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his lordship here refers to Wilmot v. Wilmot,10 as a case where "it was scarcely possible to put any other meaning on the words." In this last case, as in many others, great stress is put upon the evident purpose not to have the gift over take effect, in part only, as clearly indicating that the word "surviving" must be construed as synonymous with "other," or "living at the age aforesaid."

7. This class of cases seems to go mainly upon the fact that the remainder is a vested interest, and must therefore go to the representative of those of the class which have deceased before coming into the actual possession, and that therefore, upon the decease of any of the class without issue, the contingency upon which the survivorship is made to depend, the estate in remainder will go not only to those of the same class in whom it had before vested, but that it must also go to the descendants of deceased members of the class, and to personal representatives of such deceased members of the class, in case of personalty, in whom it vested upon the decease of those primarily entitled. Thus Lord Eldon concludes his opinion in Wilmot v. Wilmot 10 by the use of language indicating, clearly, that he held it to turn exclusively upon the question of vesting. "I think they are right in contending that this vested." 11 What is here meant by "vesting" is, that it created such an estate in the party entitled in remainder as to be transmissible.12

8. It is upon this view that it has been held,13 that limitations in a deed to trustees for the use of A and B for life, remainder

10 8 Vesey, 10.

"See Dawson v. Killet, 1 Br. C. C. 119, 124; Roebuck v. Dean, 4 id. 403; 8. c. 2 Ves. Jr. 265.

13 Ante, pt. 1, pp. 388-393.

13 Doe d. Watts v. Wainewright, 5 T. R. 427. But it has often been held, that cross-remainders cannot be implied in a deed, but must be raised by proper words, which Lord Kenyon, Ch. J. said, in Doe d. v. Worsley, 1 East, 416, 428, had been established for centuries, in regard to deeds. But in Wright v. Holford, 1 Cowp. 31, it was held such cross-remainders might arise, in the case of a

to the use of the child or children of B in tail as tenants in common, and if any such child should die without issue, the share of such deceased child to the use of the "surviving child or children," and their heirs, &c. ;" and in case all the children should die without issue," then over, created cross-remainders in the children of B; and that on the death of one without issue, his share vested in a surviving child or children, and in the heirs of a deceased child or children, as tenants in common.13

9. But it seems to be conceded by the most careful writers,14 that the tendency of the more recent cases is in an opposite direction. This was so held by Lord Brougham, in Ranelagh v. Ranelagh; 15 but his lordship declared that the decision rested upon the circumstances of the particular case. The literal construction of the word "survivor" was adhered to in the case of Cromek v. Lumb,16 and the fact, that in another portion of the will the word "survivor" was used in immediate connection with "other," thus showing, that in that particular case it was used as synonymous with it, was not regarded as sufficient to control its construction in that particular connection. But it is here conceded, as it has been held in other cases, that where the two terms are used in immediate connection, as being of equivalent import, it will preclude the possibility of restricting the two terms to the literal import of the word "survivor." 17

10. And it seems that in some cases it has been held, that where the gift over is combined with some collateral event, as

devise, by implication and presumption; and this rule as to wills seems not to have been questioned. Lord Kenyon, Ch. J., in Doe d. v. Worsley, supra.

14 2 Jarman, 651.

15 2 My. & K. 441.

16 3 Y. & C. 565.

17 Slade v. Parr, 7 Jur. 102. So also in Winterton v. Crawfurd, 1 Russ. & My. 407, where the expression was, "survivors or survivor and others or other of them," it was held that it could not be restricted to the survivor only. Sir John Leach, M. R., said, "The expressions of the testator are too precise to impute to him such an intention."

well as the decease of the former holder, the probability that the testator intended to adhere to the strict meaning of the word "survivor" or "survivors," is materially lessened. Thus in Aiton v. Brooks,18 the word "survivor" was held equivalent to "other," Sir L. Shadwell, V. C. saying this was matter of necessity, since "the testator contemplated the event, not of one of the legatees dying in the lifetime of the other, but of one of them dying childless." Mr. Jarman, in his latest edition,19 very justly remarks, that if this distinction had been adhered to it might have saved some uncertainty and much confusion, "and a large amount of litigation would probably have been prevented." But unfortunately neither that nor any other rule seems fairly deducible from the cases, as to the precise reason which will justify reading "survivor" as equivalent to "other"; except that it is to be done, whenever, from the context, or the other provisions of the will, it is rendered morally certain such must have been the intention of the testator.

11. And in an important and leading case,20 Sir James Wigram, Vice-Chancellor, after reviewing the leading cases decided before that time, and bearing upon the question, declares, that where the courts have given the word "survivor" the force of "other" it has been done to avoid some consequence which it was very certain the testator could not have intended; as that the family intended to be benefited by the provision should fail of all advantage from it, by reason of the death of the parent leaving children, an event, indeed, which in reason the testator ought to have anticipated, but which he evidently did not. But such a result could not be attained, however desirable, where the testator's language was so specific, as to admit of no construction.

12. We have before incidentally alluded to the most potent

18 7 Sim. 204.

19 2 Jarman, 654.

Leeming v. Sherratt, 2 Hare, 14.

38; Moate v. Moate, 16 Jur. 1010.

See also Willetts v. Willetts, 7 Hare,

ground which has been urged for construing "survivor" as synonymous with "other," that is, the form of the gift over. As where the gift over is made dependent upon a certain event happening to all the prior donees, or that they die under age, or without issue, or both. In such cases it seems generally to have been held that the word "survivor" or "survivors" when used in regard to one of the prior donees deceased, must be construed as only equivalent to "other or others," thus clearly manifesting an intention on the part of the testator to make the gift over depend upon the failure of any of the prior donees to leave issue.21

13. The courts have manifested great readiness to construe "survivor" as "other," whenever that became indispensable to carry out the intention of the testator; 22 but in all other cases that is resisted, as will appear in all the more recent and wellconsidered decisions. And it is evident that cannot be done where the language of the devise is so specific as to exclude any such construction, although it may become indispensable to carry out the general intention of the testator. Where the langauge is so explicit as to exclude all construction, it must control, although thereby defeating, the obvious intent.

14. There are many cases where, from the general nature of the provisions of the will, it is evident the testator intended to put the issue of any of the primary donees upon the same footing as the parent, in regard to every provision affecting the disposition of his estate; but where in the provision in regard to survivorship he has used the term "survivor" or "survivors," which in strictness will only include those of the same class of

21 In addition to cases already referred to under this head, we may refer to Cursham v. Newland, 2 Bing. N. C. 68; s. c. 2 Scott, 105; s. c. 4 M. & Wels, 101; s. c. 2 Beav. 145; Lowe . Land, 1 Jur. 377; Cole v. Sewell, 4 D. & War. 1; s. c. affirmed in House of Lords, 2 Ho. Lds. Cas. 186; Smith v. Osborne, 6 Ho. Lds. Cas. 375.

222 Jarman, (ed. 1861,) 658.

the primary donees, and thus exclude the issue of any deceased member of the class from all participation under the clause of survivorship. In all such cases the courts have very naturally concluded that the word "survivor" was used to indicate the other members of the class, and the issue of any deceased member.23 But it is evident the testator may use language, even in cases of this character, so precise as to exclude the issue of a deceased member of the class of primary donees.

15. And where the gift is to specified persons, and not to a class, and it is provided that upon the death of one or more without issue, the share of such deceased person or persons shall go to the survivor or survivors, it becomes very apparent that by "survivor" the testator must have intended to include the issue of such as predecease those who die without issue. If this were not so, and those who die without issue die last, there would be no mode of giving effect to the gift over.24

16. But the courts will not adopt the construction of "survivor" as synonymous with "other" if the gift over will thereby be rendered void for remoteness. That is the ground chiefly relied upon in Turner v. Frampton,25 by a very learned and able equity judge, Sir J. L. Knight Bruce, Vice-Chancellor.

17. This seems to be one of those missapplications of language in drawing wills, to which the most experienced and expert draughtsmen will sometimes be liable, and which is almost universal with testators, who naturally enough expect their wives and children and all for whom they are making provision in their wills, to survive them, since that is the main purpose of making such a provision. But the conclusion which testators not

Eyre v. Marsden, 2 Keen, 564; s. c. 4 My. & Cr. 231; Hawkins v. Hamerton, 16 Sim. 410; Peacock v. Stockford, 7 DeG., M. & G. 129. And the early case of Harman v. Dickenson, 1 Br. C. C. 91, was decided upon the same ground.

24 Smith v. Osborne, 6 Ho. Lds. Cas. 375.

25 2 Coll. 331.

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