tion seems to have been whether survivorship was indefinite, or referable to the death of the surviving legatee for life. Sir W. Grant, observing that he was always indisposed to indefinite survivorship, adopted the latter construction; that is, that the legatees should take absolutely if living at the death of the tenant for life; if then dead leaving issue, then the issue to be entitled in the place of their parent. On appeal Lord Eldon was of the same opinion. A, *In Roe d. Sheers v. Jeffery, (a) it seems to have been taken for granted that an executory limitation for life, to certain Executory depersons or the survivors, was not confined to survivors at vise to the the happening of the contingency; but, as the devise had survivors. not at the death of the object fallen into possession, it does not appear whether survivorship was considered as indefinite, or as restricted to this period. The devise was to A for life, remainder to B in fee; but in case B should depart this life and leave no issue, then that the premises should return unto E., M. and S., or the survivors or survivor of them, equally to be divided between them. E., M. and S. survived the testator, but one of them died in the lifetime of A, but after the contingency had happened by the death of B without issue. The two surviving tenants for life recovered the property, on a different point of construction; (b) and no objection seems to have been made to their claim to the entirety, on the ground that the limitation to survivors was restricted to survivors at the death of the testator, or at the happening of the contingency. [Indeed, considering that the estates in the first instance devised to E., M. and S. were for life only, it is probable even if the question had been raised, that the survivorship would have been held indefinite, so that whenever either of them died the survivors would take his share as a remainder; i. e., "survivor" would have been read not as referring to any particular event, but in its natural sense (c) of that individual who, out of several individuals named should turn out to be the longest liver.] But in Doe d. Lifford v. Sparrow (d) an executory limitation to survivors was held to refer to the death of the testator (the devise being to A and B in fee as tenants in common, and devise to sur (a) 7 T. R. 589. [(c) See per Lord Westbury, Taaffe v. Conmee, 10 H. L. Cas. 78; also Maden v. Taylor, 45 L. J., Ch. 572; Nevill v. Boddam, 28 Beav. 554; Haddelsey v. Adams, Execuiory 22 Beav. 266; and see analogous cases, Smart v. Clark, 3 Russ. 365; Tilson v. Jones, 1 R. & My. 553; Bowen v. Scowcroft, 2 Y. & C. 640; all stated post ch. XLVIII., ad fin.] (d) 13 East 359. vivor referred to death of testator. in case of the death of either without children to the survivor); but this construction was aided by the context, particularly by a gift over of the entire property, in case both the devisees were dead at the time of the decease of the testator without children, from which the court inferred, that in the clause in question, he contemplated death at the same period. Contingent gift to survivors, when not restricted [But where the original remainder is in terms limited upon the happening of an event, (as attaining twenty-one,) the non-*happening of which occasions the gift over, survivorship is almost necessarily referable to that event, whenever it happens. (d) to period of distribution. And generally if there is no special ground for restricting it, a gift to survivors on a contingency would seem to extend to survivors indefinitely, i. e., whenever the contingency happens. It will appear in the next chapter (e) that if there be a gift to A for life, remainder to B, and if B dies without children then to C, the gift over prima facie takes effect whether the contingency happens before or after the death of A: and although, where the remainder is to several, with a gift over to survivors, words are frequently used which import a final division of the property and a closing of the trust at the death of the tenant for life, so as to restrict the operation of the gift over to that period, (f) yet if there are no restrictive words, it would seem to follow from the rule referred to that "survivors" in this gift over means living when the contingency happens, whenever that may be. (g) Even assuming that a gift to survivors upon an express contingency is to be restricted to the period of the prior estate, so that those who survive that period take indefeasibly, the question still remains whether they need so survive, or whether it is sufficient that they are living when the contingency happens. The cases will be found to favor the latter Survivorship referred to time when contingency happens, though gift restricted. position. Thus, in Crowder v. Stone, (h) already stated, Lord Lyndhurst [(d) Carver v. Burgess, 18 Beav. 541, per Lord Hatherley, Bowers v. Bowers, 7 D., M. & G. 97. L. R., 5 Ch. 244, 247. In Clark v. Henry, (e) O'Mahoney v. Burdett, L. R., 7 H. L. R., 11 Eq. 222, 6 Ch. 588, the prior L. 388. (f) Olivant v. Wright, 1 Ch. D. 346. (g) This would seem to be the rule where the original gift is immediate, see legatees were "to have the control" of their shares at twenty-five, survivorship was therefore referred to that age. (h) 3 Russ. 217, ante p. *691. Marri decided that the shares which became subject to the operation of the bequest to the survivor and survivors were divisible among such of the legatees as were living at the time when the events happened on which the shares were to go over respectively. So, in Bright v. Rowe, (i) also stated above, it must have been assumed that the survivorship intended was a survivorship at the time when the several contingencies happened; since otherwise the M. R. could not have decided (as he did) that the personal representative of the child who died without issue in 1829, before the shares became payable, was entitled under the *gift to "survivors" to an interest in the share of the child who died in 1826. And in Ive v. King, (k) where a testator devised and bequeathed property to his wife for life, remainder to trustees in trust to sell, and gave one moiety of the proceeds to his wife's sister and brothers, (naming them,) as tenants in common; "and in case of the death of any or either of them, (which was held to mean death before the wife, as expressed in the gift of the other moiety,) then their respective shares to their children, if any, and if not, then to the survivors of them, share and share alike." A, one of the brothers, died a bachelor before the testator in the wife's lifetime; and it was held by Sir J. Romilly, M. R., that another brother, who survived A and the testator, though he afterwards died in the wife's lifetime, was entitled under the gift to survivors to participate in the share of A. to the event. It seems also that where the remainder is, not to several or the survivors, (as in Cripps v. Wolcott,) but to several, and if Survivorship any of them die before the tenant for life, to the survi- held to refer vors, it will be held to mean survivorship inter se and not at the death of the tenant for life. Thus in White v. Baker, (l) a sum was given in trust for A for her life, and after her death in trust to pay the sum to B and C in equal shares, and sed qu. White". ott v. Abell, L. R., 7 Eq. 478, is contra, that "survivors" was held to denote a class, i. e., to include none who did not also survive the testator, 16 Jur. 491; but see Willetts v. Willetts, 7 Hare 38. (i) 3 My. & K. 316, ante p. *711. See also Ranelagh v. Ranelagh, 2 My. & K. 441, ante p. *692; Fletcher v. Ashburner, 1 B. C. C. 497 (where the point appears to have been assumed.) (k) 16 Beav. 46, 57. Note that the alternative gift to children, not being "in case any brother should leave children," did not assist the construction. Note also (1) 2 D., F. & J. 55, reversing Romilly, M. R., 29 L. J., Ch. 577, 6 Jur. (N. S.) 209, whose previous decision in Cambridge v. Rous, 25 Beav. 409 ("the share of each who shall die to be, divided among the survivors ") appears to be discredited by this reversal. in case of the death of either of them in the lifetime of A, then in trust to pay the whole to the survivor of them the said B and C, his executors, administrators and assigns. It was held by Lord Campbell, with K. Bruce and Turner, L. JJ., that on the death of B in the lifetime of A the whole vested absolutely in C, not liable to be divested if he afterwards died in the lifetime of A. Sir G. Turner said, "Where there is a bequest to A for life, and after his death to B and C or the survivor of them, some meaning must of course be attached to the words 'the survivor.' They may refer to any one of three events to one of the persons named surviving the other; to one of them only surviving the testator; or to one of them only surviving the tenant for life: and in the absence of any indication to the contrary they are taken to refer to the last event, as being the most probable one to have been referred to. *But where, as in the present case, the bequest is to A for life and after his death to B and C, and in case either of them dies in the lifetime of A, the whole to the surwivor, it is plain that the words in their natural import refer to the one surviving the other; and the question is not to which of the events above mentioned the testator intended to refer, but whether there is any context to alter the ordinary meaning of the words which he has used." He also thought the case was made stronger by the words "his executors," &c., being added to the gift in favor of the survivor; (m) in which he agreed with Lord Campbell. But he added that the case needed no such support, and he "preferred deciding it upon the more general ground." Scurfield v. Both judges pointedly approved of Scurfield v. Howes, (n) and treated it as directly in favor of their decision. There the bequest was to A for life, and after her decease to her two children share and share alike, but if either of them should die before the decease of their mother, the whole to the survivor of them. (0) Both died in A's lifetime, and it was held that the legacy belonged to the personal representatives of the survivor. It seems, (m) As contrasted (it may be presumed) with their absence from the original gift to the two. (n) 3 B. C. C. 90. See also per Shadwell, V. C., Antrobus v Hodgson, 16 Sim. 450. But this was heard as a short cause, and the successful party being legal representative of both B and C was entitled quacunque via. (0) The words "of them" are supplied from R. L., 6 Jur. (N. S.) 592. But Lord Campbell stated the case without them, and in other cases they appear not to have weighed in favor of survivorship inter se. therefore, that White v. Baker cannot fairly be said to have turned on the particular language of the will. (p) The construction which reads survivors as those who are living when the contingency happens is confirmed if the gift to them is in the alternative with another which clearly points to that time; as, where the shares of any of the original legatees in *remainder are given over in case of their death leaving issue to such issue, but if they leave no issue, then to the survivors. (q) Distinction fund. There is perhaps some difference between a gift to survivors of the whole fund and a gift to survivors of the share of the deceased legatee. In the former case the point of new departure is the death of the tenant for life, in the latter the death of the legatee. The former is therefore more over of whole favorable than the latter to reading "survivor" as "living at the death of the tenant for life." But in Scurfield v. Howes and White v. Baker, although the gift was of the whole, and not of the share, "survivor" was held to mean him who outlived the other legatee. In fact no such distinction has ever been judicially noticed; and the ratio decidendi in White v. Baker would seem to leave it little room to operate. It is therefore doubtful how far Watson v. England (r) can now be regarded as an authority. In that case a testatrix having a power to appoint a sum of £1500 appointed it to her husband for life, and after his death to be equally divided among the five (p) See, however, per Wood, V. C., L. R., 1 Eq. 298. Upon the question discussed in the text, frequent reference is made to a Scotch case of Young v. Robertson, 4 Macq. 314, 337, 8 Jur. (N. S.) 825, where the testator (or truster) gave the residue of his estate in trust for his wife for life, and "to pay the same after the death of the longest liver of me and my said wife to and among" six persons (named); "declaring that if any of them should die without leaving issue before his or her share vest in the party or parties so deceasing, the same shall belong to and be divided equally among the survivors of" the six. A, one of the six, died without issue; afterwards B, another of them, died leaving issue; then the wife died. It was held in D. P. that B took no part of A's share. But none of the English cases in point were cited, nor was the question decided in them alluded to, the only contest being whether "survivors" meant living at the death of the testator (as had been decided in Scotland) or at the death of the wife, and no third construction being suggested. Strictly the decision bears only upon Scotch law; and although the Scotch and English rules on the subject were treated as identical, it is submitted that the case ought not to be considered as having sub silentio overruled the English decisions. (q) Wilmot v. Flewitt, 11 Jur. (N. S.) 820. Qu. whether Cambridge v. Rous, 25 Beav. 409, ante p. *741, n. (1), is not inconsistent with this case also. (r) 15 Sim. 1. |