majority. Surviving their mother and coming of age are the events constantly kept in view throughout this branch of the will, and both together. Surviving goes for nothing, unless the children live to attain twentyone, and vice versa. Caroline Lydia, the first legatee of the residue, takes nothing, if she either predeceases her mother, attaining twenty-one, or survives her, and dies under twenty-one; nay, in either case, she not only takes nothing under the will directly, but she is excluded from the benefit of the appointment, the power being confined to the other children at whatever time they die. Then, all the gifts to those other children are carefully confined to such as reach majority; and there seems nothing at all inconsistent with this frame of the residuary clause in supposing that the testatrix intended to prefer her daughter Louisa Mackinnon, if none of her grandchildren survived their mother and reached twentyone, those two conditions being throughout in her view, and never lost sight of except in one instance only, where she is not herself distributing the residue, but devolving the distribution of it upon another by creating a power. There seems, therefore, nothing inconsistent with the general intent in giving effect to this executory limitation, by treating it as a gift over upon the removal out of the way of the preceding interests, in whatever manner that removal is effected; whether by persons coming into existence, so as to make the interests vest, and their dying under twenty-one, so as again to devest their estates, or by their never coming into existence, and thus never taking the interests at all. } t་ J As it may be said that the authorities for the doctrine to which I am referring do not exactly touch a gift of this precise kind, it may be proper to examine those authorities somewhat more closely, in order to ascertain whether they differ from the present case in point of prin 1833. MACKINNON v. SEWELL. v. SEWELL, 1833. ciple, or only in the particular circumstances. The MACKINNON apparent diversity, to state it generally, is this, that in most, if not all the cases, the event which actually happened comprehended that for which the gift provided, as the greater includes the less, so that the one of necessity involved the other in substance and effect; whereas here there is no such necessary consequence. Thus, in a gift to A., if the child of which B. is enceinte does not reach twenty-one, the event guarded against of B.'s child reaching twenty-one never can happen if she is not enceinte; but in a gift to A., if B.'s child surviving her does not reach twenty-one, the event guarded against of B.'s child reaching twenty-one may happen though it dies before its mother. Accordingly it will be found that to reconcile the present case with the authorities, we must consider the event guarded against to be, not a child of Caroline reaching twenty-one, but a surviving child of Caroline reaching that age. And the whole frame of the clause which requires that the children should survive their mother, as well as attain majority, justifies the Court in adopting this qualification. All or almost all the cases upon which this doctrine is founded are referable to one consideration, which it is very material to keep in view. The construction which they authorize is never inconsistent with, far less contrary to the plain intention of the clause itself, but only aids or furthers that intention, by supplying a manifest omission. In other words, no real difference is made in the result, for the event contemplated has not happened, but something equivalent has taken place; that is, something which made it impossible that the result could be otherwise than that upon which the executory limitation was made to depend. Almost all the cases are those of double contingencies, the second being of a negative nature, nature, so that the first not happening amounts to the same thing as if both had happened. Thus a bequest over to A. in case the first takers, the unborn children of B., die before they reach twenty-one, read as a condition, is a bequest to A. if B. has children, and they do not live to twenty-one; and the first or affirmative contingency not happening, it follows of necessity that the second or negative must. If it is read as to its substance and import, and not resolved into its parts, the bequest is, in case no child of B. reaches majority, and of course none can if he have none. This is the simplest case, but the others are all similar in principle. Thus, a gift over in the event of the child in ventre sa mere dying under age is a gift if there be such a child born, and it does not reach majority. The child cannot reach majority if it never existed, which was the case of Jones v. Westcomb (a), and Statham v. Bell (b), or if it was still-born, as in Foster v. Cook. (c) Therefore, taking the condition to be, what it is in substance, that no child should reach twenty-one, even as a condition precedent, it has been strictly fulfilled. At any rate, no effect is given to the executory limitation, which is repugnant to the conclusion that would have followed from considering the matter in the light of a condition precedent. In like manner, when the event, upon the happening of which the executory limitation vests, is, that the testatrix should have "but one child," this must be considered as meaning "no more than one," unless there be something in the limitation that connects it with the existence of one at the least, in which case the condition becomes affirmative and not negative. Accordingly, in Murray v. Jones (d) it was held that such (a) 1 Eq. Ca. Abr. 245. (b) Coup, 40. (c) 3 Bro. C. C.347. a con 1833. MACKINNON v. SEWELL. a condition meant in case there should be no more children than one; and that, there being none, the event had literally happened; but it is clear from Sir William Grant's reasoning, that if any thing whatever had turned upon there being one son, he would have decided the other way. This case, it may be remarked, is not so plainly one proceeding upon the principle established in Jones v. Westcomb (a) as some others. The general observation which has been made upon the foundation of this doctrine applies to all the cases. Thus in Avelyn v. Ward (b), the devise over to Ward was, if Urling, the preceding devisee, should neglect to execute a release after the testator's death, and Urling died in the testator's lifetime. This was held a conditional limitation, and not a case of condition; but there was nothing in this view repugnant to the nature of the condition, if it had been taken as such. For the death of Urling before the testator, and the event of Urling surviving the testator and neglecting to execute the release, were one and the same thing as regarded the release. So in Doe v. Scott (c), if the devisee over had survived the testatrix, he would have taken, though there had been no default in the first devisee to convey an estate to him within six months after the decease of the testatrix. There plainly the event contemplated of no conveyance being made was consistent with, or rather was secured by the event which actually hap pened, the predecease of the first devisee. Again, where the gift is to the testator's children surviving him, and if they all die under twenty-one, then over, the condition is substantially fulfilled: the event in effect happens, if the testator leaves no children; for his meaning clearly (a) 1 Eq. Ca. Abr. 245. pl. 10. (c) 3 M. & S. 300. clearly was to give the residue over if no child reached majority, and none could, if none existed. This was the case of Meadows v. Parry. (a) Even the cases which seem less to fall within the scope of these observations, when considered attentively, are no exceptions. Thus Holcroft's case (b) was that of a limitation to the first and other sons of A. in tail, enumerating three, and then, if the fourth died without issue, to B.; and it might be considered as really importing a gift to B. upon the failure of the issue of A's first four sons in succession, an event included of necessity in that of A. having but one son, and that son dying without issue. I have made these observations for the purpose of shewing that the cases all go upon a very rational and intelligible principle, a regard to the substantial effect of the contingency specified, and so to the real intent of the testator. In all of them the clause may be taken as a condition, and treated as such, without any violence, provided we regard the substance and result, and not the mere form. And looking to the true import and effect, it will appear that even taken as precedent con. ditions they have been essentially fulfilled. Wherever this is not the case, wherever the words plainly import a condition as in the testator's contemplation, and where that condition cannot be understood to have been Thus in Murray v. Jones (c) there was nothing to prevent the Court from reading the contingency of there being "but one child," as if it were "provided there be no more children than one," and this being satisfied and more 1833. MACKINNON v. SEWELL (a) 1 V. & B. 124. (b) Mo. 486. (c) 2 V. & B. 315. |