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That is precisely the case here; the original gift purports to be to the nieces absolutely, when and if they attain twenty-one; and then follows a provision that in case of the death of either, leaving children, (a contingency which, as it must be determined within the period of lives in being, is not too remote), her legacy shall go to her children.
It is said, however, that the testator's intention was different; that he meant to bequeath the 2000l. to his nieces absolutely at twenty-one, and in case of their death under that age, then to their children, should they leave any. But to that the answer is, that he has not said so: the will, as it stands, is complete and intelligible, and the proposed insertion of the words, " in case of their death under twenty-one,” would in truth impose a condition on the gift neither to be found in the instrument nor required by the sense. In all the instances in which the expression“ in case of death” has been held to import substitution and not limitation, the death referred to is that of the legatee either in the lifetime of the testator or of a preceding tenant for life; but here the death alleged to be intended is that of the legatee after the testator, and before she had acquired any vested interest. None of the authorities cited touch the present question ; for it is not disputed that, generally speaking, where a bequest is made to A. absolutely, and in case of his death to B., or to A. for life, with remainder to C. and in case of C.'s death to B., the event on which B.'s substitutional legacy is to accrue is the death of A. in the lifetime of the testator in the one case, and of C. in the death of the tenant for life in the other. Even upon this point, the decisions have been by no means uniform: Nowlan v. Nelligan (a) and
Douglas (o) i Bro. C. C. 489.; and see Billings v. Sandom, ib. 393.
Douglas v. Chalmer (a), where the words “ in case of death,” were held to refer to the death of the legatee at any time, shew that there is no positive rule, and that the whole instrument must be closely looked to in order to ascertain the probable intent. Now here in the residuary clause, where the testator did contemplate the contingency of death under twenty-one, he has taken special care to express it; and the argument therefore to be drawn from that clause, instead of being favourable to the appellant, makes strongly the other way. Galland v. Leonard (6) was a case under very peculiar circumstances, and was determined upon the intention, as it was to be collected from a careful consideration of all the provisions of the will.
The LORD CHANCELLOR, after reading the two passages in the will already stated, continued as follows:
I do not think that the structure of the residuary clause throws any material light upon the other. It is true, that the testator there shews he can describe the contingency of a dying under age in apt terms, when he is minded so to do; and hence an inference is drawn in favour of the construction given by the Master of the Rolls to the first clause. But it is also true, that the other part of the residuary clause gives a most accurate description of a life interest, and a remainder limited upon the determination of such interest; from whence it may be argued, that had he intended to restrict his nieces to a life interest in their legacies, he would not have left his intention doubtful: and although the construction put on the first clause does not suppose the gift of a life interest, but an absolute gift defeasible on the death of the legatee
leaving (a) 2 Ves. jun, 501.
(6) 1 Swan. 161.
leaving children living, yet it may fairly enough be said, that the reversionary interest of those children would have been otherwise provided for by the testator, who framed the residuary clause, bad he meant them to take in succession after their parents. We may, therefore, dismiss the residuary clause, as not making more for the one side of the argument than for the other.
I have considered this bequest with great care, and as the conclusion to which I have come differs from that of his Honor the Master of the Rolls, I shall state the grounds upon which I have formed my opinion; premising that I should feel much more distrust of that opinion, were I not entirely convinced that it is in accordance with the whole current of decisions; that, with perhaps a single exception, it is not contradicted by any authority; and, that, upon a full and deliberate view of all the cases, I am driven either to reverse the judgment of the Court below, or to affirm it and thereby over-rule most of the cases in substance, and some of them in terms.
Questions of this kind rest more upon precedent than principle. The Courts have adopted certain rules of construction, and have given a certain sense to particular expressions. There can be no question that a bequest to any person, and in case of his death to another, is an absolute gift to the first legatee if he survives the testator: and this, whatever be the form of expression, as " if he die," " should he happen to die," " in case death should happen to hiin," and so forth. The event here contemplated being so inevitable that it cannot be deemed a contingency, the Courts have held that something else must be intended than merely to provide for the case of the legatee dying at some time or other: and have said, that they will rather suppose the 1833.
testator to have contemplated and provided for the case of the legatee dying in his own lifetime; and so have read those words as if they had been, “ in case of his death during the testator's lifetime," in which event alone they have allowed the bequest over to take effect. The inconsistency of treating as a contingency the event of all others the most certain is not the only consideration which has swayed the Courts in seeking for qualifications to restrict the generality of such clauses. The leaning in favour of vesting, and against a constraction which would postpone the absolute enjoyment, and, indeed, keep in doubt and suspense the nature of the interest bestowed, has here, as in other branches of the law, operated powerfully in the same direction. To cite the instances in which the fundamental position to which I have referred has been laid down, or recognised and acted upon, would be to go through almost all the cases upon such bequests, from the case of Lowfield v. Stoneham, in Strange (a), downwards. But there is a series of decisions by Sir W. Grant, in which he constantly adhered to the doctrine, commented upon the other cases, and reconciled some that were apparently, and but apparently, at variance with it, which may be consulted with great advantage as bringing the whole matter within a convenient compass. I allude to Turner v. Moor (6), Cambridge v. Rous (c), Webster v. Hale (d), Ommaney v. Bevan (e); and more particularly to the second of these, Cambridge v. Rous. That was a bequest to two sisters, and each gift was coupled with the proviso, that in case of the death of one, the legacy should devolve to the survivor. Both were held clearly to vest absolutely on the legatees respectively surviving
the testator. But I cite this case as much for the powerful view which Sir William Grant takes, in his luminous judgment, of the other cases, as for the decision which he there pronounces. That no difference whatever is made by the circumstance of the legatees over being the children of the first taker is equally beyond dispute. Indeed, this was the case in Turner v. Moor, and in several other recent cases, particularly in Slade v. Milner (a), decided by the present Master of the Rolls.
But although the Courts have resorted to the lifetime of the testator, in the absence of any other period, by reference to which the generality may be restricted, this construction has always been adopted with some reluctance, founded as it is upon a supposition which, if not violent, is yet somewhat strong, inasmuch as the maker of a will does not naturally provide for the event of his surviving his legatees, the selected objects of his posthumous arrangements. Such a construction has, accordingly, been termed “ unnatural” by one Chancellor, and another, Lord Hardwicke, has traced the origin of the term “ lapse,” to the supposition that the possibility of the legatee dying in his lifetime escaped the observation of the testator.(6)
If there is a bequest to one for life, and after his decease to A., and in case of A.'s death to his child or children, or to B., the contingency is held referable to the lifetime of A., the first legatee, and the bequest over only takes effect in case A. dies during the continuance of the life estate; he takes absolutely if he survives the tenant for life. This was precisely the case in Hervey v. Maclaughlin in the Exchequer (c), and in Galland v.
Leonard (a) 4 Mad. 144.
(c) i Price, 264. (6) Ulrich v. Litchfield, 2 Atk.