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son dying without issue shall go to the other sons, siicii :i .jncstion to

disposition may have a different meaning in different wills. «l''i'innne

' -^ ... when a gift

It may be intended to take efifect by substitution, or it may is substi-
be intended to take effect by way of a reversionary limita- t"tio"a .
tion. The intention of the testator may have l)een to
give the legacv to each son. with an I'xccutory limitation
over in the event of the son dying at an;/ time without
issue ; or it may have Ijeen to siihsdtiife the issue in jdace
of a son who should happen to die he/ore f/ie periml of
dislrihittion. In the Hrst case, a son who survivetl the
testiitor would tak<' a vested interest liable to be divested
in the event of his living witiiuut l.-aviiig issue (dr. -iiice
the ( 'onv<'yancing Act. 1^!.S2. without having had issue
who Ii\c-(1 to attain twenty-(jne ). In the second case, if
lie -urviveil tjie period t»f di>triliiitinii, he wuuM lake
aI>solutely, In the lirst case, if he di<M| helore the lestat«ir,
without i-sue, a (piestion would ari>e :is to whether the
h'gacv <lid not lapse. In the -econd cut no siicii (|Ue>tion
could arise, as the other -on- woidd lie -uli-titnted ;is
legatees. See judgment of Ti KM:i:. i-.d. : Wm; \.
Watson (iH't'}), 7 I). .M. i\:<i.. at p. 2.')^. In-liorl.an



314



l\vKT V. — Conditional Intkhesi's rNi>Ki; Wills, ktc.



Art. 59.

Para. (1).



(Jift maj- be
eitluT
absolute or



alicnuitivc l('n;acv or devise, viz.. to A. it" living-, hut if not,
to J>.. (litfcrs essentially t'roin ;i ;^it't to A. \vitli:m oxecutory
•iit't ov<M- in certain events.

Moreover, a u'i'f niav I)e an absolute ^'li't or a substitu-
tional one acconlin^- as the {)ro[)erty is real or [>ersonal.

substitutional Thus, a oift of freehold land to A. or his heirs, «;ives A. the
accoriling as _ . " . . . .

it is of real feesini]ile it" he survives tlie testator, and nothin;^; to Ins
or personal ]^,.j,.^ j,- j^,. ,|^^,.^ ,^^,^ ,,^^^ .^ similar .aft of i.ersonal estate
estate. _ .

would he a ;;ift to A. if he survived the testator or to hi.s

heirs if he did not (Be I blwt.son, fhhetsony. IbhHson (11H)2),

^8 L. T. 4(;i ; Read v. Snell (1743), 2 Atk. 64')). As to

a gift of land to A. or the heirs of his body conferring an

estate tail, see Harris v. Davis (1844), 1 Coll. 41G ; Gree/i-

warj V. Greemcai/ (1860), 2 De G. F. & J. 128. In such

a case it is conceived that s. 32 of the Wills Act would

prevent a lapse.



Paragraph (2).

Substitu- The nio>r important distinction between oi'igiiial and

must -smA-ive substitutional ahernaTive gifts is, that it is essential to the
the person for validity of the latter that the substituted issue should

whom lie is . " . . ■ ■ •. , i i

substituted, survive tlie ])arent tor wliom they are substituted, wheri'as
there is no similar (pialitication recpiired where the alter-
native gift to issue is original.

As KiNDERSLEY, V.-(J., put it in Lanphier v. Buck
((1865), as reported in 34 L. J. ('h. 650, 657, approved by
Joyce, J., in Re WooUejj, Wormald v. Woolley, [1903]
2 Ch. 2(H;. 209): "I conceive that the true i-ule u|ion
princijde that ought to be applied is this : that if the gift
be an original gift to issue, they need not survive the
parent, but if it be a gift by substitution, then they must
survive the j^arent in order to be substituted for the
]>arent.'"

Thus a jiift to A. for life with remainder to his cliil-
dren : hut if anvchild be then dead then his intended share



(HAP. IV. — Altkuxativk Gifts, Ouiginal, p:tc. 315

to o-o to his issue, l)ein<2; a substitutional ^it't. only sucii issue Art. 59.
can take as surviveil the deceaseil parent. JJut it" the <iit't p;i,.;v (2).
had been to A. tor lite with remainder to such ot" the chil-
dren of A. as shall he then livin;i\ and the issue jwr sfir/>i'.<
of such of his ehiklren as shall he then dead, that would
have heen an ori<j,inal <2,ift to the issue, and all of them
who survived the testator would take a share although
they may have died before their own parent, there i)ein;i'
nothing; to show that the contin<;ency of beinu- alive at
the period of distribution annexed to the gift to the parent
applied to the alternative gift to his issue (as to which see
in/ni. p. :51S).

PAKAGItArH {'^).

W'licrr an alternative gift is original ami not su b>ti- Death (tf
J. • 1 • • 1 • 1 1 1 1 1- 1 . • i-i parent in

tutKjnal It IS ol)VU)Us that the drath ot the ]iarent in ^'i^ testatoi-'s

testator's lifetime cannot make the gift to the issue lai)se ; iift-'timo dofs
,. I ; • 1 • • 1 . TT ""^ vitiate

lor. e.c Uijjiotlu'st^ nothing was given to the parent. -ihoi'<^'- alternative

over, for the same reason such y;ifts are not vitiated g'f'^f,'^ ^^^"^;

- _ ^ whether it he

liecause the parent was dead at the date ol" the will. Tims ()iio;inal or
where tiie mft is to a class "' then livin^. und the issue of ^" ';\'^^'
such of them as may be then di-ad,"" the issue of those
dead at the date of the will take as direct and original
members of the class, and not l)y way of substitution
(^Tytherltifjli v. Jlnrhin 0^*3.0). (i Sim. i)2'J ; /Inistuiaji \.
Fear.se (l^i71), 7 Cli. Apj.. ■!">}.

< tii ihi- other lianil, in some rare cases, although tlu' .t/iV»c, where

I- 1 ,. ii ^ . i 1 .11 pareiii has

parent may die heiore tlie testator, lie may "*'verlli<'l('ss jj^.j^.^j j^^i

have lived long enough to destrov tin- eontingencv on enon^'li to

, . , , , . Ill • • 1 'lestniV the

whii-Ji :ilon<' th<- i~-iir wi-rc lo take (wlirtliei' as origuial ,.,„,, i,,j^,.,„. v

or Milt-iitiitioiial |(Mr:if«'<->). in such (•a>es. if the parent "I' ^^''"'V'*^

. . , . . aheinative

be a uaMM-d iudi viibial. thi-ri- will be a lapse, and if In- be ^jifi is in

,■ 1 1 •111 . .• ■. I ■ • . 1 take etlecl.

one ol a rl.i - h<' Will drop out ol il ; ami in eitln'i- cax-
the i«.iue will taki' nothing, bi-caiix- in th<' rvent they have
not been -tib-f if utcd for him. Thu> a lestaf(»r left his
property in tni»i for hi- wile I'or life, ami liiialU for -iieh



316



Pakt V. — Conditional Interests undeu AVills. inc.



Art. 59.
Para. (3).



ot' his cliildrcn :is slioiild lie li\iii<i; <it t/trdciil/i of lii.< irife,
aiid tile issue oi M\c\\ n.< )ihoiili{ lie dtud . Tlic wife ilifil
in l.S'Jl ; one ol' the cliildroii survived licr and died in
l^DH : and the testator died in UMK) -.—llrhL ihai ih.' ;:ilt
to the deceased chihl I'ailcii. as he died in the totator's
lifetime : and that the alternative ^ilt to his issue tailed, as
it was only to take effect it" the parent had died hct'ore the
testator's wife (Re h'iinu'dr. Khnwur v. luimelt ( llt04),
IH) L. T. .')l}7). An analogous decision was arrived at in
MrK,(>i v. Mi-Kay, [1901] 1 I. H. JO'.I. There a t(-rat.)r
had devised lands to trustees upon trust for his son 1).
and his heirs upon attaining; the a(^e of twenty-six : hut
if D. should die hefore attaining twenty-six, then in trust
for testator's eldest son W. By a codicil he revoked the
gift to D., and gave him a rentcharge instead, in full sub-
stitution for all interests to which his son or his heirs
were entitled under the will. D. attained twenty-six in
testator's lifetime : — Held, that "\V. took no interest in the
lands, which fell into residue, because they were only given
to him if D. failed to attain twenty-six, a contingency
which had not happened. See also to like effect, Ajdin v.
Stone, [1904] 1 Oh, 54:3. where the original gift failed
because the legatee witnessed the will, and the suljsti-
tutional gift failed because the original legatee was alive
at the period of distribution.



pAHAGHArH (4).

Substitu- With regard, however, to substitutional gifts, '' it

legacies do seems formerly to have been a question whether a bequest

not lapse by over, in case of the death of the legatee before a certain

original period, could take effect where be died during the tes-

legatee where ^j^^Qj.'^ life, though before the period sijecified. In the
he IS a named ' « i i _

person. case of Willing/ v. Baiae (1731), 3 P. W. 113, legacies

were given to children, payable at their respective ages

of twenty-one ; and if any of them died before that age,

the legacy given to the person so dying to go to the



('hap. IV. — Alternative Gifts, Original, etc. ;U7

survivors. Ono havino; died under twenty-one in the life Art. 59.

of the testator, it was contended that his legacy lapsed, pa77T4)

and did not go over to the survivors. The argument

was. that the bequest over could not take place, as • there

can be no legacy, unless the legatee survives the testator ;

the will not speaking till then : wherefore this must only

be contended where the legatee survives the testator, so

that the legacy vests in him, and then he dies before his

age of twenty-one." It was, however, held, and is now

settled, that in such a case the bequest over takes place "

{Humberstone v. Stanton (1813), 1 V. & B. 385).

Tims if there is a gift to A. for life, remainder to B. Instance of a
1 , , ,, 1 , •,. • 1 T I • 1 • ? 7 J 7 substituted

and ( . equally, hut it either die fw/orc his g/uire shoitld gjft which

ln'i-oiiit' nai/afile without issue, his share is to <io to the ^°'-''^ "*^^
. . . . . . lapse.

survivor : if B. dies in the testator's lifetime without

issue his share does not lapse, but goes under the alter-
native, or substitutional bequest, to C. (Jlumjihrci/s v.
Hoices (1830), 1 R. & M. 1)39).

^^o where an individual i< named in the will as original Original
, , . , , ,,.,.. legatee dead

legatee, and it turns out tliat lie was dead at its date, it is at the date

obvious that the testator either made the will on the ^^ ^''^" ^^'^^•

hypothesis that he was alive, or under a mistake. In

either case it is equally oljvioiis tiiat the testator inteiuled

the alternative gift to take effect, otherwise the will would

be al>solutely meaningless. In such cases, therefore, the

substituted legatee takes notwithstanding that the (>ii;^inal

legate*' was d<'ad at the date of the will ( M(nil(t<ni \ .

Sur^Ua (1K2(;), I Kii~^. It;.'. : AV n,ur,-s { \>^1\\)A Ch. 1).

iMi» : AV Mihs, MIL'S V. Miles {lUiH)), t;i I.. T. ;;:.:• : h;- v.

Kin. I { \X^)->). 1<; r>eav. 111).

But the reasoning in relation to an original named
legatee dying in the te-tator"- lifetime (whethei- lieloic
or after \\\>- date df the will) doc- not ;ipp|\ wlieic llicrc
is a gift to a rlnss with a -iib^lit iitionary ;;iri lo their
is«u<'. In such ease- there i- nothing to sliow that the
U'statoi" inti-ndeil that a per-on who wa- deail at tlicdatf



:U8 rAKi' V, — Conditional Intkuksts i-nhkk Wills, ktc.

Art. 59. (»(' the will >lioill(l ever Itc nn-hitlcd in flic i-l(i.<.< ; iiidccd,
p 7,, his inclusion would liecontrarv to the principles cnuiiciatcd
in Art. 20, (gnjud. p. lOo). Consequently, us such a
j)erson rould not he an original legatee, y>/7'm(?/('i(7V his
issue cannot take Ijv substitution (/iV Wchstei; Wiihten v.
Mello (1883), 23 Ch. D. 737 ; ('hr/st<y)/t<'rsoii v. Xdt/lor
(181(;). 1 Mer. 320 ; AV (f^hn-, (tfjil,',- v. Offih'r (I'JOO).
83 L. T. 758 ; Re Gorrin<je, GorriiKie v. (jorrituje, [ll>0(;]

1 Cli. :'.]!)).

Same con- And similar considerations ;H)])ly, where there is a iix^X

apply to"" ^o a class ascertainable at the death of the testator, bur the

suLstitutional (.njoyniont is postponed to let in a life int(>rest with a
yifts to issue ■,■..,.„ . ,, , , , .. ,

of deceased substitutional gitt to issue ot deceased niemoers oi the

members of a ^\^^ j^,^j ^^g oj- ^\^^^^^ Jj^g j^f^g^ ^h^ date of the will, but

class wliere

they die in the testator's lifetime. For such person would never

Sg^menibeTJ' '^^ ^ member of the class at all ; and the language is cou-

of the class, sistent with the intention that only the issue of members

of the class {i.e. persons who surviveil the testator) dying

before the jieriod of distril)ution should be substituted for

their jiarents (AV llannam, Iladdelseij v. Han/iam, [1897]

2 Ch. 3U).

But it is otherwise where no life estate is interposed.
As North, J., said in the last cited case, " If there had
been an immediate gift to take effect at the death of the
testator, to his brothers and sisters, followed by a substitu-
tion of children of deceased's brothers and sisters for their
parents, the reference to children could onli/ he to children
of brothers and .aiders irho had died in the lifetime of the
testator, because there would be no other time to which it
could be referred. In the ])resent case that is not so : a
j)revious tenancy for life is created."

Paragraph (5).

Death of tlie Although the verv nature of an alternative gift is, that

?egltee before *^^^ original legatee takes nothing if he fails to survive the

the perioci of stated period, that condition is noi prima facie extended to

the alternative legatee. Consequently, in the absence of



Chap. IV. — Alterxative Gifts, Original, etc. 810

any intention to tho contrary, the latter le^fatoo will take. Art. 59.

althoncrh he also dies within that period. This was pai^T^o)

distinctly decided by the House of Lords with regard to

alternative ori(finaI tjitts in the often cited case of Martin v.

Holgate (1865), L. R. 1 H. L. 17.'). But the learned lords

in that case seem to have doubted whether the same rule

was applical)le where the gift is substitutional. In

particular. Lord Chelmsford said (p. \^1), - Where a

gift is substitutional, it may much more easily be presumed

that a contingency on which the original gift dejiends is

intended ro be applied to the gift which comes in its ]ilace,

than in the case of the original and independent gifts."

However, modern decisions have laid it down that the

same principle is equally applicable to substitutional as to

original gifts. Thus, in Re Bradhitri/, Witnj v. Bnullnirij

(ISJUiJ, 7:5 L. J. Ch. 51)1, the proceeds of residuary estate

were to be held upon trust to pay the income to testator's

wife for life, and after her death to transfer to his younger

daughter D., but if she should be then dead, to transfer

the same to any child or children of hers, and '" failing

such issue" there was a gift over : — Held (the widow. D..

and children of D. being all in existence), that the gift

over never could take eti'eet. For if 1). outlived \\\r

widow she would take ab-olntelv. ami if >lie did not. then

her children would take, whether they survived the widow

or n(jt. See also Jie Hall, .SUdter^ v. /hill (l.S.S.S), 4U

(li. 1>. II.

Somewhat analogous is the case wher<; tin* fir-t gift is to (Jifts to a

a class ax temints ill romnion, with sul)stitnti()nal uifts fo <-''^"*'< "'tli

. . . J^iiiwtitii-

the issue of anyone of the original class who may die tional giftH

before the period of distribution. In -neb (•a>-e-> tlie i>>ue 1^!,,^!^"

take as joint tenants in the absenee of words of >e\t'rance

(lie Jinii's, Jlnim- V. Ll,>;/d ( 1.S7.S). 17 L. d. ( 'h. 775 : It,'

liatlersliifg Tmxtt, [l«i)6] 1 I. !(. tldo : ;nid >ec mU,, /,',>

Tiinwr Cl8ol), 34 L. .1. Ch. t;iin : /.', l-'l,nr,i\ M,illlns,>„ \.

(ri)i>diri/ii (l^(ltOj, (12 L. T. «)77). '\l\i> iirinciplc. however,
is jiot ap|ilie;ibl«? where the gift is to ~ever.il ( (»r to a class)



320 1*AKT V. — Conditional Intkkksts undku Wills, ktc.

Art. 59. ,),• the >urvi\(>rs or sui'vi\(>i' of them. In siicli cases,
Para (5). it none survive the period of distrihutioii, there is no suh-
stitutiMl le<i|;atee, and the ori;;"iiial gift reinaiiis in full force
{}f<u'viott V. Ahel (18()9), 7 E(i. 478 ; Re Snnmlrrs ( I.SC,-)),
1 Eq. (575 ; Hoihjsoi, V. Smit/ison (IS')C>), .S D. M. & G.
604 ; and see sHprn, ]t. 201V).

PAKA(iItAl'H (()).

When alternative^ legatees are a class (('.;/.: issue), the
class is ascertained differently according as the gift is
original or substitutional. If it he suhstitutional, the class
consists of all who are in existence when the substitution
takes place {i.e.,iit the death of the survivor of the testator
and the original legatee), j>ln.s all who subsequently came
into existence before the period of distribution (Ive v. Kinfjf
(1852), 10 Beav. 46 ; Re Jones, llinne v. IJoijd^ .supra ;
Ee S'ibleij (1877), 5 Oh. D. 41)4). ]5ut if thegift is original,
then the class consists of those living at tlic death of the
testator (whether they survive the original donee or not)
])lus those subse(|uently coining into existence before^ the
])eriod of distribution {Re Smith's '/'nists (1878), 7 ( Ui. D.
6G')).

Thus a gift in trust for testator's widow for life, and
after her death for his children or their issue, by a substi-
tutional gift, only those grandchildren would take who
survived their parent. Whereas a gift to the widow for
life, and after her death for such of the testator's children
as should he then living and the issue of those then dea<l,
Ix'ing an original alternative gift to the issue, all grand-
children would take who survived the testator, even
although they died before their parent the original
legatee. See Re WooUe//, ]\'on)i(il(l v. WooUei/, [1901^]
2 Ch. 206.

Paragkai'H {!).

gift^to'Vwo ^'^ '' marriage settlement of stocks there was an ultimate

classes exclu -trust for "all and everv the child and children or grand-
si ve of eacli
other.



Chap. IY. — Alternative Gifts, Origin' al, etc. Ml

rhilJ of A." livino- at tlic death of tlio survivor of the Art. 59.
husband and wife: — HcUL that the words "or ^rand- Para. (7).
child '' could not he construed as givinf; a tenancy in
common to the chihlren of A., with substitution of the
issue of anv deceased child i'or him or her {Price v. Lock/e//
(1^43). (» Bear. 180). but was a gift to classes as Joint
te/uiiits in the alternative, so that each class was exclusive
of the other : and consecjuentlv that there beinu childi-en
of A. alive, no grandchild could take {h'r Cole//, (iihson v.
(ifhson, [1901] 1 Ch. 40. and see Holland v. Wood
(1870), 11 Eq. i>l). It wouhl seem, iiowever, that in a
will it might have been ditferent. In a settlement, where
jn'operty is given in default of appointment to '* the
children or any the child or remoter issue of A. on the
happening of certain contingencies, a cliihl living at
the happening of the contingencies will take to the
exclusion of his issue (Re Lund, Stan/ield v. luene (VMi),
89 L. T. 606).



Art. 00. — Conditiuns imposed on Erroneous
Assumptions.

If a testator makes a condition based upon a mistake
of fact, the condition will nevertheless be binding,
unless it appears that the condition was only to take
effect if and so far as the assumed state of facts
remained unaltered at his death.

Tliese cases generally arise in relation to directions to Din-ctions
brin:; certain sums intoaccouni. "■ '""^ . .

'^ iiilxjuicfs into

hrroiHou- recital ca>c«. may he diNnlcil into two '

«-las.ses. Ill class one, the tc-tatnr bv a|>t wurd- direct- a
legatee to bring a parlicidar -urn into h(»tclipoi. lie
mav recite erroneon-lv that a parlicidar -iim ha- been
advanced, and direct the b-galec t(» bring thai -iiin, or ilic



.'522 PAltT V. — OONIHTIONAL TxTKliKs'l'S rxi>i;i; AViI.LS, ETC.

Art. 60. sum * licrcinbotbrc recited to have Ix-eii adNanced,' into
h()tclii)()t ; or he iiiav, hy other a|)|>ro|»i-iate hm;j,ua^(',
;<lio\v an intention tliat the lei^atee sliall ahsoliitelv and in
any event lirini; the sum mentioned into liolchpot in
other words, that the h^<i;atee sliall onl\ take iijion the
Ibotiuii; ot" i)rine;in^" that ])articiilar sum into account, and
only receiving; the hahmco payahh' to him on that footing;.
In class two, tlie testator recites the debt owino- from the
legatee — again he may recite it erroneously — and then.
directs the debt, 'or so niucli therc^ot' as shall remain
unpaiil ' at the testator's death or the time ol" distribiit ion.
to be deducted and brought into account. In eases ot'
this class the testator really intends that thei-e shall be
brought into account iho debt, oi* balance thereot", which
is actually owing at the time ot" deatii or distribution '"
(per SwiNFKN Eadv, d. : Jtc Kelseij, WooUeij \. h'cl. ■«'//,
[1905] 2 (*h. 4()r> ; and see also, as to class one^
Be Wood, Ward v. Wood (188(]), M Ch. 0. 517, and
Re Aird's Estate, Ami v. Quid- (187'» ). 12 (^h. D. 2ill ;
and as to class two, J\e 7aijlor, 7\)))tki)t.s v. Undto'/iai/
(1883), 22 Ch. T). 495).



( :^:^3 )



CHAPTER V.

THE INTERMEDIATE INCOME OF CONDITIONAL
GIFTS.

ART. PAGE

61. — IVhether contimjent gift comprines intennediate income - 323
62. — Income of a fund (jii-en to a contingent class after one

hi< iiff, I,,,,,] a vested interest . - . . . 329



Art. 61. — Whether contingent Gift comprises
intermediate Income.

(1) A general residuary but contingent bequest of
personal estate includes the intennediate income
during the period allowed for accumulations.

(2) A contingent devise of real estate does not
include the intermediate rents.

(3) A blended residuary contingent gift of both real
and personal estate, prima facie includes the inter-
mediate income of l)()tii.

(4) A contingent general legacy does not carry
interest, nor (hjcs a contingent specific legacy carry
intermediate income, unless :

(a) It is expressly or impliedl)' directed to be at
once severed from the general estate; or

(h) The legatee is an infant with regard to whom
the testator is parent, nr //( lorn jiarentis,
and has not provided :iny other liiml lor his
maintenance ; or



324 Part Y. — Conditional Tntkhksts rNM)i:i: Wii^ls. ktc.

Art. 61. (c) The testator has directed the income to be

applied for the legatee's maintenance (semhle).

(5) If a contingent legacy or devise wliicli carries
intermediate income is settled on persons in succes-
sion, any accumulations not applied for maintenance
form an accretion to capital.

Paragraphs (1), (2) and (.H).

Intermediate " Since the case of the Covnte.ss of Bect'tve v. JIodaKon
income of (18G4), 10 H. L. Cas. 65(]— I think long ])efore— it has

residuary \ /' ^ r^

estate. been settled law that a gift of residuary ])ersonal proi)erty

on a future contingency, carries with it the iiitenncdiate
income : the same rule applies to a mixed fund. But
that rule is modified by the Tiiellusson Act. That modifi-
cation was worked out most carefully by the House of
Lords, All T can do now is to declare that the income
should be accumulated for the benefit of those who may
be ultimately entitled, for twenty-one years, or until i\w
death of Mrs. 8inart without a ehihr' {per ('OZENS-
Hardy, J. : Re Taylor, Smart v. Taylor, [1901] 2 Ch.
134: ; and see also Re Lindo, Askin v. Ferf/u.wn (1<S88),
59 L. T. 4G2 ; Re Adam.^, Adams v. Adatns, [1893]
1 Ch. 329 (a) ).

In Genery v. Fitz<jerald (1822), Jac. 4()8, Lord Eldon
said : " Where personal estate is given to A. at tv.enty-
one, that will carry the intermediate interest. If a
testator gives his estate Blaekacre at a future period, that
will not carry the intermediate rents and profits (A). But
where he mixes up real and personal estate in the same
clause, the question must be, whether he does not show
an intention that the same rule shall operate on l»oth.
Here the property was partly real, partly personal, and



Rule stated
by Lord
Eldon.



(a) This case was dissented from in Re Holford, Holford v. Holford,
[1894] 3 Ch. 30, but on another point.

(h) See also Earl of Bective v. Hodyson (1864), 10 H. L. Cas. 6.J6.



Chap, V. — Intermediate Incomk of Conditional Gifts. '.V2'>

partly of such a descriptiou that the testator does not Art. 61.
seem to have known whether it was real or personal. He p.^^.^^ ^j
does not, hv his will, create any trust, hut makes a le^ial C^) and (3).
devise and hequest ot" the whole to<iether : then, is not the
weiiiht of authority in favour of the jtroposition, that
when real and personal estate are oiven in this way, the
intermediate prorits of both must go too-i>ther 'f 1 think
it is.'' See also 7iV Biirton, Bunks v. Hi^avcn, [1^92]
2 ( "h. ■>.

In Re Ihtmhle, Williams v. Munrll (l.S^3), 23 Cli. D. Devise of
360, Peakson, J., carried the rule further, and held that l^^l^^ hequest

the intermediate rents, as well as the intermediate income of personul



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