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Leonard at the Rolls. (a) The latter was shortly this. A bequest to the widow for her life, and on her death the monies to be divided between the two daughters, and in case of the death of them or either of them leaving a child or children, to that child or those children. The daughters were held to take an absolute interest on surviving the widow, that is, the clause was read, “ in case of their death during the lifetime of the first taker.” It is hardly necessary to remark how close this case comes to the one at bar. Indeed the two cases cannot be distinguished as far as the clause goes, for in both the possibility contemplated is the same, namely, the death of the legatee, leaving a child or children, and that, though somewhat less vague than the clause " in case of death” generally, is yet held to describe an event too well defined, and therefore receives the restriction of the first laker's life, in order to advance the period of vesting, and to terminate the interval of suspense during which it must remain uncertain what amount of interest the legatee takes.
It may thus be stated as a general proposition, that where the bequest over is in case of the legatee's death, and no other reference can be made, the period taken is the life of the testator; but where another can be found, that will be preferred, to avoid the supposition of the testator's having contemplated and provided against a lapse. A preceding gift for life, or other interest less than the absolute property, will furnish this reference. But this is not the only means of restricting the generality; and a direction that the gift shall vest at a given time, affords just as easy and as natural a reference as a preceding life interest. Thus a bequest to A., and in case of his death to B., is a gift absolute to A., unless he
dies (a) i Swan, 161.
dies in the testator's lifetime. A bequest to C. for life, and then to A., and in case of his death to B., is a gift absolute to A., unless he dies during C.'s life. A bequest to A., when and if he attain the age of twenty-one, and, in case of his death, to B., is a gift absolute to A. unless he dies under age. It appears impossible to doubt that such would be the natural and obvious reading of the words in all these cases, if there were no general principles governing the legal presumption connected with the subject, and no authority of decided cases imposing a sense upon the expressions.
The decisions to which I have referred are upon the subject immediately before us. But a similar view of the matter pervades many of the cases upon an analogous point, namely, the time to which words of survivorship among tenants in common of a legacy shall be taken to relate, whether to the testator's decease or to the distribution of the fund, or to some other time; and although upon this subject the series of cases is much less unbroken, and there are some not to be reconciled with others, yet it may be observed that the leaning towards adopting a definite period, in order to advance the time when the interest shall become determinate, has led the Courts to take the testator's death, where no other limit could be found except the period of distribution, as in Bindon v. Suffolk (a), Maberly v. Strode (6), Perry v. Woods (c), and that class of cases; while the particular circumstances in some of the other cases, and, probably, still more, a disposition to avoid the supposition that the testator was providing for the case of his legatee's predecease, may have given rise to the decisions which followed; I allude to Brograve v. Winder (d),
Daniell (a) i P. Wms. 96.
(c) 3 Ves. 204. (6) 3 Ves. 450.
(d) 2 Ves. jun. 634.
Daniell v. Daniell(a), and others which shook the former series, and prepared the way for Cripps v. Wolcott (1), decided by the present Master of the Rolls. It cannot be doubted, that if this last decision is to be taken as settling the law upon this head, it reconciles that law to the whole current of authorities upon the point, so intimately connected with it, which is now before the Court. If Cripps v. Wolcott is to stand against the cases over-ruled by it, - and it would now be most inconvenient to hold otherwise, there may be some difficulty in supporting his Honor's present decision upon principle; but though Cripps v. Wolcott were set aside, and the former rule of construction restored, that rule of construction would give no support to the judge ment now under review.
In the present case, no period can be derived from any prior life-estate, at the determination of which the gift over is to take effect. But the whole clause, taken together, furnishes a period for the restriction, at once natural and obvious, and consistent with the plain meaning of the testator, and peculiarly agreeable to the frame of the bequest. He first gives his nieces the monies, when and if they shall attain twenty-one: at the age of majority, therefore, the legacies vest; and, as far as this branch of the clause goes, vest absolutely. He then gives those legacies to their sole and separate use, free from the debts or control of their husbands. Legacies so given to vest at a specified time, and so secured to the objects of the gift exclusively, can only be revoked,
– for partially they are revoked, if they are converted into life interests,-can only be so altered and retracted by the most plain and unambiguous and unequivocal proviso; and the Court will, in dubio, justly prefer that
construction (a) 6 Ves. 297.
(6) 4 Mad. 11.
construction of any subsequent clause which will make it consistent with the intention plainly expressed in the preceding part. If we read the latter part as contemplating a dying at any time, and as converting the legatee's interest, from an absolute interest in the capital sum, into a life annuity in the event of her leaving a child at her death, we entirely destroy the first part of the clause, which provides for the interest vesting at twenty-one. According to this construction, she has attained her age of twenty-one in vain ; for at that period, so anxiously pointed out by the will as the time when she was to receive the sum of 20001. sterling, she only acquires the chance of her will operating upon it in case she dies childless. During all the days of her life she has no more control over it after twenty-one than she had before. It appears quite clear to me that the other construction is the sound one. Having first provided for the legacy vesting when the legatee is of age, and secured it against the interference of others in the event of marriage, the testator provides for the case of the legatee dying under age, and leaving a child or children; in that case they take their mother's legacy, because she did not live till it vested in her. This seems the better restriction to introduce, and more in accordance both with the probable intention and with the authorities, than if we read the words “ in case of decease," as referring to the death of the legatees in the lifetime of the testator. But that the construction adopted below, of death at any time, is inconsistent with all the cases from the earliest downwards, I feel fully assured, and shall now proceed to shew.
In doing so I have no occasion to refer to more cases than I have already cited in support of the construction which I put upon the clause. I may add, however, to the judgments of Sir W. Grant, already referred to, the
case ing (a) 5 Ves. 806.
case of King v. Taylor (a), decided by Lord Alvanley, where the bequest was to a son when he should attain the age of twenty-three, and to a daughter, with a provision securing her interest during coverture, and if either child should die, then the survivor to have the share of the other; and Lord Alvanley, in declaring both legacies to vest absolutely, the one at twentythree, the other at the testator's death, dwells much on the time of vesting being specified as to the son's portion, and shews how this case differs from others which have been sometimes supposed to throw doubt upon the doctrine. The same difference, it may be observed, exists in a stronger degree in the present case.
But it may be fit that we should advert to those cases which have sometimes been supposed to proceed upon a different view. A little attention will shew that these, in reality, stand in no kind of conflict with the others, with the exception, perhaps, of the solitary decision of Lord Douglas v. Chalmer. They are not numerous, and they all turned upon very special circumstances. Thus Billings v. Sandom (6) was a bequest to A. of 10001., and in case of the legatee's death 8001. to B., and 2001. to C. The manner of dividing the sum between two, in unequal portions, might perhaps be thought to indicate a peculiar contemplation of the legatees over. But the decision did not go upon that. Lord Thurlow particularly relied upon the residuary clause, which expressly gave to the same A, the residue « to be disposed of as he should think proper ;” and his judgment plainly rested upon the contrast between the testator's expression, when he clearly intended to give her the absolute interest, and his expression in giving the legacy when he did not bring out his mean
(6) i Bro. C. C. 593.