should die, &c. bequeathed his personal estate to trustees for his daughter and in case all for life, and after her decease to and among all and every the child or children of his daughter and the lawful issue of a deceased child, in such proportions as his daughter should appoint, and in default *of appointment, then the same to go to and be equally divided between them, share and share alike, and if there should be but one child, then to such only child; the portion or portions of such of them as should be a son or sons, to be paid at his or their respective ages of twenty-one, and the portion or portions of such of them as should be a daughter or daughters to be paid at her or their respective ages of twenty-one or days of marriage; but, in case there should be no such issue of the body of his daughter, or ALL such issue should die without issue before his or their respective portions should become payable as aforesaid, then £1000 for his sister M. and her family, and £1500 for his niece A. and her family; and in case there should be no issue of either, for his nephew T., whom he also made his re- Cross-bequest siduary legatee. The will contained a proviso, authorizing not implied. the trustees to apply the interest of the children's portions for their maintenance until they became payable. One of the children having survived her mother, and died under twenty-one and unmarried, her share was claimed by the survivors and the representatives of those who had attained their majority and died, principally on the authority of Scott v. Bargeman. (h) Sir W. Grant, though he thought that case to be right in its result, held that the bequests vested immediately, and that the contingency had not happened on which they were to be divested; consequently the share of the deceased child belonged to her representative. Gift to two, and, if neither living at a should be given period, [So, in Baxter v. Losh, (i) where residue was bequeathed to be equally divided between A and B, their executors, administrators and assigns absolutely forever; but in case it should happen that the said A and B should neither of them be living at a particular period, then over; A died in the lifetime of the testatrix, and B survived the period specified, and it was contended on behalf of B, that there was an implied gift to him of the share of A; but Sir J. Romilly, M. R., held that there 15 Id. 318; Mair v. Quilter, 2 Y. & C. C. [(i) 14 Beav. 612. In Currie v. Gould, over. 4 Beav. 117, the precise ground of the decision does not appear, but the gift seems clearly to have been a joint tenancy to the children. was no such implied gift, and that the event not having happened on which the gift over was to take effect, the moiety of A had lapsed. Sir W. Grant distinguished Scott v. Bargeman and Mackell v. Distinction where prior gift is contingent. Winter on the ground that the primary bequests in those cases were contingent, and that nothing therefore was divested by admitting the implication. (k) This distinction is supported *by subsequent decision in cases where the contingent nature of the primary gifts was unquestionable. Thus in In re Clark's Trusts, (1) where a testator gave the residue of his personalty and the money to arise by sale of his real estate in trust in equal shares for A, B, C and D for life, and after their respective deaths for their children respectively as they should appoint, and in default of appointment for their respective children, with cross-limitations among the children of each parent inter se in the event of any dying under twenty-one; "but in case the said A, B, C and D should all happen to die without leaving any child, or leaving such, if such children should all happen to die under twenty-one," then over. A died un married: each of the others had children or a child who attained twenty-one; and the question was whether a cross-limitation of the share of A, the remainder in which had vested in no one, was to be implied in favor of the other families. Sir W. P. Wood, V. C., held that it was; (m) but that none of the other shares, which had all vested, would be divested, except in the event expressly provided for of all four of the named persons dying without leaving a child. Again in In re Ridge's Trusts, (n) where a testator bequeathed residue in trust for his daughters A, B and C and any other daughters he might afterwards have, equally for life; and if all, any or either of them should die leaving issue, then to pay an equal part equally amongst the issue of each daughter that should die leaving issue; and if only one daughter should die leaving issue, then to pay the whole equally amongst the issue of such one daughter; but if all such daughters should die without leaving issue, then over. The testator (k) 3 Mer. 342, 344. (1) 32 L. J., Ch. 525. The distinction was denied by Lord Manners in Beauman v. Stock, 2 Ba. & Be. 406, who there held that cross-limitations were to be implied, although the primary gift was vested; but this was before Skey v. Barnes, and has not been followed. (m) The limitations implied were for life and in remainder (subject to a power of appointment) following exactly the limitations of the original shares. See also In re Ridge's Trusts, post. (n) L. R., 7 Ch. 665.] left A, B and C his only daughters. A died leaving issue; then B died unmarried. It was held that a cross-limitation of the remainder in her share was to be implied in favor of the other two families.] Skey v. Barnes [and the subsequent cases] may, it is conceived, be considered to have fixed the rule of law on this important doctrine of testamentary construction. * CHAPTER XLIV. RULE THAT WORDS WHICH CREATE AN ESTATE TAIL IN REAL ESTATE CONFER THE ABSOLUTE INTEREST IN PERSONALTY. I. Rule considered in relation to various II. Bequests over after such Gifts. Words by which an Estate Tail may be III. Effect of Limitations in strict Settlecreated. ment upon Personal Property, &c. Words which tail in realty confer the absolute interest in personalty. I.-It has been established by a long series of cases, (a) that where personal estate (including of course terms of years of create an estate whatever duration) (b) is bequeathed in language which, if applied to real estate, would create an estate tail, it vests absolutely in the person who would be the immediate donee in tail, and consequently devolves at his death to his personal representative, (whether he leaves issue or not,) and not to his heir in tail; 1 [that being the only mode in which personalty can be (a) Roll. Rep. 356; Bunb. 301; 2 Ch. Rep. 14; 1 Lev. 290; 2 Vern. 324; 1 P. W. 290, Pre. Ch. 421; 8 Vin. Ab. 451, pl. 25, 26; 3 B. P. C. Toml. 99, 204, 277; 7 Id. 453, [1 Mad. 488]; 1 Ves. 133, 154; 2 B. C. C. 33, 127; 11 Ves. 257; 2 Ves. & B. 63; 1 Mer. 20, 271; 19 Ves. 73, 170, 574; 3 Mer. 176; 4 Mad. 360; 8 Sim. 22; [3 Drew. 668, 6 H. L. Cas. 1013. (b) But not including a personal annuity created by will de novo and given to A and the heirs of his body: this gives A a conditional fee, and unless he performs the condition (i. e., has issue) the annuity ceases on his death, Turner v. Turner, Amb. 776, 1 B. C. C. 316.] 1. To the effect that words of limitation, which would create an estate tail in real property, carry personal property absolutely, see 2 Rop. on Leg. 393; Dar den v. Burns, 6 Ala. 365; McGraw v. dealt with in order to make the interest in it analogous to an estate tail.] (c) Rule applies to implication; This rule is not confined, as has been sometimes affirmed, (d) to cases in which the words, if used in reference to realty, would create an express estate tail; for it applies also to those in estates tail by which an estate tail would arise by implication, except in the particular case in which words expressive of a failure of issue receive a different construction in reference to real and personal estate. (e) Thus, where, by a will, which is regulated by the old law, personalty is bequeathed to A or to A and his heirs, and, if he shall die without issue, to B, (which would clearly make A tenant in tail of real estate,) he will take the absolute interest. (ƒ) Horne v. Lyeth, 4 Harr. & J. 431; Davidge v. Chaney, 4 Harr. & McH. 393; Deane v. Hansford, 9 Leigh 253. Limitations over in chattels have been supported like limitations of real property very generally, Holmes v. Williams, 1 Root 332; Pinckney v. Pinckney, 1 Bradf. 269; Hannan v. Osborne, 4 Paige 336; Lawrence v. Hebbard, 7 Paige 76; Kane v. Gott, 24 Wend. 641; Armstrong v. Kent, 1 Zab. 509, 524; Kent v. Armstrong, 2 Halst. Ch. 637; Ackerman v. Vreeland, 1 McCart. 23; Moffat v. Strong, 10 Johns. 16; Still v. Spear, 45 Penna. St. 168, S. C., 3 Grant Cas. 306; Clark v. Baker, 3 Serg. & R. 477; Deihl v. King, 6 Id. 32; Manigault v. Deas, Bailey Eq. 298; Henry v. Archer, Id. 535; Keith v. Perry, 1 Desaus. 353; Royall v. Eppes, 2 Munf. 479; Pleasants v. Pleasants, 2 Call 319; Cudworth v. Hall, 3 Desaus. 256; Robards v. Jones, 4 Ired. L. 53; Jones v. Sothoron, 10 Gill & J. 187. In many of the foregoing cases limitations of personal property over upon failure of issue of the first taker, have been held good as limited upon a definite failure of issue, where a like limitation of real property under the old rule would be construed to be upon an indefinite failure. As to this point, see further ch. XLI., supra. But in Nix v. Ray, 5 Rich. 423, where the bequest was to three daughters, "and the future heirs of their body," and if either died without "any lawful heirs of their body," her share should go to the survivor or survivors, it was held that the daughters took life estates only; see also Henry v. Means, 2 Hill (S. C.) 328; Henry v. Archer, Bailey Eq. 535; Bridges v. Wilkins, 3 Jones Eq. 342. But where a testator bequeathed $9000 to each of two granddaughters, and if either should die "under the age of 21 years unmarried, and without having any child or children," over to the survivor, it was held that upon the marriage of either legatee her legacy vested absolutely in her, Stevenson v. Schriver, 9 Gill & J. 324. Where a testator bequeathed certain slaves to A and B, in trust, that they should enjoy the produce of their own labor, it was held that this bequest was void, and that A and B, being residuary legatees, took the absolute property in the slaves, Bennehan v. Norwood, 5 Ired. Eq. 106. As to limitations by way of remainder or executory devise in chattels, see ch. XXV. and XXVI., supra. [(c) Per Wood, V. C., L. R., 2 Eq. 280.] (d) Atkinson v. Hutchinson, 3 P. W. 259; [Doe v. Lyde, 1 T. R. 596.] |