1833.

JAQUES

บ.

JOHNSON.

half of his trust stock to be disposed of, and to this disposition the same observations apply.

It is further to be remarked that, unless this construction be adopted, the testator makes no disposition of the 3 per cent. stock, although it may pass by the residuary clause in his will. This, however, is not a probable intention, considering that the 3 per cent. consols were directly in his view, and at all events disposed of expressly during the lives of his wife and sister.

Upon the whole, therefore, I am of opinion that it was the intention of this testator that his 3 per cent. consols should be converted into and form one common fund with his 4 per cent. consols, and that he intended them to pass by his will under the description of the said 4 per cent. trust stock.

1833.

TH

GITTINGS v. M‹DERMOTT.

ROLLS. July 29.

L. C. 1834.

May 22.

A testator

gave to the

children of his

sister, the late E. W., whose

names he enu

merated, " or

to their

Three of the children died

HE will of Charles Stone contained the following bequest:-"I give and bequeath to the children of my sister the late Elizabeth Wall, or to their heirs, the following sums, vested in the Navy 4 per cent. public funds; that is to say, to Lavender Wall 100l.; Edward Wall 2001.; William Wall 200l.; Sarah Thornby her eldest daughter 200l.; Charlotte Brown her youngest heirs," cerdaughter 2001.; Edward Wall her grandson 1007.; tain legacies. amounting in the whole to 1000l. stock." The testator, after giving various other specific and pecuniary legacies, disposed of the residue of his property as follows:-"All the remainder of my property of whatever description in the public funds, arrears of pay, half-pay, and allowances, and whatsoever effects I may die possessed of, after payment of all bequests and debts, I give and bequeath in equal shares to each of my dear sisters, viz. to my very dear sister Mary Stewart one half, and to my sister Sarah Gittings the other half of the said property, and upon their deaths respectively to their heirs."

Mary Stewart and Sarah Gittings, the testator's sisters,

and three of the legatees of the 1000l. stock, died in the lifetime of the testator. The bill was filed by Charles Gittings, who was the heir at law and one of the next of kin of Sarah Gittings, and also one of the next of kin of

the testator, against the several other parties claiming interests under the will.

in the lifetime tator: Held, that the legacies to these children did that their next not lapse, but of kin took by

of the tes

substitution at

the death of the testator.

The same

testator gave all the residue. of his property "in equal shares

to each of his sisters, M. S. and S. G., and upon their deaths respectively to their

heirs." Both

sisters died in the lifetime of the testator:

On Held, that the

next of kin

of M. S. and of S. G., living at the death of the testator, were entitled by substitution to the gift of the residue.

1833.

GITTINGS

v.

M'DERMOTT.

On the bequest to the children of Elizabeth Wall a question was raised, whether the legacies given to such of them as had died in the lifetime of the testator had lapsed, or whether the heirs or next of kin of the deceased children were, in the event which had happened, entitled by substitution.

Mr. Bickersteth, for the Plaintiff, cited Corbyn v. French (a), for the purpose of shewing what the inclination of Lord Alvanley's opinion was in a case of this nature, although it was unnecessary expressly to determine the point in that case. Lord Alvanley there said, "I will not determine, because it is not necessary, that where a legacy is given to a person or to his representatives,' it can mean any thing but in case of his death in the life of the testator." The word "heirs" was in this case equivalent to "representatives," and it was clear from this observation what construction that learned Judge would have put upon the words of the bequest in the present case.

The MASTER of the ROLLS said it was clear that the word "or" implied a substitution, and that there was consequently no lapse. The word heir must, in respect of personal property, be taken to mean next of kin.

On the residuary clause,

Mr.Bickersteth and Mr. Sharpe, for the Plaintiff, argued that the interest given to the testator's sisters could no more be taken to be an absolute interest than that given to the legatees of the stock. It would be a strange construction to hold that the gift of the stock had not lapsed, but that there was a lapse of the gift of the residue, although

(a) 4 Ves. 418.

though in both cases the testator had equally manifested his intention of extending his bounty to the heirs of the legatees in the event of their death. If the residuary gift should be held to have lapsed, the Plaintiff was entitled to a share of the residue as one of the next of kin of the testator; if there was a substitution, he was entitled to a moiety of that residue, whether he took as heir, or as sole next of kin of one of the testator's sisters.

Mr. Booth, for a Defendant in the same interest as the Plaintiff.

Mr. Pemberton and Mr. Turner, for the Defendant M'Dermott, who was one of the next of kin of the testator, contended that the gift to the heirs of the residuary legatees on their respective deaths was plainly a limitation, and not a substitution; and this limitation was made in language which, as applied to personal estate, gave the absolute interest to the person named as the first taker. In Robinson v. Fitzherbert (a) the limitation resembled that in the present case; there the interest of a sum of money was given to A. for life, and at his death to devolve to the heir of his body, with remainder over, and it was held that A. took an absolute interest. Now, whether a limitation of personal estate were made to a person for life, with remainder to the heirs of his body, or, as in this case, with remainder to his heirs; whether it were made in language which, with reference to real estate, would give an estate tail or an estate in fee, the person intended to take as tenant for life was in either case entitled to the absolute interest. In Britton v. Twining (b), Sir William Grant held that where there was nothing to qualify the words "heirs of the body," those words must be taken to be used

1833.

GITTINGS

v.

M'DERMOTT.

(a) 2 Bro. C. C. 127.

(b) 3 Mer. 176.

1833.

GITTINGS

บ.

M'DERMOTT.

used in their strict technical sense; and that where words were so used as to give an estate tail in land, they would pass an absolute interest in personal estate. So in Mounsey v. Blamire (a), where the testator gave a pecuniary legacy to his heir, there being nothing in the context of the will to control the ordinary and legal sense of that word, his Honor was of opinion that the heir, and not the next of kin, was entitled. In the present case there was nothing to qualify the word heirs ; it was so used as to give the absolute interest to the testator's sisters, and the gift having lapsed by the death of the testator's sister in his lifetime, the residue was distributable among his next of kin. Tidwell v. Ariel (b) was a case very similar to the present. There the testator gave, among other legacies, a sum of 600l. to his daughter Dorothy; and he directed all these legacies to be paid to the legatees by his trustees at the end of a year next after his decease, or to their several and respective heirs. Dorothy died in the lifetime of the testator, and it was held that her legacy had lapsed.

Sir C. Wetherell, Mr. G. Richards, Mr. Cooper, and Mr. O. Anderdon, for other parties.

Mr. Bickersteth, in reply.

Tidwell v. Ariel was decided upon the special circumstance of the direction by the testator to pay the legacies at the end of a year after his decease. The alternative of payment to the representatives of the legatees at the end of a year after the testator's death was perfectly consistent with an absolute gift to Dorothy, for she might have died within that period. The Court expressly took that distinction, and intimated that, had it not been for the direction to pay at the end of a year after