Legacy given in substitution subject to same incidents,

also added legacies.

Restriction on the rule.

the Court raises the presumption against the intention of a double gift, by reason that the sums and the motive are the same in both instruments, it will receive evidence that the testator actually intended the double gift he has expressed (a).

SECT. 4.-Of Substituted and Added Legacies.

As a general rule where one legacy is given as a mere substitution for another, the substituted gift is subject to the incidents of the original one, although it is not so expressed in the testamentary instrument (b).

So added legacies shall, generally speaking, be subject to the same conditions and incidents as those to which they are added (c).

But although this is the general rule, the Courts do not follow it where its effect would be to introduce such limitations as would convert a gift in its terms absolute into one of a life estate only, and speaking generally, it would seem there is no substantial authority for applying the rule to any case but the simple one where the alteration is intended to apply to the amount of the legacy only (d).

With regard to added legacies, if the testator directs that the legacies in the body of his Will shall be free of legacy duty, and at a later date adds a codicil giving pecuniary legacies simpliciter, without any provision as to payment of legacy duty, there would seem to be no presumption that if one of the legatees under the codicil happens to be a legatee under the Will his legacy under the codicil is to be paid free of legacy duty while the others are not (e).

(a) Hurst . Beach, (1819) 5 Madd. 351, 358.

(b) Williams (10th ed.) 1040; and see Re Boddington, (1884) 25 C. D. 685, 689, per Ld. Selborne.

(c) Williams (10th ed.) 1041.

(d) Re Boden, [1907] 1 Ch. 132, 149, per Fletcher Moulton, L.J.; ReJoseph, [1908] W. N. 159, C. A., reversing (1908) 1 Ch. 599.

(e) Ibid.

CHAPTER XXXIII.

OF THE FAILURE OF DEVISES AND BEQUESTS.

SECT. 1.-Of Lapse.

UNLESS the legatee survives the testator the legacy given Legatee to him is extinguished (a).

If a person has not been heard of for seven years there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption, but of evidence, and the onus is on the person who claims a right to the establishment of which that fact is essential (b).

The cases of Williamson v. Naylor (c), Philips v. Philips (d), and In re Sowerby's Trust (e), have established the rule that, if the Court finds, upon the construction of the Will, that the testator clearly intended not to give a mere bounty to the legatee, but to discharge what he regarded as a moral obligation, whether it were legally binding or not, and if that obligation still exists at the testator's death, there is no necessary failure of the testator's object merely because the legatee dies in his lifetime; and therefore death in such a case does not cause a lapse (ƒ).

must survive testator.

Except where tended in dislegacy incharge of a moral obligation and not mere bounty.

"and his executors,

tors and

Although the addition to the name of the legatee of the Addition of words "and his executors, administrators and assigns" will not prevent a lapse should the legatee die in the lifetime of administrathe testator, such words being considered words of limitation assigns only (g), yet where there is a bequest to A. "or his personal lapse, but the representatives," or to A. "or his heirs," the word "or" word "or"

(a) Williams (10th ed.) 955. (b) Re Phené's Trusts, (1869) L. R. 5 Ch. 139, 152; Re Rhodes, (1887) 36 C. D. 586; Re Benjamin, [1902] 1 Ch. 723; Re Aldersey, [1905] 2 Ch. 181; and see ante, p. 71.

30.

(c) (1838) 3 Y. & Coll. Ex. 208.
(d) (1844) 3 Hare, 281.
(e) (1856) 2 K. & J. 630.

(f) Stevens v. King, [1904] 2 Ch.

(g) See post, p. 550.

not prevent

may imply substitution.

Substitutionary gift to

issue, follow ing a class gift, to be

ent must be

generally speaking, implies a substitution so as to prevent a lapse (h).

The law was settled in the case of Christopherson v. Naylor (i) that where there is a gift to a class and then a substitutionary gift to issue of the share of any one of the class who should effectual par- die in the lifetime of the testator, no one can take under the living at date substitutionary gift who is not able to predicate that his parent might have been one of the original class, and, consequently, if the parent was dead at the date of the Will, and therefore by no possibility could have taken as one of the original class, his issue are not able to take under the substitutionary gift (k).

of Will.

Secus, where there is an

original sub

to the two

Where, however, there is an original substantive gift to two classes of legatees, first, to the children of a legatee for stantive gift life, living at the time of his decease; and, secondly, to the issue of such of them as shall be then dead leaving issue, the issue of a child who was dead at the date of the Will may be entitled to a share (1).

classes of legatees.

Gift not to be

A gift is never to be construed as contingent unless the construed context requires it: consequently, where there is a gift to contingent unless context children as should be living at the death of a tenant for life, requires it. but if any should then be dead leaving issue such issue should be entitled to their parent's share, the fact that the gift to the parent was contingent does not affect the gift of the issue, which is an independent gift, and issue of a child dying before the tenant for life would take a vested interest, although such issue should die before the tenant for life (m).

Rule as to

lapse applies to appointment under testamentary power.

The rule as to lapse in the event of the legatee dying in the lifetime of the testator is equally applicable to an appointment under a testamentary power (n).

(h) Williams (10th ed.) 959, and see ante, p. 245.

(i) (1816) 1 Mer. 320.

(k) Per Kay, J., in Re Webster's Estate, (1883) 23 C. D. 737, and see Re Wood, [1894] 3 Ch. 381, 387; Re Gorringe, [1906] 1 Ch. 319; [1906] 2 Ch. 341; [1907] A. C. 225; Re Cope, [1908] 2 Ch. 1.

(1) Williams (10th ed.) 960, referring to Tytherleigh v. Harbin, (1835) 6 Sim. 329 and other cases.

(m) Martin v. Holgate, (1866) L. R. 1 H. L. 175; Re Woolley, [1903] 2 Ch. 206.

(n) Oke v. Heath, (1748) 1 Ves. Sen 135.

case of joint tenants.

Where a legacy is given to two persons as joint tenants, No lapse in and one of the legatees dies in the lifetime of the testator, the entire legacy goes to the survivor, and consequently there is no lapse.

Moreover, there is no lapse by the death of a legatee in the lifetime of the testator where the Will contains an express limitation over to survivors (o). Whether accruing as well as original shares pass under a survivorship clause in a Will depends on whether the testator intended the disposition as of an aggregate fund or of separate legacies (p).

If the legatees take as tenants in common, and one of the legatees dies in the lifetime of the testator, his share will lapse unless the legacy is given to them as a class gift, in which case those of the described class who survive the testator take the whole (q).

Primâ facie, a class gift is a gift to a class consisting of persons who are included and comprehended under some general description and bear a certain relation to the testator. But it may be none the less a class because some of the individuals of the class are named. For example, if a gift is made to all my nephews and nieces including A., or to C. and all other my nephews and nieces, or to four named daughters of the testator and all his afterborn daughters, or to the testator's niece A. and the child or children of his sister B. who should attain the age of twenty-one years equally to be divided among them as tenants in common, in all these cases there would be a class gift (r).

Effect of

over to surexpress gift

vivors.

Lapse in case common,

of tenants in

unless a class

gift.

What con

stitutes a

class gift.

class.

There may also be a composite class, such as, for instance, Composite children of A. and children of B. On the other hand, a gift to A. and all the children of B. is prima facie not a class gift (s). Another principle is that all the interests of members of All interests the class must vest in interest at the same time. For instance,

(0) Mackinnon r. Peach, (1838) 2 Kean, 555; Williams (10th ed.) 966.

(p) Worlidge v. Churchill, (1792) 3 Bro. C. C. 465; Williams (10th ed.) 966. As to the meaning of "survivor,” see Re Bowman, (1889) 41 C. D. 525, 531 ;

E.

King r. Frost, (1890) 15 App. Cas. 548;
Inderwick r. Tatchell, [1901]2 Ch. 738.
(9) See Williams (10th ed.) 963.
() Kingsbury r. Walter, [1901]
A. C. 187, 192.
(8) Ibid.

E E

must vest at same time.

Effect of rule against perpetuities in class gifts.

if there is a gift to A. for life and afterwards to B. and the children of C., the class must vest in interest at the death of the testator, although it is capable of enlargement by the birth of subsequent children of C. during the lifetime of the tenant for life.

On the other hand, a gift to A. for life and at his death to be equally divided between his surviving children and the testator's niece Rosamund, is not a class gift since only those children who survived the tenant for life would have taken, whereas Rosamund's interest would have become vested at the testator's death. But if the gift were to A. for life and at his death the property to be equally divided amongst his children and the testator's niece Rosamund, or such of them as shall survive the tenant for life, making them all vested interests at the same time, it would be a class gift (t).

If a fund is given in trust for a class, some of the members of which may by possibility attain vested interests in it after the period limited by the rule against perpetuities, the gift is void not only as regards them, but also as regards all the members of the class. The principle is that you cannot ascertain the share of any member of the class without taking into account the members born after the expiration of the legal period; the rights of all the members of the class would be affected by the consideration whether or not some of them were born within the legal period. But this reasoning does not apply where the question is not as to the amount of the share or the period when the class is to be ascertained, but only as to a mere restriction which is to apply to each share as and when it comes into existence (u).

For instance, it has been held that a proviso for settlement of shares must be construed as applicable to each share separately, and that although it would have been void for remoteness in the case of daughters born after the death of the testator, it was valid in the case of a daughter born in his lifetime, and that she was entitled to a life interest in the

(t) Kingsbury r. Walter, ubi. sup., (u) Re Game, [1907] 1 Ch. 276, 280. at p. 194.