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ABT. PA(;£

57. Crifts to survivors - - - - 301

58. Gifts to tfike effect on death spoken of as a contingency - 308

59. Alternative gifts, oritjitial and substitutional - - - 310

60. Ctmditions imposed on erroneous assumptions - - - 321

Art. bl. —Gifts to Survivors.

(1) Where there are gifts to several persons, with
a gift over of the shares of such of them as may die
in certain contingencies {e.g., without issue) to the
survivors or survivor, these words are prima facie
construed strictly.

(2) But where there is an ultimate gift over to third
parties, which is only to take place in the event of all
the donees dying in the contingencies referred to, then,
unless all the shares, original and accrued, are settled,
" survivors '" may he construed " others," so as to give
the share of one who dies in the specified contingent
circumstances, to all those who predeceased liim. luid
who took interests under the will, as well a.s lo those
who actually survived him ; for otherwise there miglit
be an intestacy.

o02 Pakt V. -Conditional Ini'khhsts undim; W'ill^, ktu.

Art. 57. (;-5) But where there is siicli an ultimate giit over,

(in(/ (ill the sJtares both original cok^ accrued are settled,
the word "survivors" maybe construed to mean all
who survived actually in person or fifruratively in

(4) Prima facie, survivorship is to be referred to the
period of distribution, unless the gift to survivors is
to take place on the happening of some event, when
it will prima facie be referred to the date whi'ii the
event occurs.

Paragraph (1).

Survivors The general rule that the word '" sui-vivors '' is to be

constriiefr*^ coustrued in its natural sense, was strongly affirmed by the
strictly. House of Lords in Imlerwick v. Tatchell, [190:5] A. ( '. 1 20,

and is well illusti'ated l)y the ease of lie Benn, JJr/m v. /)i^nii
(18^5), 25.* Ch. D. 8:59, where the rule was adlien-d to,
although it probably defeated the testator's intention. There
the testator gave specified estates to his seven children,
respectively, for their respective lives, with limitations
over to their respective children. Then followed this
general clause : " And in case any or either of my s;dd
sons or daughters shall dejiart this life without leaving
any children or child him her or them surviving, I give
devise and bequeath the several estates and interests to
which their children or child respectively would have
been entitled under this my last will, if living, unto my
siirririiia sons and danahfers for the term of their respective
natural lives ; and after their deceases respectively then
1 give their res])ective shares tmto their several and
respective children their heirs executors administrators
and assigns." Charles Benn, one of the sons. <lit'<l
without ever having had a child. At his death there
were livins; three of the testator's children. The others
had died in the lifetime of Charles, leaving children, and

Chap. IV. — Gifts to Survivors. 303

the question tor decision was to whom the estate devised Art. 57.
to Charles for life belonged. Cotton, L.J., said, " sur- pj^i.^ (jj
viving means living beyond some period. Now the rule
for construing a will is, that if a rule has been laid
down fixing, in the absence of any expressed intention,
the meaning of a word, then that meanins is to be given
to it. unless there is something in the context to vary the
meaning ; and if no such definite rule has Ijceu laid
down, then tlie words are to be taken in their natural
sense. There is no canon as to the period to which sur-
vivorship is to be referred, except that in an immediate
gift, it is to be referred to the death of the tt'stator. and
if there is a life estate, then to the determination of the
life estate («). Here the natural meaning of 'surviving'
is living at the death of the iliild. ihe estate devised to
whom for lite is given over on his death. ... It is
said that when all the shares are settled, and there is
a general clause of accruer on the death of the tenant for
life without children, the accrued shares being settled in
the same way as the original shares, that is a sutficient
indication of intention that ' survivors ' means ' others.'
I am not aware of any such rule. Xo (h)alit -ueli a
scheme of disposition tends in favour of the view eon-
tended for, and tr/ten it is followed l>>/ a (jift over in t/ie
e cent of nil diinni inl/iout i.<sui\ lln-ri' ik sii^icitntt rridence
of an intentfon not to use the word ' sure/ rors ' in its niiywi'
sense ; liUt whether a scheme of disjtosition of this kind,
withnnt a ;/ift oriT, is sufficient evidence of -neh an
intention, i> a liifi'erent matter. W'aite v. /Jft/m-ood,
(1M2). ^ < 'li. A]i|i. 70, was relied u|»on by the appellants,
ami the ujiinion <»t' Loi-il S);i,iii i|;ni-; is entitled to gi-eat
weight, but in that ease there was nut oidy a >eitlement
ot" the accrued shares, hnt a gilt oNcr. It i> >aid that
Lord Skijiouxk did not idv on the gift over. Imii I do

(a) See Crippav. Wdcolt (1819). 4.Miul. II, aii.i A*. Jhikf, Ununnh v,
Ihih (IHHII), 1« (;h. I). II'J. UK tu |.. TM.inilty : uml l(> l{,l/nxt Tumi
Council, Kx i/arU .S'uyt/« (IHH4), V.i 1^. |{. Ir. UW), iih to milt[v.


^^^ Part V. — C-oynrnoxAL Ixterksts tindei; Wills, etc.

Art. 57. not collect that tVoin his jiidninciit. The scitlcmciit of
Para. (1). ^1"' >hai-('s i> no douht iinjioi-taiir, l)Ut 1 think that he
mainly relied on the ^ift over." This view of the
importance of the ^ift over i.s sujtported by Harrison v.
Jfarrisou. [11M)1] 2 Ch. IM, and Garland v. Smyth,
[11104] 1 1. \{. i?."). See also ()li,l,rrl v. Olj.lwrt^ [Wm]

1 1. R. ;j2t;.

Paragraph (2).

Ultimate gift On the other hand, in Lucena v. Liicena (1877),
event of all ^ ^'''- '^- -'"'"'• '* i'<'^hln(^ was givoii to the testator's
donees dying children <M|ually. the sons takino- their shares ahsohitely,
the shares of dauohters heino" settled. Then there was
ci eift over of the shares of children dvino- under certain
circumstances, to his survivin;^,' children in the same
maunei- as was provided with res[)ect to their ori^iinal
shares, and there was a gift over in case of the death of
all his children without issue. It was held that there
was enough to prevent the word "surviving" from
having its natural meaning. The Master of the Polls
(Sir G. Jessel) held that surviving children meant those
who survived actually in person or figuratively in issue
taking an interest under the will. The Court of Appeal
agreed with the Master of the Rolls, that the word
" surviving '' was not to lie taken in it- strict sense, hut
considered that sons who did not survive, either personally
or in issue, taking an interest under the will, were let in.
The court said : " The fact of shares being settled, and
the fact of the ultimate gift over being o)d>/ to arise in tlie
event of a failure of all children and issi/e icho are objects
of the testator s hoimti/," [which, if " survivors " was con-
strued strictly, might have had the effect of causing an
intestacy in the event of there being no child surviving,
although issue of deceased children might] " are circum-
stances, each of which may properly be relied upon as
showing that ' survivors ' is not to receive its strict con-
struction. Each of these circum.stances exists iu the

Chap. IY. — Gifts to Survivors. 305

present case. If, with the gift over standiiu/ as it does. Art. 57.
there had been no settlement of the daughttys' shares, we p^ra. (-2).
are of opinion that the word ' surviving ' would not have
received its strict construction, antl must have been con-
strued ' other ' : and our opinion is. that the circumstance
of the shares of some of the chihhvn named in the will
being settled, is not sufficient to give to the word ' sur-
viving,' as a matter of construction, the meaning of
survivors in person or in issue taking under the will,
though that would hace been the effect of tlie tjift to survivors
if the sJiares of all the children, and not of some only, had
been settled. . . . We think that ' surviving ' must
be construed 'other.' and that the personal representatives
of the two sons who died before Mr. Inglis are entitled
to share in the fund in <iuestion.''

It will be perceived from a comparison of Re Benn,
Bemi V. Benn, and Lncena v. Lucena, supra, that the
latter case did not infer that the mere fact of even all the
shares being settled, would be enough to vary the natural
meaning of the word " survivors," although it was held
enough when combined with an idtimate ijift over. The
latter provision appears, therefore, to be essential. The
settlement of the shares then becomes an additional factor
in favour of a relaxation of the strict construction.

Paragraph (3).

It also seems from Lurena v. Lucena, .^ujtra, to have whtie a//
this further effect, viz.. that if alt the shares arc settled, ^''^' ""^'^jy".

. "'■'-' Hot tied,

then '' survivors *' i- rcstrictcij tc^ those who survive "survivors"
actually in person or tigurativcly in issue. See i^'' "/.'.^-^..'^vj"^^
Bilhani, liurhanun v. IliU, [ IIM)] ] 2 ( 'h. I t'.'J { A) : Walte v. survive

... . ^. -. /.I 1 - ii- ; I' / iKtUlllly ill

lAttleiCOnd (\Hii), « r\\. Apji. <<• : Will.f v. I <"•<'/' ,„.,suM or

(\iil()). 1 <'li. !>. ;M-^. r>ut if some onlv <.!' the -hares >'>:«"'Hi^i"ly
^ ^ •"ill'" "*'^"''-

are settled, tie- wok! i> not so restricted, but embnico

(/() III which .loVCK, .1., (liMHenliKl from D'Hricn v. O'Hrlni, fl89()|
2 I, K. 4o9.

w. \

.'^Ot; Part V. — Conditional rsTKUKsTs rN])r,K Wills, ktc.

Art. 57. (ill the otliri- iiKMulxTs ol" tlio flass tiikiii;^ iiiidci- the will.
Para (3). notwithstaiKiiii;^ that tlicv iiia\' lia\c died witliout issue.

A<2;ain, other oxj)ressi<)ns in the will may, ot' course,

motlit'y the natural ineauin^i; of "survivors" or similar

words, for an examph^ of wliidi the reailei- i - refcrrcil to

He Blanfern, Lowe v. Cooke, W . N. (l.SDl). 54, where

the Court of Appeal pointed out that tJie true way to

read a will is to form an oj)inion ai)art from the cases, and

then see whether the cases require a moditication of that

opinion ; and not to begin by considering how far it

resembles other wills on which decisions have been given.

And see to the same effect Lord Halsbury in '"^rale v.

Batolins, [1892] A. C, at p, 343 ; Kinrislmrij v. Walter^

[1901] A. C, at p. 188 ; Inderwiek \. Tafrhell. [1903]

A. C, at p. 122 ; and per Lord Coleuidgk, (\').. in Be

Tippett and Seivbould (1888), 37 Ch. D., at p. 447.

Same The i)rinciples above enunciated as to wills, appear to

emiallv ^^ ^^^ equally applicable to the construction o£ settlements by

applicable to deed. See Doe d. Watts v. Wainewriqht (1793), 5 T. H.

wills. 427, and Cole v. Sewell (1848), 2 H. L. Cas. 180 ; Re

Friend's Settlement, Cole v. Allcot, [1906] 1 Ch. 47.

As to sid>stitutional gifts to survivors, see infra,
p. 3 JO, et seq.

Paragraph (4).
Survivorship "I cannot help saying that the word ' survivoi- ' is a
able^ to period "^^'^rd which requires a context. Survivor of whom ?
of distribu- Survivor when ? Those are both categories of thou<jht
which must be supplied in order to give the word
'survivor' any meaning at all. It may mean the sur-
vivor of the testator ; it may mean the sui-vivor .it the
time of some event contem])lated by the will which is
being discussed ; and what it is must be found out i)y
reference to the context" (per Lord Halsbury : Inder-
xoick V. Tatchell, [1903] A. C, at p. 123).

"If there is no previous interest given in the legacy,
then the period of divi-sion is the death of the testator, and

Chap. IV. — Gifts to Survivors. o<)7

the survivors at his death will take the whole legacy. But Art. 57.
if a previous life estate be oiven, then the period of division paia. (4).
is the death of the tenant for life, and the survivors at that
death will take the whole legacy'' (Cr/'pps v. M'olcoft
(18iy), -i MaiKl. 11 ; and as to real estate, Re Greoson
<1864), 2 1). J. & S. 428).

On the other hand, a gift to several at twenty-one Exceptions,
or to the survivors {Forrester v. Smith (1852), 2 Tr. Ch.
70), or to several with a gift to the survivors on death
without issue {Bowers v. Boivers (18Gi>), 5 Ch. App.
244) goes to those living at the happening of the contem-
]»lated event ; viz., in the first ease, to the survivors when
one of the legatees ilies under twentv-one, and in the
■other case, to the survivors wIkmi lie dies without issue.

The present writer, however, considers that it is im-
possible to extract any principle from the decisions, which
almost all turn on the particular language of the will. In
particular, the cases run extremely fine where there is a
Jife tenancy. Thus, a gift to A. for life with remainder to
B., C, and D. or the survivors or survivor of them is a
gift to such of them as survive A. But if the gift be
■expressed to be given to A. for life and after his death to
B., C, and D., but if any of them die before A., then to
tlu* survivors or survivor of tlicm, this iiiav in- iiitcrjireted
as giving the share of one who dies to those living nt his
decease. See Srurf'ield v. Howes (ITiM)). W B. ('.('. HO :
Whll, V. Baker (1800), 2 1). F. k d. ;").'); but cf.
Camhridje v. Rous (1858), 25 lirav. lOK ; He I'lrhwurth,
Snaith V. I'arlinson, [181)11] I ( 'h. »;12 ; and sec Thci.bald
<i\\ Will-, titli (•(!., pj(. i',')'.\ — (J5i>, where the cases are fully

308 Part V. — Conditional Interests under Wills, etc.

Art. 58.

Art. 58. — Gifts to take effect on Death spoJicn of as a

(1) Where a gift is given to take effect on death
spoken of as a contingency, it will be construed to
mean on death before the period of distribution : i.e.,
where the gift is immediate, death before the testator^
or where the gift is in remainder, death before the
expiration of the particular estate. In such cases,
therefore, the gift will be substitutional.

(2) Where, however, death is coupled with some
other event which may be contingent, then the rule
does not apply : e.g., a gift to A., with a gift over to B.
in the event of A. dying without leaving issue, the con-
tingency j;/77/kJ/rtc«e refers to the double event of death
plus failure of issue. In such cases, therefore, the gift
over is an executory limitation to take effect in the
contingency of A, dying at any time without issue.

Paragraph (1).

Death spoken Where there is a gift to A., and if he shall die, to B., if

of as a con- ^^ words were read literallv there would be a oift over in
tingency _ " . .

must refer to ;in oveiit iiot contingent but certain, and in order to avoid

death witliin . r. i ^ l • • i ii*

some limited ^"^ rei)Ugnaney ot an absolute giving and an absolute

period. taking away, the court is forced to read the words " if he

shall die" as meaning if he shall die before the interest

vests (per Lord Cairns : ( >' ^fah()n^■^/ v. Bnvdi'tt (1874),

L. R. 7 H. L. 338).

Paragraph (2).

Aliter, where But where the gift is to A,, and, if he shall die without
tingency is '-hUdren, to B., there the event spoken of is not a certain,

not fontined \)x^i ;i^ contin«fent event, and it would be importing a
todeatli o ' i o


Chap. IV. — Gifts to Take Effkct on Death, etc. '.W)

ineauiiiy;, and iuldiu*: \vurd> to the will, it' it wore to be Art. 58.

construed to import as a condition which was to entitle B. i>ara. (2).

to take, that the death of A. without children must happen

before some particular period. In these eases, therefore,

it is held that if at any time, whether before or after the

death of the testator, A. shoukl die without leavino; a

child, the <rift over takes effect, and the leoacv vests

in B. iihhL).

At one time it was considered that where a leo;acy was Oijsokte rule

<iiven to A. for life, with remainder to B., but if li. should „i\hout issue

die without leavinf>; a child (or unmarried or under twenty- spoken of as a

1 1 1 p -r» o 1 • 1 "i contingency,

one), then over, the death of B. referred to Ins death related to

in the lifetime of the tenant for life. This presumed rule 'V''^'' ^'■'^T'^'t

1 tlif iH-nod of

(known as the 4th rule in Kdirards \. Jul icards i^liiijl), d\!iiiih\.ii'nm.

1;3 Beav. D'h ) was, however, overruled in 0^ }[ahaiieij v.

Burdett, supra, where the House of Lonls decided that,

prima facie, the death in such cases means death without

a child (or unmarried, or under twenty-one) at any time,

whether in the tenant for life's lifetime or afterwards. As

was pointed out, however, by Lord C'airns, the (|Uestion is

one which dej tends on the words oi' the jiarticular will, and

althouirli the rnlf is prima facie as above stated, yet there

are many circumstances which may have the effect of

restricting the death to the period of the life tenancy ;

e.ff.y a direction to the trustees to assio;ii mid transfer to B.

upon the death ot" the life tenant ; a direction that from

and after the death otlhe lit'e tenant the leoacy is to be at

B.'s own flisposal, toilowed \)\ oil't> over in alternative

event.s, one of which must liapjien ; a direction that the

donee under the; ;,Ml'f over shall take the same share as B.

would have tjiken '"il then livino"; ;i n^jft to 11. wlirii Ik;

>iiall attain twenty-one, and, in case lie -liall die Imvin;^

a diild or children, then to such child (//t>m<- v. I'illan.s

(iXii.'l). 2 .Mv. (fc K. ].'); explained in /■', Sr/utud/iorsf,

Sandl.uld V. S,l,n,L,Umrsl, [l!M)2j 2 < '11. 'IVA ) : and ihc like

See alMj Imirain V. Sontten (i>*>lA), L. K. 7 II. L. Hl.S.

!U0 Part Y. — Conditionai, Intkrksts undki; Wills, ktc.

Art. 59.

Art. 59.^ — Alternative Gifts, Original and

(1) An alternative gift to issue contingently on tlie
parent dying before a particular date, is either substi-
tutional or original. It is substitutional when the
share which the issue are to take is by a prior clause
given to the parent. It is original when there is no
such prior gift (c).

(2) It is essential to the validity of a substitutional
gift that the substituted donee should survive the
person for whom he is substituted. But where the
gift is original this is not essential.

(3) An original alternative gift to issue does not fail
by reason of the death of the parent in the testator's
lifetime, even although he was dead at the date of the
will. But it may fail altogether where the original
donee, although dying before the testator, lived long
enough to destroy the contingency on which alone the
issue were to take.

(4) A substitutional gift to issue where the parent is
a named individual, does not fail by the latter's death in
the testator's lifetime, even although he was dead at
the date of the will. But where the parent was one of
a class, then prima facie —

(a) it will fail if the parent was dead at the date of
the will ;

(c) See /)e7- KiNDERSLEY, V.-C. : Lmijihur v. Bvch (I860), 2 Dr. k Sin.
4,S4, 494.

Chap. IV. — Alternative Gifts, Ohiginal, etc. 311

(b) it will fail if he died between the date of the Art. 59.
will and the death of the testator, if a life
interest is interposed between the death of
the testator and the enjoyment of the
alternative gift ;

(ci it will not fail if he died between the date of
the will and the death of the testator, if the
alternative gift is to take effect immediately.

(5) ^^^lether the gift be original or substitutional,
contingencies and incidents annexed to the gift to the
parent will prima facie not attach to the alternative
gift to the issue.

(6) In an alternative gift to parents or issue, the class
of issue to take '\^ prima facie ascertained as follows :

(a) If the gift to issue is original, the class consists

of those living at the death of the testator ;

(b) If the gift is substitutional, the class consists of

those living at the death of the survivor of the
testator and the person for whom they are
substituted, plus, in both cases, issue subse-
quently born before the period of distribution.

(7) Where there is (at all events in a deed) a gift to
two alternative classes (la joint tenants each class is
exclusive of the other. I>ut {ficmble) in other cases
prima facie the issue of each parent will be sub-
stituted for such parent although otiu-r nu'iiibers of
the class of parents still survive.

!*.\|{.\<.I!AI'II ( 1 ).

... . . ... I , ■ I 1 • 1 \\'ln'ru uifl

■■ A gill to i.-^iH- 1^ >iili^tit 111 Kiiial wliiii till' >li:ii<' \\ Inch j^, j^^^ii.

the is.siK- :ir<- t<i take is liv :i inior cJaii.xL' «'\|»ic»i'(l to ho Niilmtiiuti..iiiil


312 rvirr V. — Conditional Tntkrests unpkk Wills, etc.

Art. 59. ;4i\('n to the i):ir('nt of such is>U(' : and a ^^il't, to issue is an
l'iira~(l). oi'^^i^'il ^^itt when the share which the issue are to take is
not by a jirior ehiuse expressed to he ^iven to the parent "
(per Kinukkslky, V.-C. : Lanphler v. Buck (18(;5), 2 Dr. k
Sm. 484, 4i)4 : Kina v. Cleaveland (1859), 4 De G. A: d.
477, 487 ; Martin v. Jlolgate (I860). L. W. 1 H. L. 175 ;
Be Woollen, Wormald y.^ Wool lei/, [liio;]] 2 V\i. 200).

Word "or" The copuhitive word "ami" instead of " or " does not

"iind'not necessarily render the gift to issue an original gift (j)er

conclusive. James, L.J., in Hurri/ v. //(//'/■// (1870), 10 Eq. 340, 348).

Nor does the disjunctive word " or "' necessarily import

that the i;ift is substitutional. The only true test is

whether any ])rior gift is given to the parent,

(Jift to class Thus, in i?<^ TFoo/^^^, Woinnaldx. Woollei/, supra, the giit
period of dis- ^^'^^ ^^ divide among the testator's grandchildren living at
tribution or the period of distribution or the issue of such (i.e., grand-

ISSllP 01 t IIOSG *

then dead is children) as might be then dead : — Held, that the gift to

an oripinal issue of deceased iirandchildren was oriijinal and not
gift to the ... ...

issue. substitutional as there was no prior gift expressed to be

made to any grandchild who was not living at the }jeriod

of distribution, and that consequently in the gift to issue of

deceased grandchildren, such issue was not substituted for


Gift to A testator gave a share of residue to each of his

their legal daughters for life, and directed that after their deaths

representa- their respective shares were " to be divided between their

tives original • 1 m i ^ -i ■ ti

gifts. respective children or legal representatives : — Held, that

these were two alternative original gifts, viz,, (1) to
children, if any ; but if none then (2) to the legal repre-
sentatives of the daughter, and that consequently no
question arose as to the law ap})lieable to substitutional
gifts (Re Iiohert.% Fercival v, Roberts, [1903] 2 Ch, 'im).
It seems to the present writer almost impossible to reconcile
this case and that of Re Jbhetson, IbJietson v. Jl/betson
(1902), 88 L. T. 401. There a testator by will, dated in
1877, gave all his real and ])ersonal estate to his wife for

Chap. IV. — Alternative (tifts, Original, etc. 313

life, aiul at her death to his two sons, to he divided hetween Art. 59.

them in equal shares. And at their death their or his p.^,..j (j)

portion or portions, it" married, were given to their or his

child or children or tltelr heirs. Testator survived his wife

and died in 1890. One son J. died in 1895 leaving one

living son and having had a daughter who died in 1888

leaving a sou S. born in that year : — I /eld, that the latter

(S.) was not substituted for his deceased father ; because

the ilaughter was only one of a class and died before the

testator, and therefore never could have taken herself, nor

was the gift to the sons an original gift.

In considering gifts to parents ami issu(>. it must always (;ifts to

be borne in mind that such gifts are not necessarily P'g^,g ,^ot

alternative at all, but may be construed to be successive, necessarily
„ . , . ./. alternative

For instance, where there is an absolute giit to sons on i,ut may be

attaining twenty-one, with a iiroviso that the share of any «»ccessive.

1 • • 1 "^ • 1 11 1 1 1 ■ l^iiHcult

Online LibraryArthur UnderhillThe principles of the interpretation of wills and settlements → online text (page 31 of 42)