1834. GITTINGS v. was lapsed. The decision is important, first, because it shews that the word "heirs" being used, did not raise any doubt as to the party substituted, its meaning being M'DERMOTT. Sufficiently definite; and, secondly, because his Honor clearly intimates how he would have determined the question of lapse, had the substitution referred to the legatee's dying, not before the time of payment arrived, but before the testator died. It had been contended that the substitution was inconsistent with a pure personal gift to the legatee, and must be taken as carrying the legacy to A.'s representative on his decease. His Honor said, "If the direction had been, that the legacies should, at the testator's death, be paid to the legatees, or their respective heirs, the inconsistency contended for would have existed;" that is, such a gift would have prevented a lapse, and entitled the legatee's next of kin. Now the case thus supposed by his Honor is precisely and in terms the case before the Court. Another case, which came before the Vice-Chancellor in 1829 (a), received much discussion, and the opinion delivered by his Honor plainly shews that, had the bequest been to A. or to his heirs, the gift over would have precluded a lapse. That was a gift" to A. or to his heirs, executors, administrators, or assigns," which was justly held to be void for uncertainty, A. having predeceased the testator; because it was said that 66 assigns" meant some persons to be designated by the legatee, while heirs " meant those who derived no title from him; and executors and administrators were added to the others, so that the whole was held quite uncertain, and a lapse was inevitable. The Vice Chancellor throughout held, that to such words he could not give the sense of next of kin, because no case authorised (a) Waite v. Templer, 2 Sim. 524. him him to do so, though he distinctly admitted that "heirs" alone had received this sense by judicial determination; and no one can carefully read the judgment given by his Honor, without coming to the conclusion that, had the gift been to "A. or his heirs," the decision would have been the other way. The second point is not so free from difficulty. It must be admitted that the expression "to A. and B. or their heirs," denotes distinctly and according to its natural import the alternative of A. and B. not surviving to take, and provides for that event. The words "to A. and B. and upon their death to their heirs," are far from carrying the same alternative sense if they stand alone. On the contrary, they rather seem to point at succession than at substitution; rather look like a gift to A. and B. during their lives, and after their decease respectively to their heirs. The use of the conjunctive "and" seems to point that way, but still more when it is followed by the words "upon their death," which seem to be synonymous with "at their death," and not with "in case of their death," which would denote predecease. But if such be the construction of the gift, that is, if it be to the legatees for life, and after their decease to their heirs, it carries the whole interest to the legatees, and makes a lapse on their predecease. That such would be the true construction of the bequest of this residue in the general case, and if it stood alone, I can have little doubt, though I am not aware of any decision exactly in point. But we must look here to the whole instrument, examine the other parts as well as the clause in question, and attend also to the whole of that clause as well as to the particular words of limitation. The testator is giving the residue to his two sisters in equal shares; and it seems much more likely that he should 1834. GITTINGS v. MCDERMOTT. 1834. GITTINGS v. should have intended to give the children of Sarah Gittings their mother's share in case they survived him and she predeceased him, as he seems to have provided for M'DERMOTT. all his other nephews and nieces, and had left nothing to Sarah Gittings' family. Moreover nothing is said directly of the gift to the two sisters for life; the residue is given to them in terms which would carry the corpus, unless controlled by the words that follow-" and upon their deaths." But, chiefly, it is necessary to regard the other provisions of the will, the general scheme of it, and the manner in which the testator had previously taken precautions to prevent all lapse. He gives legacies to the children of his sister Elizabeth Wall, so as to prevent a lapse by their predeceasing himself, in the way I have already shewn. It appears improbable that, having thus confined those children to 100l. or 2001. each, he should afterwards allow the bulk of his fortune to go amongst them equally with the representatives of his most favoured sisters; and it seems still more improbable, that he should have taken effectual care to prevent a lapse of the small stock legacies given to the Walls, and taken no care at all to prevent a lapse of the whole remainder by the predecease of his sisters. This consideration makes it quite impossible to doubt that the testator, when he used the words in giving the residue "upon their deaths respectively to their heirs," intended the same thing as when, in giving the stock legacies, he had made use of the words "or to their heirs." It is quite true, that the expression" upon their deaths," has never in any case been construed as equivalent to "if they die," or "in case of their deaths," and I by no means intend to state that it is equivalent to those expressions. I have indeed said that, if these words words had stood alone, I could not have considered them as denoting predecease; nevertheless it must be admitted that the phrase has no meaning at all, if it is taken as implying limitation and not substitution, for no one can take what has been given to another, until the death of that other, and while any legatee exists, no one can be his heir. It may be further observed, that giving to A., and on his death to his heirs, refers to two things. which must take place without any such provision, the death of A.; and his heirs taking after him, that is, the property going to those to whom the law gives it; so that it is only saying, "let those take it who may be entitled to take it." But I must again observe, that my opinion as to the construction to be put upon the words in question rests not upon the words taken by themselves, but upon the whole context, and the preceding parts of the will. The current of authority upon analogous cases, there being none upon the expressions here employed, would certainly lead to the conclusion, that if the gift stood alone, a lapse could not easily be prevented; and my opinion is formed upon the preceding argument, by which I have, I apprehend, shewn that the true construction of the foregoing gifts to the Walls precludes a lapse as to those legacies, and that there arises from thence an inference not to be avoided or resisted, that the words employed touching the residue must be taken in a like sense. 1834. GITTINGS v. MCDERMOTT. 1833. ROLLS. Nov. 14. Where, on the failure of BY ELMSLEY v. YOUNG. Y an indenture, dated the 17th of July 1813, and made between Peter Elmsley of the first part, gift to one for Alexander Elmsley, his brother, of the second part, life with re a particular ation in the deed was to such persons as he should appoint, and in default of to such person or persons as should at the time of his death be his next of kin; and the settlor died before the mainders over, and John Adolphus Young and Walter Young of the the next limit- third part, reciting, among other things, that the said Peter Elmsley, conceiving it to have been the intenthe settlor, or tion of his uncle Peter Elmsley Esq., deceased, to have made some provision for the said Alexander Elmsley over and beyond what was specified in the will of his appointment, said uncle, had proposed to settle the sum of 2500%. 3 per cent. bank annuities upon the said Alexander Elmsley and his issue in manner thereinafter mentioned; it was witnessed that the said Peter Elmsley assigned unto the said John Adolphus Young and Walter Young, their executors, administrators, and assigns, the said sum of 2500l. 3 per cent. bank annuities, upon trust to pay the interest and dividends thereof to the said appointment; Alexander Elmsley and his assigns during his life, and after his decease upon trust to pay, assign, and transfer the same unto and among the child or children of the said Alexander Elmsley, by any woman with whom he held not to be might at any time thereafter intermarry in manner the benefit an- therein expressed: but in case there should not be child of the said Alexander Elmsley by any woman any with whom he might intermarry as aforesaid, who being a son should attain the age of twenty-one years, or tenant for life, without having made any the tenant for life, who was one of the settlor's next of kin, was excluded from nexed to that character. The words "next of kin," used simpliciter, and without explanatory context, must being a daughter should attain that age or marry, then the said John Adolphus Young and Walter Young, and the survivor of them, his executors, administrators, and mean next of assigns, should from and immediately after the decease kin according of the said Alexander Elmsley, and such failure of issue be taken to to the statute of distribu tions. as |