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1833.

after the testator's death, it would have been a case of substitution, and not of absolute gift. Tidwell v. Ariel, therefore, is in reality an authority for the Plaintiff.

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The Master of the Rolls.

A will speaks at the death of the testator, unless his intention be clearly manifested to the contrary. When, therefore, the testator gives the several legacies of stock to the children of his sister or to their representatives, be plainly intends that if any of the children should not be living at his death, their representatives should take by substitution. This is the effect of the word “or," which differs wholly from that which must have been given to the bequest, had the word " and " been used.

With respect to the residuary clause, a question is also made, whether a substitution is intended, or whether an absolute interest is given to the two sisters. Now it is impossible to read this residuary clause, and not to see that the words plainly import an intention, on the part of this testator, to give the residue of his estate, by way of substitution, upon the respective deaths of his sisters. It is clear that the testator did not intend that the interest of the sisters should exhaust the whole property. He gives the residue of his property in equal shares to each of his sisters, and upon their deaths respectively to their heirs. What is the plain import of these words ? Not that the sisters were to take the absolute property ; but that, upon their deaths respectively, whenever such deaths should happen, the property should go to their heirs. I am of opinion, therefore, that this gift did not lapse upon the death of the sisters in the lifetime of the testator, but that it went to those who would have taken it by succession had the persons to whom the life interest was given survived the testator.

1833.

TINGS

v. MODERMOTT.

With respect to the import of the word “ heirs,” its construction must be governed by the nature of the property; and this property being personal, those who succeed to it are not the heirs at law, but the next of kin. In the case of Mounsey v. Blamire, the word “heir” was a mere word of description, and it was impossible to give to that word any other than its legal and technical signification. There happened to be co-heirs, and the Court was consequently of opinion, to which opinion it still adheres, that such co-heirs, as persona designato under the word “heir,” were entitled.

The Defendant M Dermott appealed from this decree.

L. C. 1834. May 22.

The case having been opened, on the part of the Appellant, by Mr. Jacob and Mr. Turner, the Lord Chancellor considered it unnecessary, for the reasons stated in his judgment, to hear the other side.

The LORD Chancellor, after stating the will, proceeded as follows:

It appears that the testator was a private soldier, who, having by his sober and steady demeanour raised himself in the service, left 15,0001. by the will which is the subject of this appeal. In adverting to his merits and his success, it is difficult to avoid regretting that perhaps his only reverse of fortune should finally have brought his hard-earned property into this Court; for whatever doubts may be entertained as to where he designed it to go, it may be pretty confidently affirmed that we were not in any degree the objects of his bounty. Being disposed, however, to keep it here as short a time as possible, I shall not call on the counsel for the

Respondents,

1834.

Respondents, having no doubt at all on one part of the case, and on the other, though far from being so clear, having not a sufficient doubt to require further argument in support of the decision of the Master of the Rolls.

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The will presents two questions for consideration.

First, do the legacies given to Elizabeth Wall's children respectively, “or to their heirs," lapse as to such children as died in the lifetime of the testator, or vest in their heirs ? Who shall be intended by the word “heirs" is not here disputed; the question of lapse only is before the Court.

Secondly, do the equal shares of the residue given to the testator's sisters, "and upon their deaths respectively to their heirs,” lapse, or go to the persons, whoever they may be, who shall be intended heirs ?

Although I am not aware that it has ever been judicially determined that legacies “to A. and B., or to their heirs,” are to be read, “ to A. and B., and if either predecease, then to his heirs,” so as to prevent a lapse; yet I think that, both upon reasonable grounds of construction, and upon the authority of several dicta, there can be no doubt of such being the true sense of the expressions. The force of the disjunctive word “or” is not easily to be got over. Had it been “ and,” the words of limitation would, of course, as applied to a chattel interest, have been surplusage; but the disjunctive marks as plainly as possible that the testator, by using it, intended to provide for an alternative bequest; namely, to the legatees if they should survive; and if they should not, to their heirs. It is no doubt true, that a testator cannot exclude a lapse by using negative provisions, as by saying, “ This legacy shall

not

1934. not lapse by predecease of the legatee.” The legacy

must be given over to another in that event, in order GITTINGS

to prevent its falling into the residue; the intent, withM DERMOTT.

out such designation of a substitute, being indeed indicated, but not, for legal purposes, sufficiently expressed to admit of its being carried into effect. And here it may be said, that no distinct substitution is made, inasmuch as the word “ heirs” is of ambiguous import when applied to a legacy. But there is really nothing in this objection; for the sense in which this word shall be taken, when applied to personalty, is fixed by many decisions. It designates the heir of the personalty, that is, the next of kin. So Lord Alvanley held in Holloway v. Holloway (a), though the point was not necessary to be decided ; in Lowndes v. Stone (6), the Court held that a gift of the residue to the testator's “next of kin or heir at law” carried it to the next of kin; and in Vaux v. Henderson (c), a gift of 2001. to A., and if he died before the testator, then to his heirs, was held by Sir William Grant a gift to the next of kin.

I have, therefore, no doubt that the words provide with sufficient distinctness a substitute for the legatee, if it be admitted that the event of her predecease appears to have been in the testator's contemplation; and I have already shewn it to be so upon the reasonable construction of the words.

The authorities will be found to support this construction. Corbyn v. French (d), decided by Lord Alvanley, has been relied on in argument, and is a case of great and recognised authority; but it does not touch or even come near the present question. It was a gift of

the (a) 5 Ves. 399.

(c) 1J. & W.388. n. (6) 4 Ves. 649

(d) 4 Ves. 418.

the residue to the widow for her life, and at her death 1894. part of it to B., or to her proper representative if B.

GITTINGS should not be living at the widow's death ; and other equal parts of it to C. and D. or their representatives or MD

M.DERMOTT. representative; and C. having died in the testator's lifetime, the question was, if his share lapsed. Lord Alvanley held, and most soundly held, that the substitution of the representatives was only intended to meet the same event in respect of C.'s and D.'s shares as in respect of B.'s; namely, their severally predeceasing, not the testator himself, but his widow; and he decided the legacy of C. to be lapsed. Can it be pretended that the same decision would have been given had the gifts been to B., C., and D. respectively, without any previous life interest to the widow, and without any reference either to her decease or to their surviving her ? Clearly not; the only grounds of the judgment would then have altogether failed.

The principle which ruled the case of legatees of the corpus predeceasing one who took a life interest in the first instance, has been applied to the case of legatees dying before the terın of payment, when that was a given time fixed by the will, and when the substitution was made with a reference to the first taker's dying before that time. This was decided in Tidwell v. Ariel (a), by the Master of the Rolls.

In that case the testator gave a legacy to his daughter A. among several other legacies to different persons named in his will, all which legacies he directed to be paid by his trustees one year after his death, “or to their several and respective heirs;” and A. having predeceased the testator, his Honor decided that her legacy

was

(a) 3 Mad. 403.

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