate, whether stated in
express words as " for life and no longer'' (Macuamara v.
Dilloi, (188:5), 11 !.. Iv. Ir. 2'J), or <iathered hy implication,
as bv his lieing given liberty to commit waste (Join's v.
}for(taii (178;5), 1 Bro. C. C 206), or being ])ut under an
obligation to repair {Jesxon v. Wrlyld (1820), 2 P)li. 1 ), or
a gift of the surplus income merely during the lives of
certain annuitants {In re Ynnmcuis' Will, [JIM)1] 1 Ch.
720) will prevent the rule applying. Neither will words
of limitation superadded to the word heirs or heirs of the
body as a rule (see supra, p. 213), nor words of distri-
bution (Jesso)) V, Wri(ilit, supra), nor both combined.
See Jordan v. Adams (1861), 9 C. B. (n.s.) 483. If,
however, the settlor adds words expressly explaining that,
by the words " heirs " or " heirs of the body," he means
sons or children of the ancestor (I^oive v. Davies (1729)^
2 Ld. Raym. 1561, and cf. Roddy \. Fitzgerald (1857),
6 H. L. Cas. 823), or if he explains the words by
reference to other limitations {East v. l^cyford (1853),
4 H. L. Oas. 517), this will prevent the application of the
rule. But the explanation must be very definite to exclude
the rule. Thus, In the Estate of Baron Keane, [1903]
1 I. R. 215, a devise was to A. for life "and his issue male
in succession, so that every such son may take an estate
for life, with remainder to his first and every subsequent
son successively according to seniority in tail male " : —
Held, that A. took an estate in tail male.

Example of A recent instiince of limitations in a deed being such as

exclusion of ^^ exclude the rule in Shelley s Case, is the case o^ Evans v.

Evans, supra. There, in a deed of grant after a life estate

to A., there was a limitation to the use " of such person or

Ceap. ITT. — Gifts with "Words of Limitation. 215

persons as at the decoaso of the said A. shall bo his heir Art. 38.
or heirs at law and of the heirs and assigns of such
person '' : — Held, that A. took a life estate only, followed
by a contingent remainder in fee simple to the person who
might prove to be his h(nr, who took as a purchaser under
the deed. LiNDLEY, L.J., said: "'I have found no case
in which the doctrine in Arcliers Case has been applied
to a limitaTJon to heirs in the ])lni-al : but in this case
although the expression ' heir or heirs " occurs, that
expression is used in the sense of heir in the singular."

In Van Grutten v. FoxwelL [18971 A. C. 058, the rule Example of
in Shelley s Case was held to apply. There, the limitations of rule,
were to trustees for the use and benefit of the testator's
children living at his death, with power to ap})ly what
]iart of the income trustees approved to the maintenance
of such children until they should reach full ago or marry,
and after that to permit them to take the profits of the
land for their lives in equal shares, and on their deaths to
stand seised of the lauds in trust unto and to the use of
the heirs of the body and bodies of such child or children,
if more than one, equally to be divided between them,
such lands to be legally conveyed to such heirs of any
child or children in equal shares as they should respec-
tively attain the age of twenty-one or be married, and to
their respective heirs and assigns for ever, with power in
the meantime to apply the rents and ])rofits in the main-
tenance and education of such heirs of his child or children.
In CilSO there \va< no diilil ;it hi- death, gift over : Held,
that the children surviving the testator took fees tail.
Lord MACNAiillTKN. in a judgment which exhausted the
learning on the subjr-et, laid down the rule hriefh in the
\v(;rds adoptecl in the artiele.

In cone|u>ion, three points may be noted. In (he first Wln'ic nil(> i;<
ce the rule is ]]o\ apphe(l so sfrictlv in exccutorv
trusts as in executed tni-t-, or other for^nial limitations
( f.ard (ilriiiirr/ii/ v. liiisrdlf ( 1 7i(i'. ), ('as. /. 'I'aJb. /». and

216 Pai;t IV. — Intkkksts Thansfkukki).

Art. 38. iMV.v'icT. Lead. ( 'a-., p. 7t".;') mul notes). Tims, if llicrc is a
(-•Icar intention to i;ivo the ancestor merely a lite estate, with
reniainilt'r to the eldest son, the court will so intei-pret it
{Trcror \. 'fir cor (11 •20), 1 P.Wins. ('.22). Further, it
is to be renuMiiheroel that the word " issue," when applied
to gifts of realty hy a will, is usually read as equivalent to
heirs of the hody (1^ odd// \. Fitz<ierald (1857), •', 11. L.
Gas. &l'iS. at \). 872), and so may the word " cliildreii,"
when, by the context, it is made equivalent to "•issue"''
(BoH-en \. A<^»v.s- (1881). !• Apj.. ("as. 8it()). an<l in >U(li
cireuni-tanees the rule in Shidl('//s Case applies a- if the

Online LibraryArthur UnderhillThe principles of the interpretation of wills and settlements → online text (page 23 of 42)