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RENT,

grant of, .simpliciter carries the whole of the testator's interest in
the land, 131, 136, 199.
(litter where the gift is of rent under a particular
lease to a reversion, 126.
but in a deeil requires words of limitation, 199.
a reversion expectmt on a lease canies tlie inter-
mediate, 126.

RENTCHARGE,

devise of e.xisting, pii8.ses the whole estate of testator theivin
without wonls of limitiition, 200.
a new, jiavable out of testator's lands willioul words
of limitation /iriuul fdri, mdv pas.ses a life
esUile, 201.
iilitir where contrary intention, 20-l-(^ s.y/.

RENTS A.M) I'ROKITS,

cliarge of deblK or j»ortions on, is a charge on the proper! v itself

enforceable by sjile or morlg:ige, 133.
gift of, ciirricK the land it-elf, 131, 13*!, 139.

unles.'i rebull<'d by couli-xl, 139.
rents under existing lejtKf, a grant of, does not paxs the reMTsion,

130.
" IJKI'UESENTATIVES,' 395.

2 I' 2 ( 37 1



Indkx.

REPUGNANT CLAUSES AND CONDITIONS, 5;J W sw/., 175 w

first in case of deeds, iiiul last in case of wills, preferred, 53.
may iioverthcless take eflVct it' the original gift lapses, 176, 177.
void, \\ Ir'u, 17.5 it .svvy.

Scf CONDITION.S.

RESIDUARY GIFT

comprises, primd facia, all jtroperty not otherwise ett'cctually
disposed of L'Xco])t .i ]a]isi'd shart' of the residue it.self.

1.51, 154, 158^'^ itcq.
<Ji7('r where coutiarv iulenlion, 153.

projicrty sj)i.'cilicully luulispo.sed of by uiislakL' is im e\( r])-
tioii to the rule, 154.
general words added to a sped tic devise may carry the residuary

realty, 157 et seq.
gift 111 income of residue, does not mean actual incouu' i;f invested

j)roperty, 191 d seq.
lapsecf ap])ointments under a Ljeheial ])(iwer tall into residuary
gift, 154 et seq.
but revoked share of residue does not tall into residue, 158.
two or more residuary clauses, eflect of, 160.

"RESIDUARY LEGATEE," ;W5.

RESTRAINT ON ANTICIPATION,

effect of, on covenants to settle, 369, 371.

REVERSION,

grant of, carries the rents reserved by the lease, 126.

not implied from grant of rent reserved by lea.se, ib.

"RIGHT HEIRS," 395.

RIVER OR ROAD OR STREET,

-soil of ad 'inediam Jilum pa.sses under grant of adjacent lauds, 126.
but presumption is rebuttable, 127.



s.

SALE AND SUBSEQUENT REPURCHASE
by a testator of specific de\i.se or beij^uest, 122.

"SEASHORE," 394.

"SECURITIES," 396.



Inpkx.

SELECTION,
power of —

no right of, where specific legacy may equally relate to two
things, 51.
itlittr where leg-acy of one of several things, 40, 51.
order of choice in such cases, ;7).
.Sft Power (2).

SEPARATE USE. Sec Covenants to Settle ; E.xecutory
Settlements.

SETTLE, DIRECTIONS TO,

do not prevent leg;vcy lapsing when- the direction is merely to

settle the share of tht hyattc, 2!)3, 296 et .«(/.

unless on true interpretation of will, a share of the estate

as distinguished from the legatee's share was to be

settled, ib.

if all the future interest fail the original gift remains absolute,

.S't'e Executory Settlements. 178, 293, 296.

"SHARES," 396.

SHELLEY'S CASE, RULE IN, 203, 210, 212 ct seq.

applies to particular class of heirs as well as to heirs general, 212.
" children " sometimes read as "heirs of the body" so as to bring

rule into force, 216.
contrary intention immaterial, 213, 214.

unle.s.s donor explains that by heirs he means persmio"
d'signatw, 214.
executory settlemenLs, in, the court will exclude the rule where
the intention is clear, 352, 356.
use in favour of heir, rule does not apply to, 216.
fact, it is a tjuestion of, in each case whether the word "heirs"
wa-s inten<led to designate; a i)articular person or clii-ss of
persons or to embrace the whole Hue of .successors, 210 </

8cq.
in latter ca.se rule not excluded Ijy express direction that
ancestor is to take life estate only, 213, 214 d sei/.
gift to a grantor's own right heirs vests the fee in hiiuself, 202.

Ami Hit ExBCL'ToHY SETTLEMENTS; LIMITATION, WoHKS OK (2).

"heir" used in singular in a dce<l jinmii fnnr excludes the rule,

211,213.
gift U» "heir an<] tlu- licirs of thai licir" makes no dilfcr-

ence, Hi.
ulUtr in a will, 211.

but in lliat vnnv gift t<i lieir> of iliai luii will cMliiilf
th.- ml.-, 211.
*'hcirB" where won! used to signify tin- wliolc line of succesHor.s,
the rule appiii-M nolwilhstanding express direction that
anct^tor Hhall take a lift- fHlat*- only, 212, 213 rt hhj.
utie of word in plural diM-s not ne< csHjirily exclude itH
intt^Tpretiition iw pmumtr ilejtitfnat(i\ 213 il hiij.

I 39 1



Tni>kx.

SHELLEY'S CASE, RULE IN—coutivued.

ina])i)li.a1ile wlieiv gift to anci'stor legal and gift to lit-irs
e(|ui table, ov rice jjerst'), 2Ui.
or wlu'u limitation to heir is liy way of executorv limita-
tion, 216.
particular estate is a lease for years deterniinalile
on death, 21().
"issue" in wills e(iuivalent to "heirs of hody," 212, 21G.

alifer where words of distribution, 21f).
leading modern case on, 215 ct ^v/y.

life estate, express gift of, to ancestor will not exclude rule,

214.
person<r dedgnufw, rule inaj)])licab]c where "lieirs" used to
denote, 210, 215 vt snj.
a question of fact in each case, -210 ct tseq.
cases -where word "heir" or "heirs" held to have been used

to indicate pirxonfr (h'sninolc^ 214 ef seq.
"heir" in singular number, 211, 213.
"heirs" in plural, 213.
personal estate, rule applies to, 218.
"right heirs" of grantor, a limitation to, vests the fee in the

grantor himself, 202.
D'usts, application of rule to executed trusts, 215.

executory trusts, 215, 234 et seq.
And see Executory Trusts.

SHIFTING CLAUSES. Sec Gifts Ovkr.

SOVEREIGN,

grants to, of land without words of limitation pass the fee
simple, 197, 201.

SPECIFIC LEGACY

eciually applicable to two things fails for uncertainty, 46.
aliter where legacy is general, ib., 51.

SPECULATE,

the court cannot, as to probable as distinguished from expressed
intention, 32, 64.
unless reading the whole will there is a necessary imi)lica-
tion of a contrary' intention, 33.

"SPINSTER AND INTESTATE," 396.

STIRPES. See Capita, Per.

STREET,

soil of, ad mediam viam pa.sses under a grant of a house in a, 127.

STRIKE OUT,

the court will sometimes strike out words where intention is
plain, 10, 31 et seq.

[40]



Index.

SUBSTITUTED LEGACIES, 193.

SUBSTITUTIONAL GIFTS, 3H-.

alternative tjift not always sulistitution.il, 310.

is .substitutional when the share <;iven to issue was by prior
clause given to the parent, 310, 311 d .^eq.
(iripnal when tliere is no such ]>rior gift, ib.
illustrations of original and substitutional alternative gifts,

312
gifts to parents or issue not necessarily alternative, but may
hi successive, 313.
in real estate an apparently alternative gift may lie
construed as an absolute gift to first donee, e.g., to A.
or his heirs, 314.
important differences between substitutional and original
alternative gifts, ih.
es-sential to validity of substitutional gift that substi-
tuted donee should survive the jiersou for whom he
is substituted, 310, 314.
aliter where gift is original, Hk

original alternative gift to issue does not fail by death
of parent before testator, 311, 315.
even if dead at date of will, 317.

substitutional Ljift mav do, if parent one of a
class, 311, 316.
apparently alternative gifts may, on the wliole will, be really
successive, 313.
»;.5r.,gift to .sons at twenty-one with a imiviso tliat the share
of any son dying without issue shall go to other sons may
in different wills be substitutional or successive, acconl-
ing to whether dying without i.ssue means before the
]x-riod of distribution or at anv time, ih.
contlitions annexed to gift to ))arent do not priind facie attach to
alternative i,'ifl to issue, whether original or substitu-
tional, 311, 3*18.
'.J/., death before period of distribution, 318.
gift mav Ini ulisolute or sidistilntinnal according as it is of real

oi- personal estate, 314.
how cla.ss of is.sue a.scertained in alternative gifts to issue, 311,

320.
alternative gifts to two chi-sses as joint tenants, 311, 320.
fiub.stitutional gift whirli fails for want of issue, may leave
gift to pan-nt absuluti-, unli-^s it has lapsed, 288.
but that can never happen witli oiit'liial alti rnative
gift. 310.

Sr Aia-KRNATIVE (iltTS.

sri'PLV,

(••lurt will Konii'tinicrt, words, where intention is dear, 10, 31 ft

.SUHHOUNI)IN(} CIRCUMSTANCES,

an>'i«-nt docuim-ntH, in conf«trui-tion of, evidence of, admisMil)h',

!), 27 ri »eii.

\ n 1



SURPxOUNDTXG CIRCUMSTANCES— ro/(////HrJ.

evidence of, aiimissible in con.stiuing l)utli deeds ami wills, H,

12—19, 33, 37-42.
to explain expressions, though not to alter or add to
them, 33.
illustrations, 34 et seq.
identify other documents referred to, 38.
]>rove valuable consideration, 38.
sliow tesUitor's knowledge of relevant facts, 16, 17.
state of testator's property or lamily, 15.
that testator habitually misnamed i^er-sons, 17
real date of instrument, 37. et seq.

whether an alteration was made before or after

execution, 38.
that the instrument was only ])art of one

complete transaction, 38.
special custom in relation to similar trans-
acti(ms in a trade or ])lace, 39.
only relevant if the testator or ^'rantor was aware of them, 13.

erroneous recitals of facts, 14.
purpose for which jiroperty is granted may import grant of all

easements necessary for that purpose, 124.
state of family, Ifi.

A7id see Wild's Case.
state of pro])erty, 15.

"SURVIVE HER COVERTURE," 396.

SURVIVORS, GIFTS TO, 301 et seq.

deeds, same jjrinciples apjdicable to, as to wills, 306.
"others" sometimes construed to mean, 301.

where there is an ultimate gift over to third parties to
take efi'ect onlv in the event of all the donees dying,

301, 304.

aliter where all the shares are settled, in which case if

there is an ultimate gift over, "survivors" means

those who survive actually in person or figuratively

in issue, 302, 305 et seq.

strictly construed, prim d facie, 301, 302.

mere fact that all the shares are settled will not alter the
strict construction of the word unless there is an
ultimate gift over, 305.
strict construction may be modified by context, 306.
substitutional gift to, where none survive, original gift remains

good, 255, 295.
survivorship iisually refers to jieriod of distribution, 302, 306.
exceptions, 307.

"SURVIVORSHIP, BENEFIT OF," 385.



[ 42 ]



Index.



T.

TAIL. S(€ Estate Tail ; Shelley's Case, Rule in ; Execttory
Settlements ; Limitation, Words of.

TECHNICAL WORDS, 1 et seq., 8, 19.

evidence of meaning of, ailnii>;sible, 8, 19.

TELEGRAPHIC CODE,
contract by, 7.

TENANCY IN CO.MMON. See Joint Tenancy.

Tl.ME

from which ileeds and wills >peak. Ste Property.

TRADE CUSTOMS,

words in trade contracts, 8.
See Customs.

TRUST

in a will, a, which does nut exhaust the jtroperty may be con-
strued as a gift to a trustee of the balance, 175.
See Estates of Trustees ; Precatory Words ;
Absolute Interest.

TRUST ESTATES. Ste Estates of Trustees.



u.

UNCERTAINTY,

giftf voirl for, if impossible to idtiitifv property or donee,

46, 58 < ( seq.
distinction between specific legacies and general legacies,

t/.., 51.
no application in case of charitable gift^;, 58, 60.

tiliier where gift to charitable ;nid non-charilalih-
objects, Gl.

"un.married, :w7.
usac;e.

evidence of, when adiiiiK>.ibl4', 27 — '.U.

USE,

excluHivc right to, may carry the ownership in tin- propi-rtv,

]'M)'ts,,i.

{ -la 1



Index.
V.



VERTir,

articles of, 397.



VESTED,

(loHiiition of —

indefeasibly, 252

legal reinaiiidor.s in I'eal estate, in case of, word lias
a somewhat ilitlereiit meaning, 253.
subject to be dive^ited, 252.
important distinction between gifts vested subject to be divested

and gifts which are contingent, 255.
must not be confused with interests limited by way of succes-
sion, 256 et seq.

VESTING, 251 et seq.

(1) (ieneral 'principles as to, 251 et seq.

all gifts either indefeasibly vested, contingent, or vested
subject to be divested in specified contingencies,

251.
definitions of " vested," " contingent," etc., 252.
great importance of ascertaining under which class
a gift falls, 252—257.
a condition subseijuent divesting a gift is (qua the
gift over) a condition precedent, and makes that
gift contingent, 255.
startling results of divesting conditions compared
with contingent ones, 257.

(2) I If personal estate, 258 et seq.

ambiguity as to donor's reasons for postponing enjoyment,

certain circumstances may determine the question in

favour of immediate vesting, 258.

distinction between gift and time of payment, 2.59,

gift over on a double contingency, 2.59, 268. 265.

postponed for a term of years, 2G5.
intermediate interest given to donee, 259, 266.
but such gift must be imperative, ib.
deeds, rule seems applicable to, as well as to wills,

267.
fixed sum given for maintenance insutticient, 266.
given for common maintenance of a class, insutti-
cient, ih.
residuary nature of the be([uest, 259, 268.
severance of gift from general estate upon trust for

donee, 259, 267.
survivors, gift to, of shares of those who die under a
given age, 259, 268.
^ ambiguous phrases as to, 259.

[44 ]



Index.

YESTISG— continued.

{2) Of personal estate — coutinueiL

class, gifts to such of a, as shall attain a given age or be
alive at a given date, are dearly contingent, 2(53.
vesting of gifts to a, in remainder, H^6.
And *•(■«■ Class.
contingency annexed to gift, not extended, /Tn/uJ /rtcit', to

the gift over, 2HU, 270.
contingent gifts, examples of, 264, 265.

gift apparently contingent on one event, may be con-
strued merely as a vested reniaimler to take effect
on the determination of any means of preceding
interest, 260, 270.
to A. "at" "or upon attaining" or "when" or
"as" or "from and after attaining," 21,

264.
"such of a class" as shall live to a certain
age or period, 265.
distribution postponed until youngest memiier of class
attains a given age, each member takes vested
interest on attaining that age, 259, 269.
may sometimes take vesti-d interest even earlier, 269.
expre.^s direction as to, 258, 260.
sometimes construed as —

"vest in posse.ssion," as di.stinguished from vest in

interest, 261.
indefeasibly vested, 262.
general principles which govern the vesting of future
interests, 258.
intention the governing factor, ih. 260.

wluMv language ambiguous as to reasons fur
postponement, 259, 265 it seq., see
supra.
no expres.s intention, gift vests immediately
if it is postjioned for bt-nefit of estate
or to let in a ]>revious life intere.st,
258, 261.
aliter if pf>stponement for reasoius per-
sonal to donee, 259, 2(54.
(3) (ri/t'< of nal >nfnt'.

uiiibignity as to, in ca.ses of, there is strong presumption of
immediate vesting, 271, 273.
even wlu-n- there in a gift over, tin- ;,Mft will In- vesteil,

.subjfct to be divested, 271, 274.
w> alwi where property is given to A. until 1{. attains a
given age, li. t.ikes vested intiTisI
subject to be di\i>lid, 271.
gift over on thf bappcuing of a double
contiii^^ency, 276.
gift to M'veral for life in succession with ultimate
gift to A. if fn-ht tenant for life then dead, 276.
cliiKM, gift U) unrh (u atUiin a i;iven a^^c, or survive a given
|>cri<M|, '\H clearly contingent, 272.

I 15 ]



Index.

VESTI ^G—co7itinued.

(3) liiff" of real estate — eontinued.

(■lt';ir condition precedent to vesting', must liuvc cdect given

to it, ih.
to A. for life, witli rcinaiiuK'r to rliildicii of V>. if :iiiy

survive him, 27(i.
double continj^'ency, gift over on h;ij)])ening of, ih.

(4) liift.< iif leijacirs anil jiiirtlnn.t eliKrgeil on real rstate, 277 et ■■oij.

;uiil)ii,'uity as to, in cases of, theix- is a strong presunijition
against vesting until date fixed for ]iaynient, 277.
deeds, rule apjdies to as well as to wills, 278.
reasons for this rule, 277.

tenant for life, where ])ayinent only to take place at
death of, shares vest at twenty-one or marriage, even
although tenant for life tli'-n living, 271).
where no date fixed, ]ii'esuni])tion is that shares ve.st
at twenty-one in case of sons, and twenty-one or
marriage in case of daughters, 277, 279.
clear expressions as to earlier vesting must have elfect
given to them, 277, 278.

(5) Giftx of legacies and jjortionn charged on mixed, real, and

personal estate, 280.
personal estate apjdied first so far as it will extend, and the

([uestion of vesting is governed by rules as to vesting ot

personal estate, ih.
real estate only taken when ])ersonalty exhausted, and

(questions of vesting are governed by rules as to vesting

of gifts charged on real estate, ih.
And sec Intermediate Income.



w.

" WAGES," 396.

WASTING PROPEKTY

forming part of settled icsidue, 191 et seq.

WAY

of necessity, 129.
And see Highway.

"WHAT IS LEFT," .397.

WIFE,

does not include divorced wife, 397.

nor woman who has knowingly contracted a bigamous

marriage, ib.
whether it refers to wife at date of will or at date of
death, 66 et see/., 71.
See Covenants to Settle.

[ 46 ]



Tyi>Kx.

WILD'S CASE,

child en ventre, taken to be non-existent for purposes of, 224.
date of will to be considered, 223 ''t seq.
exiimples of contrary intention, 224.
inappliaible to personal estate, 22:5.

power of app<^)intment among children will not e.Kclude opera-
tion of, 224.
rule in, 222 ft seq.

WILL,

conflicting clauses, last preferred to Hrst, o3.
construed in relation to property comprised in it as if made
immediately before tesUitor's death, 116 et .^cq.
aliter, with regjird to anything else beside property, 117.
And see Propekty.
construction preferred which is most advantageous towards
Ifgatee, 47.
but there must be a general intention of bounty, 51.

"WITHOUT HAVING BEEN MARRIKl),' 397.

WORDS. .sVf Gloss.\.ry, 385—398.

add, the court will sometimes where an omission is clear, 9, 31
ancient documents, in, 9, 27 ef seq. et seq.

And see Ancient Documents.
art (jf, 3.

context must Ije con.sidered in construing, 9, lit et seq., and

31 et seq.
word used in one sense in one part of a document immii
facie used in .s<ime sense throughout, 2, 7, 90.
customark' sense may lie used in, 8, 19 et seq.
deeds, rules as to, equally ap])]icable to wills, 4.
dictionary may be use»l to e.xplain ordinary ^neaniug of, 2, 7.
ejujidem, yeneri^, rule as to, 9, 23 (( seq.
evidence of meaning of, 7, 36 et xitj.
exj>ert evidence of meaning of teclinical words, 7.
fact« inconsistent with the use of the words in their ordinary

signification, 8, 20 et seif.
habitual misu.>ie of by te.stator, 9, 20.
inapplicable if interpreted stricllv, 8, 12.
legal, 1, 5.

foreign legal terms, 8.
(jUiL'^i legal, 5.

where owing to a rule of law a word has a dilferent signiti-
aition to it.s onlinary one, C.
uii.sum; of, 8, 20.

necx'>»»'ury implication govenm and displaces strict construe t ion,
meaning of neies,siiry im])lic;ilinii, ,{3. 31 >tsiq,

oljHCure and archaic, 9, 27 •! srq.
onliimry meaning of, in the jninm fueie interpretation, I

et j<»vy.

liruMUiiifd to In- iiHed with their ordinary signilication, 1 il teq.
rule eijually appii<ul)le t4( deed.H and will% 4.
circuujHtanceh which relxit thii« iirenumptitiii, 8 rl seq.

[ tV 1



I x 1 > i: X .

WORDS— continued.
scientific, 1 ef n&j.
strike out, the court \\ ill sdincliuu's, it intciitinii is t-lcar, lo, 31

el .s-r,/.

snp])ly, the court will souietimes, it intention is clear, 10, 31
surroumliug circumstances — i-f si'ii.

may ex])lain meaning of, 2, 12 — 17, 31 el seq.

but cannot alter or add to the words used, 33.

must he taken into account, ;7(.
technical, 14 d .sy(/.

evidence as to mcauing of, 7.



Y.

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