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Lorsque le document est trop grand pour 6tre reproduit en un seul clich6, il est filmi A partir de Tangle supArieur gauche, de gauche A droite, et de haut en bas, en prenant le nombre d'images nAcessaire. Les diagrammes suivants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 ^ /fT" A AIANUAL OF THE LAW OF WILLS, (For the Use of Students) \\\ HENI^Y NEWBOLT ROBERTS. Of Os^^ooih' Hall. Bainsler-at-l. lUV. lOKON I (> : C. \V. Goodwin & Company, Law Puislisheks. 1892. I-.'. Entered accoidiiijr lO Art of Parliuincnt of 'Canada, in the year 1892, by IlBVRv Nkwholt Koiikkth, in tho ottice of Ihe Mini ter of Agriculinrt', Ottawa. CONTENTS Chapter I. By what Local Lawr Wills are Regulated i Chapter II. Form and Characteristics of a Will Chapter III. Testamentary Capacity Chapter IV. ' Requisites for a Valid Will Chapter V. Alterations, Interlineations and Obliterations ... 15 Chapter VI. Revocation of Wills 16 Chapter VII. Revival of Wills 19 iv. CONTENTS, Chai>teii VIII. What Property may bo Disposed of by Will 21 Chakier IX. Wlio may be Devisees or hteu XXI. Gifts without Words of Limitation 83 Chaffer XXII. Devises without Words of Limitation 86, Chapter XXIII. Estates of Trustees 88 Chapter XXIV. Precatory Trusts 92 Chapter XXV. Heirs, Heirs Male, etc 94 :■■ si*-- ■« VI. CONTENTS. CHAI-rERXXVI. Estates Tail 99 Chapter XXVII. Death without Issue, etc 1 08 Chapter XXVIIL Vesting 113 Chapter XXIX. Substitution, Survivorship, etc . . 125 Chapter XXX. Charges, Liability to Debts, etc 135 Chapter XXXI. Legacies 146 APPENDIX. The Wills Act of Ontario 153 PREFACE. This work is founded principally on Mr. Hawkins' Tn-atise on the Construction of Wills, the arrange- ment and language of which has been to a great extent followed. Reference has also been made to Janndu on Wills, 4th edition; Theobald on Wills, 3rd edition: Walkem on Wills, and Williams on Exe- cutoi-s, 8th edition It is only intended as a guide- lx)ok for the use of students, to whom I venture to liope it may prove useful, especially in preparing for their examinations. H. N. R Toronto, 1.S92. 153 — • A MANUAL OF ^"^ Try TXT T T X o ERRATA. Page I44.--C0UROU V. CouRou should be Conron V. Conron. Page 145; Line S.—Courou v. Courou should be Conron v. Conron. Page 151; Line 10.— After "former" add "the rule has no application". situated. (Theobald, :>nl ed., 1 ; 1 Jariu, 4tli cd., 1 ; Walkem, 7.) As regards personal propert\% the law of the testator's domicile, at the time of making his will A MANUAL OF THE LAW OF WILLS. CHAPTER I. BY WHAT LOCAL LAW WILLS ARE REGULATED. The possession of propoi't}' in one country, b}" persons domiciled in another, is now so i»*eneral that the enquiry by wliat local law a testamentary dis- position of such property must be <]^ove]'ned is of the hif>'hest importance. A will, so far as it I'elates to immovable property (which term includes leaseholds), nuist be ma le in accordance with the formalities required by the law of the land where the inunovable property is situated. (Theobald, .Srd e(l,, 1 : 1 Jarm, 4th eri., 1 ; Walkem, 7.) As regfanls personal property, the law of the testator's domicile, at the time of makinnf his will A MANUAL OF and of his death, if there is no intermediate change, must govern the form of the will, and the solemnities of its execution ; so that if a testator be domiciled in a foreign country, and own personal estate in Ontario, a will executed according to the law of the country in which he is domiciled at the time of his death would be recognized in Ontario as a valid disposition of such property. (Walkem, 5; Theobald, 3rd ed., 3; 1 Jarm, 4th ed., 2.) Wills of personality made in execution of powers are valid, if made in accordance with the instrument creating the power without reference to the domicile of the testator, subject to Section 13 of The Wills Act of Ontario, which enacts, that, "no appointment made by will, unless the same is executed in manner hereinbefore required, (Sec. 12;) and every will executed in manner hereinbefore required, shall, so far as respects the execution and attestation thereof be a valid execution of a power of appointment by will, notwithstanding it has been expressly required that a will made in exercise of such power shall be executed with some additional or other form of execu- tion or solemnity." {R. S. 0, 1887, c. 109, s. 13.) E.g. — A will executed according to The Wills Act of Ontario is a good execution of a power, though a.te change, solemnities Dmiciled in n Ontario, le country his death lisposition 3rd ed., 3 ; THE LAW OF WILLS. 3 the will would be invalid according to the testator's domicile. (Theobald, 3rd ed., 1.) The reader is referred to Theobald on Wills 3rd ed., ch. I, and to Jarman on Wills, 4tli ed., ch. I., where the (luestion as to domicile is fully treated. ^f powers istrument domicile "he Wills ointment 1 manner ery will shall, so thereof ment by required shall be f execu- 13.) "^ills Act though A MANUAL OF CHAPTER II. FORM AND CH AKACTEIUSTICS OF A WELL. A will may be defined as a rig-lit given to the proprietor of continning his property after his deatli in sucli persons as he shall name. (2. Bl. Com. 490.) Any instrument executed in tlie manner ro([uire(l Ity The Wills Act of O.itari) may take effect as a will, provided it was the intention of the donor that it sliould not oyjerate till after his death. (Theobald, 3rd cd., 10.) It IS characteristic of a will that it is /// its oun nature amhulatory and revt>caljle durinfj^ the life of the testator, even though it should in terms be made irrevocable. (Tlieohnld, 8rd ed., 11:1 Jarni, 4th ed., KJ.) A codicil is a snpi)lement to a will, or aii addition, made by the testator, and annexed to, and to be taken as pjirt of the testament ; bcino' for its explanation, or alteration, or to make some addition to, or else some snb- i 11 THE LAW OF WILLS. traction from the former dispositions of the testator. (Wms. Exs., 8th ed., 8 ) A will is in its nature different from a deed, an■■.' '1 -J ! CHAPTER XL DESCRIPTIONS OF PROPERTY, TO WHAT PERIOD REFE15AH1.E. I. — Ofj) Law. Wills of Persons who were Dead hefore January 1st, 1860. J. — FrcchoJih. Rule : Every devise of f'reeliold Lands speaks from the date of the will, and des- cri))es only the land then l)elon' to the testator. (Llawk, 14 ; 1 Jarm, 4th ed., .■)l^f.) Rule : Any codicil duly executed has, prima fade, the effect of republishing* the will, so as to make the ^vill speak from the date of the codicil, and include lands ac- quired before the date of the codicil. (Ihi wk, 14: 1 Jarm, 4th ed., lJ):i.) I--. I I; >:■'. 1 ;l : ■ ii ^■■: '[ '^ , i i 'ii. ; 1 1 !li! h ji|; 34 A MANUAL OF But where the testator, by referring to the devise in the will, shows an intention to deal onlj'^ with the identical property devised by the will, and no more, the latter rule does not apply. (Bowes v. Boives, 2 B. and P. 500.) The codicil does not revive a revoked devise. It can only act upon the will as it existed at the time ^ihe codicil is made ; and at that time the devise re- V, ..ed, adeemed, or satisfied formed no part of the will. 2. — Leaseholds. Rule : A bequest of leaseholds prima facie speaks from the date of the will, and does not include after acquired leaseholds, nor a renewed lease. (James v. Dean^ 11 Ves., 383; Hawk, 17 ; 1 Jarm, 4th ed., 320.) But the context may show that the testator intended any after acquired interest of which he might become possessed by renewal, to pass under the bequest. (1 Jarm, 4th ed., 321.) 3. — General Personal Estate. Rule: A bequest of "all my personal 1-- THE LAW OF WILLS. estate," or "the residue of my personal estate," means the personal estate existing at the death of the testator. (Hawk, 17.) This rule did not extend to other bequests of personal estate. 11. — New Law. Wills of Persons Dying after December 31st, 1868. Rule: Descriptions of real or personal estate, the subject of the gift, prima facie refer to and comprise the property answer- ing to the description at the death of the testator. (R. S. 0., c. 109, s. 26.) This rule applies in England to wills made or republished on or after January 1st, 1838. The Wills Act of Ontario, R S. 0. 1887, c 109, s. 26, enacts that " every will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been execu- ted immediately before the death of the testator, unless a contrary intention appears by the will." i fii i^«f. H 1^ M III; ■:i!:ilt|il 3G A MANUAL OF Tliis section applies to the will of every pei'son who lias died since December 81st, 18G8. (Sec. 8.) Effect of Sec. 26 on the Execution of Powers. This section will liave an important effect in caus- ing devises and l)equests to operate as an execution of ])on'ers of appointment created after tJie date of tJie zuill. (a.) The effect of sec. 26 and sec. 29 (which also atlects oeneral powers of appointment : post, chap. XI [.) on general powers of appointment, will l)e to make all general devises and be(juests operate as an execution by anticipation of all general powers vested in the testator at the time of his death, although created by an instrument subse(]uent in date to the will, unless the language of the power be such as to forbid its being exercised hy anticipation. There must be an emphatic reference to f?iture time. . (,b.) Special ))owers of appointment, which are affected l)}^ sec. 26, only created after the date of the will may be exercised by a bequest contained in the will, if the becpiest contain a sufficient descri])tion of the particular property afterwards made the sub- ject of the ]->ovver to show that the testator had the THE LxVW OF WILLS. 87 subject of the poiver in view, which is the best of execu- tion as regcards special powers. Exceptions to sec. 26. (1.) Where the date of the luill as opposed to tlio (leath, is distinctly referred to, the rule is excluded. Such an expression as " now occupied " is sufficient. (Havvk, 20.) (2.) And the rule is excluded where there is a sufficient particularity in the description of the specific subject of ^ift, showinf> that an object in existence at the date of the will was intended ; as a gift of " my brozvn horse," or " that freehokl estate ivJiich I purcliased of Mr. B." (lb.) 'i; m. m r;f j1''11 1 3S A MANUAt OF \h CHAPTER XII. i I !■ I 'I;, fi DEVISES AND BEQUESTS WHEN OPERATING IN EXECU- TION OF POWERS. If the will does not purport to be in execution of the particular power, or of all powers vested in the testator, it is a rule that — Rule : Devises and bequests prima facie do not include property not the testator's own, but over which he had a power of dis- position. (Clercs Case 6 Co. Vl^b ; 1 Jarm., 4th ed., 677.) Exception. If the property subject to the power be 8uffi,cie7itly desciihe^, so that it is clear that the tes- tator had in vieiv the thing of which he had a power to dispose, the devise will operate as an execution of the power. (Hawk 23 ; 1 Jarm., 4th ed., 679, 680.) Denn v. Roake. Rule : If a testator devise " all his THE LAW OF WILLS. 39 lands," or '' all his lands in A," or " all his real estate," and have at the time of the de- vise no lands of his own answering to the description, lands over which he had a power only, will pass by the devise. (Denn V. Roake [H.L.], 6 Bing. 475, E.C.L.R. vol. 9.) Leasehold estates come within this rule. The rule in Denn v. Roake is unaffected by T/ie Wilis Act of Ontario. Where a will refers to part of a subject, or to some of many subjects, over which a testator has a power of appointment, that alone will not make the will operate as an execution of the power as to the parts oi- subjects not referred to in the will. (Hawk. 26.) 3. — New Law. Rule. In wills made or republished on or after January 1st, 1874, general devises of real estate, and bequests of personal es- tate described in a general manner, are construed as including real or personal es- tate which the testator may have power to appoint itt any manner he may think proper J m r.* 'lr{ 40 A MANUAL OF {i,e. " to any objects he mny think proper," and not "by any form of execution "); un- less a contrary intention appears b^ .le will R.S.O., c. 109, s. 29.) I i I This rule applies in EnglanJ to wills made or re- published on or at'tei- January 1st, 1838. Section 29 of The Wills Act of Ontario enacts that " a general devise of the real estate of the testator, or of the real estate of the testator in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manne hall be construed to include any real estate to wnioli such, description will extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention appears by the will ; and in like manner a bequest of the person- al estate of the testator, or any bequest of personal estate, or any personal estate described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description will extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of i-: !' THE LAW OF WILLS. 41 such power, unless a contrary intention appears by the Nfili." It will be observed that this section tnakes a dis- tinction between general and special powers of appoint- ment, only affecting the latter. If a power of appointment has already been exer- cised by deed, but with the reservation of a power of revocation and new appointment, sec. 29 will not cause a mere oreneral devise or be(]uest to operate as an exercise of the power of revocation. (Hawk, 28.) A power to appoint generally hy will is within this section ; (1 Sugd, Poic, 7th ed. 369,) but not a power to appoint in any manner to children, or any other limi- ted class of objects, (flawk, 28 ; Jarm., 4th ed., 688.) If property over which the testator has a power of appointment is described as his own, t'.^., "property which I am possessed of or entitled to," it will not affect the operation of a devise or bequest of such property, as an execution of the power. (Hawk, 28.) The words, " constituting A. B., my residuary legatee," will operate as an execution of all general powers as regards personal estate. (Hawk, 29.) General pecuniary legacies, with no particular fund indicated for their payment, are within the opera- tion of sec. 29, wh^re the proper assets of the testator ,1 i^f ;il :P-' :i.. 42 A MANUAL OF are inadequate, and will include and extend to the personal estate subject to the power of appointment, so far as is necessary to satisfy general pecuniary legacies described in a general manner. (lb.) ;::ii :l;iit THE LAW OF WILLS. 43 SB' ■n-} CHAPTER XIII. " lands," etc.: kinds of propertv included under. Old Law. In wills made before January 1st, 1874, a devise of " lands," or " lands and tenements," or " lands, tene- ments, and hereditaments," does not, prima facie, in- clude leaseholds for years, unless at the time of the devise the testator had no freehold lands answering to the description. (Rose vs. Bartlett Cro. Cas., 293.) But where leasehold property is blended in situa- tion and enjoyment with freeholds, the rule has not been applied so as to prevent the former from passing with the latter under a devise of " lands " or " tene- ments." New Law. Rule : In wills made or rep. blished on or after January 1st, 1874, every o-eneral devise of " lands," " lands in A," etc., prima facie includes leaseholds for years as well as freeholds. R. S. a, c. 100, s. 28. \ " ni ■ '1 ' , • fi Wt 44 A MANUAL OF This rule applies in England to wills made or republished on or after January 1st., 1838. See. 28 of The Wills Act of Ontario, enacts that " a devise of the land of the testator, or of the land of the testator in any place or in the occu- pation of any person named in his will, or otherwise described in a general manner, and any other general devise which would describe a leasehold estate, if the testator had no freehold estate which could be de- scribed by it, shall be construed to include his lease- hold estates, or any of them to which such desription will extend (as the case may be), as well as freehold estates, unless a contrary intention appears by the will." Rule : A devise of ''lands," "real estate," etc, includes re\ erslonaiy interests of what- ever description. {Clmrcli v. Mimday, 15 Ves., ai)() ; Theobald, ord ed., 157.) Chester v. Chester. Rule : A devise of lands 'not settled," includes an unsettled reversion in settled lands. [Chester V. C/iester, .'5 P. W., 50 ; Theobald, ;U'd ed., 15G.) I -i: I m ; 1 H:l THE LAW OF WILLS. 45 Where a testator speaks of liis property " not settled " or " out of settlement," the Court intends him to mean 7io^ ofJicnrise disposted of. (Hawk, 35.) Rule; A genenil devise of '-my lands." 'Miiv lands in A," •' mv real estate," etc. inclndes and passes the lei^-al estate in lands of which the testator was seised as trnstee or mort.2:a2^ee, unless an intention a])i)ear to the contra i-y. {^Ih-ayhrooke \ Inskip, 'ally speakinf'', uul GaRVEY v. HlHHERr. Rule: Where a o-ift tocliildreii describes them as oonsistino- of a specified number, which is less than tlie nnml)er in existence at the date of the will, the (V)ui't rejects the specified number on the presumption of mistake, and all the children in existence at the date of the will are held entitled ; unle-ss it can l)e inferred who were the par- ticular children intended. {Garvey v. Hibbcrt, 19 Ves., 124 ; 2 Jarm , 4th ed., ISJ) ; Theobald, Hrd ed., 22S.) And the rule liokls j>'oocl where the legacy i.s of a given amount to cacJi child, although the total amount of the gift is increased by the construction ado|)tod. { Garvey v. Hihbcrt.) The rule also applies to brothers oi' sisters, (Lee v. Pain, 4 Hare, 250); grandchihlren, ( WyigJitson v. Calvert, 1 Johns & H., 250 ; and servants, (Slceeh v. TJiorington, 2 Ves., 501.) THETFORD SCHOOL CASE. Rule : Where sums amountinu" touether to the wMe rents and profits of certain land 'i < S'l! \i 62 A MANUAL OF at the time of the devise, are given to chari- table purposes, this is in effect a dedication to charity of the land itself, and if the rents increase in amount, the excess arising from such augmentation will be appropriated to charity, and not go, by way of resulting trust, to the person or persons on whom the law, in the absence of disposition, casts the species of property devised. ( Thetfoi^d School Case, 8 Co. Rep., 130 ; 1 Jarrii., 4th ed., 573 ; Theobald, 3rd ed., 280 ; Hawk, 64.) Where the sums given to various charitable objects do not exhaust the whole annual value of the lands at the time of the devise, the objects will not take the increased rents or any portion thereof. (1 Jarm., 4th ed., 573; Theobald, 3rd ed., 280 ; Hawk, 65.) And where the whole rents are not specifically appropriated, but the will shows a general intention on the part of the testator to devote the whole rents of an estate to charity, the general charitable inten- tion will be carried out, and the whole of the increas- ed as well as the original rents will be appropriated to ciiarity. (Theobald, 3rd ed., 280 ; Hawk, 66.) And wiiere the whole rents at the time of the THE LAW OF WILLS. 63 devise are disposed of by the will, but part only given to charitable objects, and the remaining part, under the name of surplus or overplus to some other object not charitable, the increased rents go to the latter object. {Major, etc. of Beverly v. Attorney- General 6 H L. Ca., 310. ; Theobald, 3rd ed, 280 ; Hawk, m, 67.) A proportionate distribution of the increased rents will be made, where a special intention appears in the will to that effect. (Hawk, 67.) he 64 A MANUAL OF I ;i„ 1.^:: CHAPTER XVII. CHILDREN, ETC., WHEN ASCERTAINED. Rule : A devise or bequest to the children of A., or of the testator, means, prima facie , the children in existence at the testator s death : provided there are such children then in existence. (2 Jarm., 4th ed. 155, 15() ; Theo- bald, :h-d ed.,229 ; Hawk, 08.) The rule extends to gifts to f^randchildren, issue, brothers, nephews, and cousins, and although the class of cliildren entitled may be further limited by an ad- ditional description, the rule applies. It also applies to gifts by way of appointment. (Hawk, 69.) Exceptions to Rule. Where the description is such as to make the gift not one to a class, but to particular persons individu- ally, the rule does not apply. {Bolton v. Bailey, 26 Grant, ch. (U. C.) 361.) Children born after the testator's death will be ad- II : I THE LAW OF WILLS. 65 mitted under a gift to children as a class if the inten- tion clearly appear. (Theobald, 3rd ed., 237.) If words importing futurity be added to a bequest, such addition will not alter the construction where the gift is not immediate. (Theobald, 3rd ed,, 236, 237.) In the case of an immediate gift, the addition of words of futurity is considered as intended to pro- vide for the case of children born after the date of the will and before the testator's death. There are, however, authorities against this construction and the point does not seem to be entirely settled. (Hawk, 70, 71.) In the United States it is generally settled that words of futurity will let in after-born children ; and that the use of words of futurity only does not exclude children already in existence. If there are no objects in existence at the deatli of the testator or period of distribution, the rule does not apply, and all children whenever born may be included, unless an intention appear to the contrary. (Theobald, 3rd ed., 230, 233 ; Hawk, 71.) Rule : A devise or bequest of a corpus or aggregate fund to children as a class, where the gift is not immediate, vests in !' f 1 6G A MANUAL OF (' illiisr' .! ■ :| '. i f. : i i h all the children in existence at the death of the testator, but so as to open and let in chil- dren, subsequently coming in esse before the period of distribuiion. (Devisme v. Mcllo, 1 Bro. C. C. 537; 2 Jarm., 4th ed., 156, 157; Hawk, 71.) This rule extends to gifts to grandchildren, issue, brothers, nephews, cousins. (2 Jarm., 4th ed., 159, 160.) It also applies to gifts in the nature of powers, and to gifts in exercise of powers of appointment. (Hawk. 72.) Where the gift is of a certain sum to each of a class of objects at a future period, it is confined to those living at the testator's death, for if after-born chil- dren were to be admitted the distribution of the tes- tator's personal estate would have to be postponed until it could be ascertained how many legacies of the given amount would be payable. {Ringrose v, B ram- ham, 2 Cox 384; Theobald, 3rd ed., 234; Hawk, 73.) Objects born after the period of distribution may be included by express words to that efi'ect; but words importing futurity do not extend the rule to objects THE LAW OF WiLLS. 67 born after that period. (Theobald, 3rd ed., 236, 237 ; Hawk, 73, 74.) The rule applies where a testator has only a rever- sionary interest expectant upon a life estate previous- ly subsisting, and then disposes of the fund to take effect after the death of the tenant for life. ( IVaik- er V. Shore, 15 Ves., 122); but where there is an innne- diate bequest of an aggregate fund, and part of it is reversionary, objects born before such portion of tha fund actually falls into possession are not entitled to share in it. {Hugger v. Payne, 23 Bea., 474).) Rule : When there is a bequest of an aggregate fund to children as a class, and the share of each child is made payable on attaining a given age, or marriage, the period of distribution is the time when the first child becomes entitled to receive his share, and children coming into existence after that period are excluded. ( IPhitbread' V. Lord St. John^ 10 Ves., 152 ; 2 Jarm., 4th ed., 160 ; Hawk, 75.) It appears that this rule applies to gifts to all classes of relatives embraced in the preceding, rules. i! -• 'i i I f': ■'* ()8 A MANUAL OF The lule does not apply to bei^uests of a certain sum to eacJi of the children of a person at a given age only those in existence at the testator's death being entitled. The rule applies to cases where the share of each child is made payable on an event personal to him or her, e.g., where a share is payable at 21, or, on death under 21, leaving issue. {Barnngton vs. Tristraui^ 6 Ves., 344.) The addition of words of futurity does not prevent the application of the rule so as to let in children born after the first share has become payable ; but the rule may be excluded by inference from the context. The rule is not applicable in the case of a gift to children when the shares are made payable on the youngest attaining a given age, and all childi-en, whenever born, are admitted when the payment is postponed till the happening of the event, unless the context sliows an intention to the contrary. (2 Jarm., 4th ed., 1G5 : Hawk, 78.) Rule : A devise or bequest to children '-'bornr or to children ^'living^'' at a given period includes a child en ventre sa mere at THE LAW OF WILLS. m that period, and born afterwards. {Boe v. C/ark, 2 H. Bl., 899 ; 2 Jarm., 4th ed., 185 ; Theobald, ;}rd ed., 2U ; Hawk, 79.) CHAPTER XVIIl. Children, &c,, Definitions of. Rule : A gift to children, sons, daug*hters or issue, means, prima facie, iegiiimate chil- dren or issue, excluding those who are ille- gitimate. (2 Jarm., 4th ed., 217; Theobald, ard ed., 214 ; Hawk, 80.) The rule applies where the words next of kin are used. (Theobald, 3rd ed., 214.) The context may, however, show illegitimate children to have been in- tended. Legitimacy is a question of fact, and although a child may have passed as legitimate at the date of the will, such child cannot share in the gift to child- ren, if afterwards discov^ered to be illegitimate (Hawk, 80.) Exceptions to Rule. 1. Where the gift is to the cliildren of a person dead at the date of the will, and there are living at TTTT ?0 A MA NT A I. OK I I V : I :;i ; I . tliat (late illcgitimato cliildren only of tliat pei'son, and those facts were known, or can 1)e presunKMJ to liave ]»een known, to the ti'st.itor, tliere is a necessary inference tluit, under the word "children" tlie ilh'Lrit- iniate chihlren were intendeA\V OF WILLS. Ri'LE : A o'ift to the '^eliildren '' of ;i jx-r- son (Iocs not iiicliide iVi'Miidchildi-cii. (/hnvcn A])|). (^1.. S!Mi: \.L ("IV! S, i) 4 1.. J.. (.). I i. i;n: J) Wms. Exs.. Nth ed., 1102.) ^('1 le i'nl(3 jipplies to La-jiiitloii ;i(1 rcn so as to ex- clude o-reat t^randchildren. {Orfoni \. Churcliill, \\ Ves. & B., m : Wins. Exs.,Sth ed., 1107.) Bvifc " children " may be construed to mean " jSfraiul- cldldren," wliei'e tlie o'ift is to tlie ehildreii oTji person dead at the //// v. Coo):, 32 Ben., 041 ; Shn'Mtt V. Mnuntf.^ir, 42 L. J., Ch. dm ; S Ch. f)2S : Theobald, 3rd ed., 242.) n 72 A MANUAL OF And a ^reat grand-nephew is not included in a gift to "grand-nephews," (Warring v. Lee, 8 Bea., 247) but these extended meanings may be gathered from a context, though not easily. Rule : A gift to " brothers ;" '' sisters :"-- includes half-brothers and half-sif^teis. (2 Jarm., 4th ed , 154) and so with regard to every other degree of relationship. (Ib.j Cf. Leviticus, XVIII. 9. " Thy sister, the daughter of thy father or the daughter of thy mother." Rule: A gift to "cousins" privm facie means onlyyfn^/ cousins. [2 Jarm., 4th ed., 152 ; Wms. Exs., 8th ed., 1109.) Rule: A gift to "issue," when not res- trained by the context, inchides descendants of every degree. {Davenport v. Hanbury, H Ves., 257 ; 2 Jarm., 4th ed., 101.) SiHLEY V. Perry. Rule : Where there i.s a gift to a person, and then ji gift to the issue of that person, sucli issue to take only the parent's share, the word " issue" is cut down to mean THE LAW OF WILLS. 73 "children." [Sibhy v. Perry, 7 Ves., 522 ; Ra/pk V. Carrick, 48 L. J. Cli., 807, 11 Ch., D. 873 ; 2 Jarm., 4th ed., lOa.) But where there is a ^ift over the meaning of "issue," even when collocated vvitli "parent," will frequently be widened to mean decendants. {Ross v. Ross, 20 Bea., 645 ; 2 Jarm., 4th ed., 104.) Rule : Where there is a g-ift to the •^ family " of a person Avho has children living- at the testator's death, the word means primarily the children of that pei'son and does not include efrandchildren or y-reat grandchildren {Barnes v. Patch, 8 Ves., r)04; re Parkinson, 20 L. J., Cli. 224.) But the word "family" is extremely flexible, and may be controlled by the context. (V. 2 Jarm., 4th ed., 91-97: Theobald, 3rd ed., 250-252.) An illegitimate child, treated and recognized as a child, would be entitled to participate as part of the "family." {Lamhc v. Eames, L. L , "'^, Eq. 267.) In devises of real estate the word " family' " as a word of limitation, would in general give an estate tail, the word being construed as equivalent to " heir of the body. ' {Luois v. Guldsinid, 29 Bea., 657.) A MAXr.VL OF CHAPTER I)ES<'Hll'TrONS IIKLATIVE TO SUCCESSIOX TO PERSONAL ESTATE. A bequest l»y a testator to his heir, or to the lieir of another person, does not cluuige tlie proper uiean- m^ of the word — heir-at-law — because tlie subject of. the bequest is personal estate. But — Rule : A bequest of peisoiuii estate to "A. or his heirs " is construed as a gift by Avav of substitution to the lieirs, in the event of the death of A. before the period of flistribution. (IJoody v. liiooius^ 9 Hare App, ,'i2.) The word " heirs " is held to mean the persons who would be entitled to the personal estate of A. by vir- tue of 'Hie Stdtnte of Distributions, if he had died intestate. (Theobald, 3rd ed., 257.) And on a residuary gift of real and personal estate to the testator's widow, an :> 7 ^ y^ Hiotographic Sciences Corporation 33 WEST MAIN STRCET WEBSTER, NY. M5S0 (716) 873-4503 ^ !C» iV iV N> 6^ "> Zt ]■ U. 82 A MANUAL OF By virtue of section 3, of " The Married Womerts Property Act,*' a married woman is now capable of acquiring by will or otherwise any real or personal property, and holding the same as her separate pro- perty, in the same manner as if she were a. feme sole, without the intervention of any trustee. (R.S.O., 1887, c. 132, 8. 3.) THE LAW OF WILLS. 83. CHAPTER XXI. .», GIFT^ WITHOUT WORDS OF LIMITATION. Rule : A devise of the *' use and occupa- tion " of land passes an estate for life and is not confined to a personal use and occupa- tion. {Wkittome v. Lamb, 18 L. J. Ex., 205; 12 M. & W., 813 ; Rabbet h v. Squire, 24 L. J., Ch. 203 ; 19 Bea., 70 ; 1 Jarm., 4th ed., 798.) The word " occupy " does not prima facie mean personally occupy. Rule : A devise of the " rents and profits,'* or of the " income, " of land is equivalent to a devise of the land itself. (1 Jarra., 4th ed., 797.) Previous to the Ist January, 1874, a devise of the " rents and profits " would pass only an estate for life, unless words of inhentance are added, but in a will made or republishctl after that date, such a devise would, by force of the SOth section of " The Wills Act of Ontario," pass the fee simple. >J:> 84 A MANUAL OF ,1 ' !!l !< ■■! ;.:i ; , Rule : A trust to raise and pay money out of the ''rents and profits" of land is sufficient to create a charge on the corpus of the land where the purposes of the trust require it. (Lew in, 8th ed., 419 ; Hawk, 120.) But it' it is evident from the whole context that by " rents and profits " were intended the annual rents, the rule will not apply. (Lewin, 420.) Recourse may be had to the corpus by sale or mortgage in order to raise the portion. (lb., 419.) Rule : A bequest of the income of per- sonal estate, without limit as to time is equivalent to a gift of the principal. (Theo- bald, 3rd ed., 351 ; Hawk, 123.) Rule : The bequest of an annuity, not existing before, simpliciter, generally means an annual sum during the life of the annu- itant (Re Taber^ 51 L. J., Ch. 721), and noth- ing more. (Blight v. Harmoll, 51 L. J., Ch. 163; 19Ch. D. 294.) But where there is a direction to purchase an annu- ity, or a dedication of a fund out of which it is to be ! •' THE LAW OF WILLS. 85 purchased, or where the annuity is dealt with as being in existence and operative beyond the life of the first annuitant, and no other period can be fixed for such further duration short of making it perpetual, the annuity will be in perpetuity. It is, in fact, a bequest of such a sum as will produce the income or annuity intended for the legatee, who may elect to take that sum or have the annuity ; and in the even of his death before the annuity is pnjrchased the sum which would have been needed for its purchase will go to his representatives. (Wms. Exrs., 8th ed., 1200, 1201.) Hit m; ||l {Hn ■ 1 ' i ,' , 1 : ; ^ ■j ■ i '■ ■ i r : ' ' ' • 1 :* : ':-'. 1 , p i 1 1 \ ' '' ' i 86 A MANUAL OF CHAPTER XXII. DEVISES WITHOUT WORDS OF LIMITATION. In wills made before 1st January, 1874, a devise of lands to any person, simpliciter, would confer as large an estate as the testator had in the land, unless a contrary intention was expressed. (R.S.O. 1887, c. 109, s. 4.) And in wills made after 1st January, 1874, it is a rule tliat — Rule : A devise of lands, without any words of limitation, passes the fee simple, unless an intention appear to the contrary. Section 30 of The Wills Act of Ontario enacts that " where any real estate is devised to any person with- out any words of limitation, such devise shall, subject to The Devolution of Estates Act, be construed to pass the fee simple, or other the wliole estate or interest, which the testator had power to dispose of by will, unless a contrary intention appears by the will." This section applies only to devises of previously existing estates or interests, and not to the devises of an estate created by the will. E.g.; a devise of a W3 THE LAW OF WILIA 87 rent charge, already vested in the testator, passes the fee simple without words of limitation ; but if the rent charge is not vested in the testator at the time of the devise, without words of limitation, it only con- fers a life estate. (Hawk, 139.) A devise of a testator s " estate " includes not only the corpus of the property, but the whole of his inter- est therein. (2 Jarmu, 4th ed., 275.) \ 1 1 '' .'.: 1 "i 'I . t w ft, , ■ I 'l\ tti ill u 'J i^ t-F !i i! 88 A MANUAL OF CHAPTER XXm. ESTATES OF TRUSTEEa Estates taken by trustees under a devise to them ma}^ be considered under two heads. I. As to the quantum of estate and interest, benefit cial as well as legal, vested in the trustees for the ac- tive purposes (if any) of the trust reposed in them. RuiiE : A devise to a trustee, in trust to pay the rents and profits to A., vests the legal estate in the trustee. (Lewin, 8th ed., 210 ; Theobald, 3rd ed., 322.) A devise to a trustee, in trust to permit^ or, to permit and suffer^ k. to receive the rents and profits, vests the legal estate in A. (Lewin, 8th ed., 210 ; Theobald, I' -d ed., 322.) A devise in trust to " pay unto or permit and suffer." A. to receive the rents, vests the legal estate in A (Lewin, 8th ed., 212 ; Theobald, 3rd ed., 322.) THE LAW OF WILLS. 89 But a devise in trust to permit A. to receive the net or clear rents and profits, vests the legal estate in the trustee ; for he is to receive the rents and pay thereout the land tax and other charges on tiie estate and hand over the net rents only to the person en- titled. (Lewin. 8th ed., 211 ; Theobald, 3rd ed., 322.) And by sec. 33 of The Willi Act of Ontario it is declared that " where any real estate is devised to a trustee or executor, such devise shall be construeil to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years absolute or determinable, or an estate of freehold is thereby given to him expressly or by implication." The meaning of this section is that any devise, under which before the passing of the act a trustee would have been held to take an indefinite or un- certain term of years, shall now be construed to pass the fee. (Lewin, 8th ed., 220.) II. As regards the disposition of so much of the legal estate as is not required for the active purposes of the trust. Ml tit Rule : Wherever a trust is created, a legal estate sufficient for the execution of the 90 A MANUAL OF ' f iu^ 1 ■ !l ^ll trust shall, if there are no words of inheri- tance, if possible, be implied. (Lewin, 8th cd., 220.) Rule: The leg-al estate limited to the trus- tee shall not be carried further than the •complete execution of the trust necessarily requires. (lb. ; Hawk, 143.) These niles are somewhat controlled by the posi- tive enactment of The Wills Act of Ontario. By section 34 it is enacted that — '' Where any real estate is devised to a trustee without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, is not g-iven to any person for life, or such bene- ficial interest is given to any person for life, l)ut the purposes of the trust may continue beyond the life of such person, such devise shall, subject to The Devolution of Estates Act^ be construed to vest in such trustee the fee simple or other the whole legal estate -m THE LAW OF WILLS. 91 which the testator had ]X)\ver to disi)ose of by will in such real estate, and not an estate determinable when the jmrposes of the trust are satistied. (R S. O. 1887, c. 101), s. 34.) In comparing the 33nl an 1 34th sections it will be observed that the former, which speaks of a devise passing " the fee simple or other the whole estate or interest of the testator," relates to the quan- tity of estate to be taken by the trustee for the purposes of the trust: w^hile the latter, which declares that a devise shall vest in trustees " the fee simple or other the whole legal estate " in the premises devised, relates to the disposition of the legal estate not require*! for the purposes of the trust. Section 33 enacts that in no case shall trustees or executors be held, for the purposes of the trust, to take an indefinite term of years ; section 84 enacts that where the estate of the trustees is not expressly limited, they shall in all cases take either an estate determinable on the life of a person taking a benefi- cial life interest in the property, or the absolute legal estate in fee simple. i - It!(,'| 92 A MANUAL UF CHAPTER XXIV. PRECATORY TRUSTS. Rule: Words of Recommendation, Re- quest, Entreaty, Wish, or Expectation, addressed to a devisee or leg-atee, are prima facie considered as obligatory, and will make him a trustee for the person in whose favour such expressions are used. (1 Jarm., 4th ed., 385 ; Lewin, 8th ed., 130.) Each of the following phrases in wills has been held to create a Precatory Trust : — "•Advise him to settle," " well assured" " have full assurance and confident hopel' " aut/torise and em- power;' " beg" " in the full be/ie/" " most heartily beseech" " confide^' " have the fullest confidence" " in consideration the legatee has promised to give," " under the firm conviction," '" of course the legatee will give," "declare," "desire," "direct," '' ^o not doubt" "dying request," " dying wish," " empower" " entreat," " hope," THE LAW OF WILLS. 08 full em- rtily "in ler *' last will," " well know'' " onier and direct^' " recoui- mend'' " request," " trusting," " trusting and confiding" *' well know',' "will," " zuill and declare',' '' ivill and desire',' " wisA and desire," " wish and request^' " to be applied as I have requested him to do." (Lcwin, 8th ed., 130, 131 ; Theobald, 3rd ed., 357 ; Hawk, 160-1 C2 ; Stroud's Judicial Diet., 606-608.) It is essential to the creation of the trust that there should be (1) a certain subject, and (2) a certain object of the trust to be so created, (Stroud's Judicial Diet., 606.) A trust is created in those cases only where a testator points out the objects, the property, and the way in which it shall go. (Lewin, 8th ed., 132.) Where the words of the will show that the testator did not intend the desire or wish to be imperative, but that he meant to leave it to the devisee or legatee to act thereon or not at his discretion, no trust is created. (Hawk, 163.) And the Court has refused to establish the trust where the nature and quantum of the subject (that is, of the property claimed to be bound by the trust), and the nature of the objects, has been uncertain. (Lewin, 8th ed., 133, 134.) : \ 1- 94 A MANUAL OF CHAPTER XXV. HEIRS, HEIRS MALE, ETC. Rule : Under a devise to " heirs male (or female) of the body " of any person, the heir male of the body taking by purchase need not be heir general. ( Wills v. Palmer^ 5 Burr. 2615 : 2 Jarm., 4th ed., 67 ; Hawk, 170.) E.g. : A devise to the " heirs male of the body " of A., who has died leaving a younger son, and a daugh- ter of a deceased elder son ; the younger son will take an estate in tail male by virtue of the devise, although the granddaughter is heir. (lb.) Rule: "Heirs male of the body," or " issue male " mean deeendants in the male lineonlj^ i.e.^ males claiming through males. (Fitzherbert v. Heathcote^ cited 4 Ves., 794 : Lambert v. Peyton^ 8 H. L. Ca., 1 ; Co. Lit., 25a : Theobald, 3rded., 254 ; Hawk, 172.) THE LAW OF WILLS. 95 Rule : " Heirs male," in a will, as words, of limitation, are construed to mean ' heirs, male of the body," and will create an entaiL (Lewin, 8th ed., 118; Theobald, 3rd ed., 306; Hawk, 173 ; 2 Bla. Com., 115.) Archer's Case. Rule : Under a devise to A. for life with remainder to the heir male (in the singular) of his body and the heirs male of the body of such heir male, A. takes an estate for life only, and the heir male of his body takes an estate in tail male as purchaser. (Arch- ers Case, 1 Co. ^^ ; 2 Jarm., 4th ed., 326.) Rule : A devise of real estate to A. and his heirs lawfully begotten confers only an estate tail, " heirs " being construed '' heirs of the body." (2 Jarm., 4th ed., 325 ; 2 Bla. Com. 115 ; Co. Lit, 27a.) But a limitation to " lawful Jieirs " will not, stand- ing alone, create an entail, but gives the fee. (2 Jarm., 4th ed., 325.) W: ■I ■t!| ' 4' ili; J :i 96 A MANUAL OF Prior to January 1st, 1874, a devise of real estate to a person and his heirs, followed by a limitation over to take effect on a general failure at any time of issue or heirs of the body of that person, vested in him only an estate tail ; the word " heirs" being con- strued to mean " heirs of the body." But by section 32 of The Wills Act of Ontario, the expressions " die without issue," or " die without leaving issue," or " have no issue," or any other words which import either a want of failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and " heirs " cannot be restrain- ed to mean " heirs of the body." Rule : If real estate be devised to B on failure of heirs of A , and B. is capable of being" heir to A, the word "heirs " is con- strued to mean "heirs of the body," since otherwise the devise to B. could never come into operation. [Harris v. Davis 1 Coll, 423 ; Her v. Elliott, 32 U. C. Q. B., 434 ; Jardine v. Wilson^ Ib„ 498 ; Tyrwhitt v. THE LAW OF WILLS. 97 Dewson, 28 Grant, Ch. [U.C.J 112; Theo- bald, 3rd ed., 302.) Necessauy Implication. Rule : If real estate be devised after the death of a certain person to the heir-at-law of the testator, and the will contains no dis- position of the property during the life of that person, he takes an estate for life by implication {Stevens v. Hale, 2 Dr. & Sm., 22 ; Crauley v. Dixon, 23 I5ea., ol2 ; 1 Jarm., 4th ed., 532, et seq ) This rule is applicable to bequests of personal estate including terms for years. (1 Jarm., 4th ed., 544.) Rule: A devise of real estate to ''A. cr his heirs " gives to A. an estate in fee, the word ''^r" being read *'and." (1 Jarm., 4th ed , 505 et seq. ; Wms Exs , 8th ed., 1089.) The rule applies to a devise to " A., or the lniis of his body." And "where any real estate is devised by ;iny tes- tator, dying after the 5th day of March, 1880, to the ■ :- -yiv II Iv IS Hi [ m In' '• if> !:| 98 A MANUAL OF heir or heirs of such testator, or of any other person, and no contrary or other intention is signified by the will, the words " heir " or " heii'S " shall be construed to mean the person or persons to whom such real estate would descend under the \nw of Ontario in case of an intestacy." (R S. O., 1887, c. 109, s. 81.) It would appear that a devise to " A. or his heirs '' would lapse by the death of A. in the testator's life- time, unless A. happened to be a child or other issue of the testator. (R. S. 0., 1887, c. 109, s. 36.) Not so in the case of a devise to " A. or the heirs of his body." A. dying in the testator's lifetime but leaving issue who would be inheritable, any of such issue living at the testator's death, for the devise will take effect as if A. had died immediately after the death of the testator, unless a contrary intention appears by the will. (lb., s. 35,) But where tiiere is a bequest to " A. or his personal representatives," or to " A. or his heirs " the word " or" generally speaking, implies a substitution, so as to prevent a lapse. (Wms. Exs., 8th ed., 1215, 1216.) THE LAW OF WILLS. 99 I;'; CHAPTER XXVI. EVfATE.S TAIL, ETC. to Estates Tail, Cy Pres. Rule : Where a testator has devised lands in a manner transgressing the limits of per- petuity. (Q. v., 1 Jarm., 4th ed., Ch. IX, sec. II.), andtheCoiirt can, by giving" estates tail to any of the devisees, carry the pj-o- perty in the precise course marked out l)y the testator, supposing the estates left to themselves, it will do so. {Huvibcrston v. Htimberston^ 1 P. Wms., oo'i; Parfitt v. Hitmbcr^ L. R. 4 Eq., 443 ; Theobald, 3rd ed., 411.) E.g. : If real estate he devised to A. I'jr life, witli remainder to his first and other sons successively in tail, with remainder to his daughters as tenants in common in tail, with cross-i-emainders between them, and A. is unborn at the death of the testator, the limi- 100 A MANUAL OF tations to his children being void for remoteness, A. is held to take an estate tail, to effect as far as may be the intention. Words of Limitation. Rule : In devises of real estate, the words "heirs of the IxkIv," following^ a gift to the ancestor, are properly words of limitation, and create an estate tail, .not withstand! ng^ the addition of inconsistent words or ex- pressions. (Theobald, 3rd ed , i\OG ; Hawk, 184.) This rule holds good unless the testator has ^iiM- ed the words in question as having been used in some other sense. If there are «vords in the will, implying that the heirs are to take distributively or together, and not successively, they do not exclude the rule, but are re- jected as repugnant. (Hawk, 185.) Wor H.L. Ca., 823: Bozucn v Leu is, 54 L.J.Q.B , hh ; 2 Jarm., 4th ed., 414, et seq.) This rule does not extend to bequests of personal estate. {Kn'njUt v. Ellis, 2 Bro. C.C, 570. LtES v. MOSLEY. * Rule : Where there is a devise to one for life, with remainder to his issue as tenants in common, with a limitation to the heirs . 1:11 I 102 A MANUAL OF ; I t gcnct-al of the issue, the issue take as pur- chasers in fee. (Lees v. Moshy, 1 Y. & C, 589: Ralph v. Canick. 11 Ch. D. 882, 885; Morgan v. Thomas. 51 L J, Q.B., 289, 456 ; 9 Q.B.D. G4r5) Words of limitation, in fee, or in tail and of dis- tribution added to the word " issue," make it a word of purchase, whether there is a limitation over in default of issue or not Words of distribution alone, without superadded words of limitation, if the issue can take the fee by the terms of the devise, do not exclude the rule. (Hawk, 193.) As to the meaning of " issue " in relation to personal estate V. 2 Jarm , 4th ed., 5G7-.581. Wild's Case. The word " children " in its primary sense, is to be read as a word of purchase, and not as a word of limitation. (Bowen v. Lewis, 54 LJ., Q.B. 63), but — Rule : A devise of real estate to ''A. and his children," he having none at the time of the devise, tlie word children must be taken as a THE LAW OF WILLS. 103 word of limitation, and A. would take an estate tail. {Wilds Case, G Co. 17; Wms. Exs.. 8th ed., 1097: 2 Jarm., 4th ed., .-5S9 ; Hawk, 198.) The principle of Wildes Case applies even .where there is a child of A. <'ti. vi'ntre sa mere at the death of the testator. (Roper v. Roper, 36 L.J., C.P. 270 37 IK, 7.) But the Courts have construed the word ** children " as a word of limitation, notwithstanding the existence of children at the date of the wmII. (2 Jarm., 4th ed., 395.) The rule does not apply to a bequest of personal estate, in which case the parent and children, if any, take concurrently ; if there are no children the parent takes the whole. (Hawk, 199.) Gift over on Failure of Issue. Rule : A devise of real estate to A. for life, or to A. indefinitely, followed by a gift (ysQY ovi general failure of issue, vests in A. an estate tail. (Re Babcock, 9 G-rant Ch. (U.C.) 427.) ■ % :% 104 A MANUAL OF The rule has been changed since 1874, and A. will now take only an estate for life, in the case of a devise for life ; and where the devise is to A. indefinitely, he will take an estate in fee simple with an executory devise over on death without issue living at his death ; and a devise for life with the like gift over, will con- fer only an estate for life. As regards personal estate, a bequest to A., with a gift over on general failure of his issue, vests the property in A. absolutely, the gift over being void for remoteness. Implication of Cross-Remainders. KuLE : Under a devise of real estate to several persons in tail, being tenants in common, with a limitation over for want or in default of suck issue, cross-remainders in in tail are to be implied among the devisees in tail. (2 Jarm., 4th ed., 554 ; Heron v. Walsh^ 3 Grant Ch. (U.C.) 606 ; Travers v. Gustine. 20, Grant Ch. (U C.) 106 ; Ray v. Gould, 15 U.C , Q.B., 131.) Where the devise was to three and the heirs of THE LAW OF WILLS. 105 their bodies respectively, and in default of such issue of any of them over, it was held that the remainder over did not take effect until failure of all the issue of each of them, and cross-remainders were therefore implied. {^Powell v. Howetls, L.R., 3 Q.B., 654.) The rule applies whether the devise be to two persons or a larger number, though it be made to them " respectively" and though in the devise the testator has not usetl any words or expressions denot- ing that the ultarior devise was to comprise the entire property, and not undivided shares. (2 Jarm., 4th ed., 555.) And the rule applies though the ulterior devise is on failure of issue at a particular period, (lb.) The rule also applies, in regard to executorj'^ trusts at least, though there be an express direction to insert cross-remainders among anot/ier class of objects, or a limitation over among some of the same, objects ; and even in direct devises an express limitation of cross- remainders among another class of objects has been held not to repel the implication. (lb.) The word " remainder," following a devise to sev- eral in tail, will raise cross remainders among them. (lb.) It is no objection to the implication of cross-remain- ri 111 ■ii sy r-.f 106 A MANUAL OF ders that tliere is an inequality among the devisees whose issue is referred to; some of them being tenants in tail, and other tenants for life, with re- mainder to their issue in tail. (lb.) A devise to the children of k. for li/e, and/o^ want and in default of such issue then over, creates cross- remainders by implication for life among such devisees. (lb.) The Wills Act of Ontario does not seem to affect the implication of cross-remainders, as section 32 ex- pressly excepts out of the statutory rule of construc- tion cases in which a contrary intention appears by the will, by reason of a preceding gift being, without any implication arising from such words, a limita- tion of an estate tail to such person or issue, or other- wise. Here an express estate tail is, by the prior de- vise, given to the person whose issue is referred to by the words, " in default of such issue," etc., from which the cross-remainders are implied ; and hence it is clear that the above rule of construction remains un- touched, by the enacted doctrine. And a bequest of personal estate to several persons, as tenants in common for life, with a gift over on the death of all, or on the death of the survivor creates cross-remainders by implication for life among such legatees (Hawk, 202.) THE LAW OF WILLS. 107 Fairfield r. Mougax. Rule : If real estate be devised to A. in fee simple witli a limitation over in the event of A. dying under 21 ^r without issue, the word "or " will be read "and," and the gift over will be construed to take etfect only in the event of A. dying under 21 ami^ without issue. [Fairfield \. Morgan, 2 B. & P.N.R., 38 ; Re Babcock, 9 Grant Ch., (U.C.) 427 ; Hawk, 203 ; 1 Jarm, 4th ed., 505, 507 ) The principle of this rule would not be extended at the present day. • The rule does not apply where the devise to A. is of an estate for life (Hawk, 204.,) or of an estate tail. .(Theobald, 3rd ed , 491.) ^' > 108 A MANUAL OF II- M CiiAPTER XXVIL DEATH WITHOUT ISSUE, ETC. When the words " die without issue " occurred in wills made prior to January 1st, 1874, they were con- strued to mean the death of the person spoken of and failure of his issue at the time of his deatli or at anif time afterwards. This held good as retrards both real and personal estate. But the context might have shown that the testa- tor intended the meaning of those words to be con- fined to a failure of issue at the time of his death. E.fi. : Where a testator had devised property to A, and his heirs, and if A. died without issue, the pro- perty was to go to B. upon the death of A., the latter words restrained the gift over to a failure of issue at the death, and A. would have taken an estate in fee simple with an executory devise over, and not an estate tail. And where there was a bequest of personal estate to several as tenants in common, with a gift over of i, i; THE LAW OF WILLS. 109 the share of anyone dying without issue to the «/tr- virors or survivor, the words " die without issue would be restrained to a failure of issue at the death of the person whose share was spoken of. But, if, in this case, there had been a devise of real estate instead of a bequest of personal estate, the devisees would have taken estates tail. And when there was a devise to A. and his heirs, with a gift over if A. should die under twenty-one, or, having attained twenty-one, should die without issue, the correspondence between the two events on which the limitation was to take effect, was sufficient to res- train the dying without issue to a failure of issue at the death. (Hawk, 205, 213.) The words " die without leaviu». 115 interest : the words, in such a context, be- ing- equivalent to ••it" the event shall hap- pen. [Parker v. Hodi^son, oO L.J. V\\. 51)0 ; Bo/tou V. Pnu/cy. 2(J Grant Ch. (U.C. j )M\\ ; Wms. Exs., 8th el, 1237 ; 1 Jarm., 4th ed., 8^7: Hawk. 22:i.) And where there is a testamentary gift to A., " if," or " when," or " provMed," or " in ease," or " so soon as " (phnises which are s\'nonynious, Slirimpton \\ Shrimptou, 31 Bea., 425), a certain event happens, e.g., attaining a stated age, — such a gift, standing un- aftected by the context, confers only a contingent interest, and reijuires the happening of the event to ffive it validity. But with the aid of a context sucli words may, without «lirtitnilty, not «lefer the vesting of the subject matter of the gift, but merely refer to the futurit\' of its possession. (1 Jarin., 4th ed., 805, 809, 816, 842, S.54, 8(i0 ; Hawk. 225.) Where the gift is to a class " /rAo,' or " anl' sliall at- tain a certain ago, the rule (nearly universally applied) is to regard the attainment of the age as part of the des- cription of the beneficiary, and to construe the gift as contingent, u[)on tiu- gn>und that no one could claiiu who could not predic.ite of himself that he was of the IIG A MANUAL OF age require*!. (1 Jarm., 4tli ed , 817, 818, 854, 860 ; Hawk, 224.) And the rule applies where the gift is in the form of a direction to pay.. E.g., if the gift be to trustees upon trust for A. for life, and after his decease upon trust to pay and > he divided among them when they attain twtnity-one, vests in the children at birth. (1 Jarm., 4th ed., 837, 8Jn) m :.^i THE LAW OF WILLS. 117 But where tlie payment is to be'made, not on attain- ing a given age, or marriage, but on marriage only the rule does not apply. I£.^. : A bequest to A. to be paid on his marriage, is contingent. (1 Jarm, 4th ed., 839.) But a bequest to A. to be paid on his marriage, 7c/V// interest in tJie meantime, is vested. (lb. 834.) But though there may be a gift distinct from the direction to pay, the question w^hether the vesting is to be postponed till the time of payment, or not de- pends solely upon the intention to be collected from the context in the will. (2 Jarm., 4th ed., 799 to 808.) Rule : In bequests of personal estate, a gift of the whole interim interest to or for the benefit of tlie legatee, vests the principal. (1 Jarm., 4th ed., 842.) And where interest is given to other persons to be applied for the benefit of the legatee, the rule will apply. E.(f., a bequest to the children of A. when they attain 21, t}ie interest to be applied at the discre- tion of trustees for their maintenance and education during their minorities, vests in the children at birth. (Gairdncr v. Gairdncr, 1 O.K., 184.) ll.S A MANUAL OF But if a discretionary power is given to the trustees to apply all or any part of the interest towards the maintenance and education or for the benefit of the legatee, it does not vest the principal. (Hawk, 220.) And a bequest to such of the children of A. as shall attain 21, the interest to be applied in the meantime for their benefit does not vest in those under 21. ^1 Jarni., 4th ed., 860.) The rule applies where there is a bequest of interest subject to a charge. If the gift of the interest itself is contingent on the legatee attaining a specified age, so that the interest is to follow the fate of the principal, it will not vest the principal. (1 Jarm., 4th ed., 11 124 A MANUAL OF defeasible only in the event of his death without issue under the specified aoe. Holtby v. Wilkinson, 28 Grant Ch. [U.C.] 550.) The rule is the same if the words " at," " upon," or " from and after " be used in place of " if " or " when." The rule is the same where the devise is to a class. E.g., under a devise to the children of A. when they attain twenty-one, with a gift over in default of children who should attain twenty-one, the estates of the children vest at birth. (1 Jarm., 4th ed., 810.) m THE LAW OF WILLS. 125 CHAPTER XXIX. 1 SUBSTITUTION, SURVIVORSHIP, ETC. Substitution. The term " substitution " is generally applied to limitations intended to provide for the death of prior legatees before the period of distribution. (Theobald, 3rd ed., 457.) Rule : Wherever there is a bequest, whether immediate or deferred, to indivi- duals by name substitution may take place before the testator's death, and a ^ift over of the legacy ov share of a le<^atee dying under certain circumstances, takes effect if the event happens in the testator's lifetime. {IVilliug V. /^ai7u\ W P. Wms., ll.-»: 2 Jarm., 4th ed., 7(32, li\)\.) /s\<^.: If there be a beijucst t<> A. for life, and after 126 A MANUAL OF his death equally between B. and C. with a gift over of the share of either dying in the lifetime of A., and B, or C, dies in the lifetime of A. durinij the testa- tor's lifetime, the gift over takes effect. And if the bequest be to A., and if he dies under twenty -one to B., if A. dies under twenty -one, in the lifetime of the testatoi', the gift over takes ett'ect. (Theobald, 8rd ed, 448.) And substitution will take place, in the case of a bequest to individuals, if the legatee is dead (under the circumstances prescribed in the will) at the date of the will, the testator being presumed to have made the bequest on the supposition that he was alive. (Hawk, 245 ; Theobald, 3rd ed., 460.) A gift to A. and in case of his death to his executors or administrators, will go to A's executors in the event of his death before the testator. (Theobald, 3rd ed., 268.) But where tnero is a future gift to A. or his execu- tors and administrators, the word t!xeeut.) Executors taking substitutionally take tlie property to be administered as part of the assests of the- original legatee. (lb.) THE LAW OF WILLS. 127 But wliere the gift over is to the persons benefici- ally entitled in ease of intestacj^ as to A. for Hfe, and after his death to " B. or his heirs" the word heirs being construed to mean the persons entitled under the Statute of Distributions, the gift over, although the bequest is not immediate, tr.kes effect if B. dies in the testator's lifetime, or in the lifetime of the tenant for life. {Re Porter s'Vnists, 4 K. & J., 188; Theo- bald, 3rd ed., 459.) A bequest to A. to be paid at the end of a year from the testator's death, or to his representatives, is not an immediate gift, and therefore if A. dies in the tes- tator's lifetime, substitution will not take place. (Hawk. 247.) The rule as to substitution does not apply to a bequest to a class, and the gift over is construed as :i gift only of the shares of members of the diss. In this case substitution cannot take place until the period when the class is ascertained which cannot be in the testator's lifetime. (Hawiv, 247 : Theobald, 8rd ed.. 4G0.) If the gift is substitutional, as to several or their children, the children take /;t\»- stirpes. (Theobald, 3rd ed.; 240.) Rule : Where there is an immediate l)e- 128 A MANUAL OF quest to A. and a gift over ' ' in case of his death,'' or any similar expression implyincr the death to be a contingent event, the gift ovei will take effect only in the event of As death before the period of payment, i.e.y before the testator, and A. surviving the testator t:- It ; >solutely. (Cambridge \ 7?^?^^, 8 Ves , 12 ; Eu.nc V. Smith, 22 Ch. D. 280 ; 2 Jarm., 4th fV 752,^ And if there is a gift to "A. or his issue" it is equivalent to a gift to A. and " ia case of his death " to his issue, and will come under above rule. (Hawk, 255.') And a bequest to A. or liis issue, to be paid at the end of twelve months from the testator's deatli, is an immeiliate bequest; and the legatee, if he survives the testator, takes absolutely. (lb.) And where there is a bequest to " A. or his personal representatives," or to " A. or his heirs,'' t^\e word " or," generally speaking, inq^lies a substitution so as to prevent a lapse. (Wms. Exs., 8th ed., 1215, 1216.) •Sccus, where the gift is to " A. and his executors, ad- ministrators and assigns." (lb., 1212. V. but when to " A. and his heirs" there is no lapse. (lb., 121:^.) ^m THE LAW OF WILLS. 129 In the case of realty a devise to A. simply, before 1874, and in case of his death over would give A. an estate for life, and after his death over. (Theobald, 3rd ed., 451 ) But now, by virtue of section 30 of The Wills Act of Ontario, the gift over will only take effect if A. predecease the testator. If the devise gives A. the fee, a gift over, in case of A's death, will be held to refer to his death before the testator. (Rogers v. Rogers, 7 W. R., 541.) If the devise or be(|uest confers a life estate, or a time is appointed for payment of the bequest, tlie words " in case of death " refer to the death at any time before the vesting in possession, whether before or after the testator. (Theobald. 3rd ed., 451.) Where there is a gift to A, (whether preceded or not by a life estate) and if he shall die without leaving a child, or without leaving issue (as the case may be), then to B., that means, if, at any time, A. should die without leaving a child, the gift over to B. will take effect. (t:dwards v. Edwards, 21 L.J., Ch. 324; 15 Bea. 357 ; OMahoney v. Burdett, 44 L. J., Ch. 50n ; L.R. 7, H.L. 388.) If a devise is followed bv words of limitation or benefit, as " to A., his heii-s, and assigns," or " to A. for ever," or " to A. for his own use and benefit," and m 130 A MAXCAL OF the property is then given over upon contingencies, one or other of which miLst happen ; as, for instance, upon death either with or without children, the de- feasibility will be limited b\'' the period of distribu- tion, whether it is the testator's death or some other time, in order not to cut down the previous absolute interests to life interests merely. (Theobald, 3rd ed., 454 ; Hawk, 259.) But if the devise be without words implying an absolute interest, the tact that the contingencies upon which the propertj^ is given over, in effect reduce the interest to a life interest, will not have the effect of confining the happening of the contingencies to the period of distribution. (Theobald, 3rd ed., 454.) Survivorship. The word " survivor " may be either a word of lim- itation of an estate (denoting the interest certain per- sons are to take), or it may denote the persons who are to take, in which case it must have its natural meaning " to outlive :" i.e., to be alive at and after tlie time of a particular event or death of a particular person, which event or person the other is to survive. (Theobald, 8rd ed., 466.) In a devise to A., B., and C. as tenants in common .1 ^^m THE LAW OF WILLS. 31 for life, with benefit of survivorship, the word sur- vivorship refers to the extent of the estate and not to the class of persons, and upon the death of one the remaininof tenants in common take the whole estate. Haddeisey v. Adams, 22 Bea., 266 ; Taafe v. Conmee, 10 H.L., 64.) T/ie Period of Division. CrIPPS v. WOOLCOIT. Rule : In bequests of personal estate, words of suvivorship are prima facie to be referred to the period of payment or distri- bution, and not to the death of the testator. (Cripps V. Woolcott, 4 Mad, II ; Hannah Y.Duke, 16 Ch. D.. 112 ; 2 Jarm, 4th ed., 733.) E.g., a gift to A, for life, and after his death to his surviving children, " surviving " is construed to meau " living at the death of A." Survivorship is to be referred to the period of' division. If there is no previous interest given in the legacy, then the period of division is the death of the- testator, and the survivors at his death will take the whole legacy. But if a previous life estate be given then the i)eriod of division is the death of the tenant II 132 A MANUAL OF for life, and the survivors at such death will take the whole legacy. (Theobald, 3rd ed., 471 ; 2 Jarm., 4th ed., 733.) But if the tenant for life dies in the lifetime of the testator, the survivors are fixed at the testator's death. (2 Jarm.. 4th ed., 736 ; Theobald, 3rJ eel, 471.) The same rule applies to realty as to personalty, (lb.) The rule may be excluded by a contrary intention. (V. Theobald, 3rd ed., 472-474 ; 2 Jarm., 4th ed., 737, 738.) Rule : A bequest to several, or to a class, " or " to such of them as shall be living at a given period, is construed as a vested gift to all, subject to be divested in favor of those living at that period, if there be such ; and if none are then living, all are held to take, and their shares will devolve to their res- pective representatives. (Browne v. Kenyan, 3 Mad., 410 ; Sturgess v. Pearson, 4 Mad., 411; 1 Jarm.. 4th ed., 827, 828.) E.g.: If the gift be to A. for life, and after his de- cease to his children or the survivors, and no child is 1^ r\ THE LAW OF WILLS. 133 living at the death of A., all the children are entitled, as if the gift had been given to A. for life, with remainder to his children simply. It is the same if the gift be to A. for life, with remainder to his children or such of them as shall be living at his death. Accrued Shares. Rule : A clause of accruer of the shares of devisees or legatees does not without a positive and distinct indication of intention, operate on shares which have already ac- crued under the clause in question. (Ex. parte West, 1 Bro. CO., 575; 2 Jarm.. 4th ed.. 710.) The meaning of this rule is, that clauses in a will disposing of the shares of devisees and legatees dying before a given period or event, do not, without a pos- itive and distinct indication of intention, extend to shares which have once accrued under those clauses so as to pass them a second time. (Theobald, 3rd ed., 478.) E.g : If real or personal estate be given to A., B., and C, as tenants in common with a direction that I I 134 A MANUAL OF if any of them die without issue, the share of the one so (lying shall be divided among the survivors .' if A. and B. successively die without issue, t original share of B. will accrue to C, but not t^^e share which accrued to B, upon the death of A. But accrued shares will go with the original shares if there is an intention expressed that they should do so. If, for instance, accrued shares are directed to go in the same manner as original shares ; or, where the testator uses words which are applicable to accrue"' shares, as if he speaks of " his or her share or shan where only one original share has been previously given, so that the v/ords cannot be satisfied reddendo singula singulis ; or, where the testator, though he speaks of individual shares, yet shows that he looks on the fund as existing at the period of distribution as an aggregate and previously undivided fund by speaking of it, for instance, as the trust fund ; and a gift over of the whole fund is convincing evidence of the same intention ; and where the gift is of residue, the presumption against intestacy will assist the Court in passing accrued with original shares. (Theobald, 3rd ed., 479, 480 ; 2 Jarm, 4th ed., 712, et seq.) . » THE LAW OF WILLS. 135 CHAPTER XXX. CHARGES, LIABILITY TO DEBTS, ETC. Dower. ^1 Every devise of land liabl' to dower takes effect subject to the widow's right in that respect. The class or species of property upon which the right to dower may attach, and the estate or degree of interest which must exist therein as a requisite to its inception, should be distinguished. For instance, all real hereditaments, whether corporeal or incor- poreal, are subject to dower (unless there is a special reason to the contrary), but it is not to every estate or interest therein that dower will attach. (Cameron, 66,68.) Thus, an estate for life is not subject to dower at Common Law ; (Cameron, 66.) Nor is dower allowed out of estates in remainder or reversion. (Camerop; 80.) The estate of the husband must confer a right to 136 A MANUAL OF the immediate freehold, and must be one that the issue of the wife, if any, could inherit ; but it is not necessary that any issue should be actually born. (Cameron, 77.) As regards dower in estates equal to estates of in- heritance it is enacted that " where a husband dies benetically entitled to any land for an interest which does not entitle his widow to dower at Common Law, and such interest whether wholly equitable, or partly legal and partly equitable, is an estate of inheritance in possession, or equal to an estate of inheritance in possession, (other than an estate in joint tenancy), then his widow shall be entitled to dower out of the same land. (R.S.O., 1887, c. 133, s. 1.). Section 3 of the Dower Act enacts that the widow shall not be entitled to dower in any land, which at the time of the alienation thereof by the husband, or at the time of his death, if he died seised thereof, was in a state of nature, and unimproved by clearing, fencing, or otherwise, for the purposes of cultivation or occupation. (R.S.O., 1887, c. 103, s. 3.) Where the husband is seised as tenant in common of real estate, his widow is entitled to dower therein. (Ham V. Ham, 14 Q.B., 497.) But the widow has no right to dower where the THE LAW OF WILLS. 137 estate is one of joint tenancy, for on his death durinff the joint seisin the title passes to the other joint ten- ant or tenants free from dower. {Haskill v. Eraser^ 12 C.P., 383.) Section 4 of the Dower Act abolishes dower aS, ostium ecclesice, and dower ex assessu patris. Where the will indicates an intention to dispose of the lands adversely to h*)r right, the widow, if taking any benefits under the will, is put to her election ; but unless it shows a clear intention that the provi- bion is to be in satisfaction of dower, or the provision made therein is wholly inconsitent with the enjoyment of dower, she will not be put to her election. (Came- ron, 481.) And when a will expressly declares that what is is given to the widow is intended to be in lieu of dower, she is, if she accepts it, bound by her election and her claim to dower is barred. ( Walton v. Hill, 8 Q. B., 562.) IH 5 I ■' ;t Mortgages. By T/ie Wills Act of Ontario (R.S.0.,1887, c. 109, section 37), it is enacted that ' where any person has died since the 81st day of December, 1865, or here- after dies seised of or entitled to any estate or interest 138 A MANUAL OF \'4 in any real estate, which, at the time of* his death was or is charged with the payment of any sum or sums of money by way of mortgage and such person has not, by his will or deed or other document, signi- fied any contrary or other intention, the heir or devisee to whom such real estate descends or is devised shall not be entitled to have the mortgage debt discharged or satisfied out of the personal estate, or any other real estate of such person ; but the real estate so charged shall, as between the different per- sons claiming through or under the deceased person, be primarily liable to the payment of all mortgage debts with which the same is charged, every part therefore according to its value bearing a proportion- ate part of the mortgage debts charged on the whole thereof." Provided that "nothing herein contained shall afiect or diminish any right of the mortgagee on such real estate to obtain full payi^ent or satisfaction of his mortgage debt, either out of the personal estate of the person so dying as aforesaid, or otherwise ; and nothing herein contained shall affect the rights of any person claiming under or by virtue of any will, deed, or document made before the first day of January, 1874." The effect of this enactment is to make the mortgaged estate, as between the persons claiming THE LAW OF WILLS. 139 under the testator, primary liable, /;/ the absence of any intention on the part of the testator appearing to the contrary, evidenced either by will or any docu- ment. It is sufficient, in order to exonerate the mort- gaged estate, that it should be specifically devised without mention of the mortgage, and another fund, whether real or personal, designated for payment of debts generally. (2 Jarm., 4th ed., 647 ; Hawk, 280.) Debts and Legacies. Implied Charge of Debt. Rule : A direction by the testator that his debts shall be paid, charges all his real estate therewith. {Shai/ci^oss v. Finden^ 3 Ves.,738; 2 Jarm., 4th ed., 590, 591 ; Hawk, 282.) But a direction by the testator that his debts shall be paid by his executors^ charges only the real estate, if any, devised to them. (2 Jarm.. 4th ed., 594, 595 ; Hawk, 282.) It is not material whether the real estate is devised to the executors as trustees or beneficially. If the testator devises all his real estate to his w 140 A MANUAL OF executors and directs them to pay his debts, that con- stitutes a charge on the real estate, even if they take no beneficial interest in it. {Robson v. Jardine, 22 Grant Ch. [U.C] 420 ; 2 Jarm., 4th ed., 596 ; Hawk, 284.) But the property must be derived by them jointly under the will, for a direction to the executors to pay debts does not charge lands devised to one of them only. (2 Jarm., 4th ed., 598 ; Hawk, 284, 285.) Exoneration of Personalty. Rule : " The charging the real estate ever so anxiously is not of itself sufficient to exempt the personal estate." [Tail v. Northwick, 4 Ves , 823 ; Hawk, 287.) There must be, in order to exonerate the personal estate, a clear intention on the part of the testator, not only to cliarge the real estate, but to discharge the personal estate. (2 Jarm., 4th ed., 657, 660.) A direction to sell the real estate for payment of debts would not be sufficient. (2 Jarm., 4th ed., 668 ; Hawk, 286.) But where provision has been made for the pay- ment of all those charges, which would primarily ■^ THE LAW OF WILLS. 141 affect the personal estate, out of the real estate, and the whole personal estate has been specifically given, the rule is excluded. {Scott v. Scott, 18 Grant Ch. [U.C] 66.) Legacies and annuities given generally, without reference to any particular fund, are primarily pay- able out of the personal estate, and the rule as to exoneration applies to them. But where there is a reference to the funds or property on which they are cliarged, the rule does not apply, and the funds so pointed out are primar- ily or solely liable. '^2 Jarm, 4th ed., 078, 674). Blended, Real and Personal Estate. Mixed, real, and personal estate may be disposed of in three ways by will. 1. The two may be given together, but retaining their several qualities; in which case the liability as to charges is not affected. 2. The real estate may be converted, and the proceeds given along with the personal estate ; which places the real and personal estate on an equality, as regards those charges to which both are liable. 3. The real estate may be converted, and the pro- nR. 142 A MANUAL OK ceeds declared to be part of the personal estate, and disposed of as such ; in which case the real estate is subject to the charges affecting the personal estate. Roberts v. Walker. Rule : " When a testator creates from real estate and personal estate a mixed and general fund, and directs the whole of that fund to be applied for stated purposes, {E.g., the payment of debts, legacies, or annuities); he does, in effect, direct that the real and personal estate which have been converted into that fund shall ansv/er the stated pur- poses and every of them pro rata, according to their respective values." (Roberts v. Walker, 1 R. & My., 752 ; 2 Jarm., 4th ed., 627.) But if real and personal estate are given together subject to charges, but the real estate is not directed to be sold, the personal estate remains primarily liable. (2 Jarm., 4th ed., 629 ; Hawk, 291.) The rule in Roberts v. Walker applies not only to those charges which are expressly directed to be paid THE LAW OF WILLS. 143 out of the mixed funds, but to all charges to which both funds are liable. ily Kidney z\ Coussmaker. Rule : A direction that real estate shall be sold, and the proceeds form or be con- sidered as par/ of the residuary personal estate of the testator, subjects the real estate to all charges atfecting the personal estate. [Kidney v. Coussniakcr^ 1 Ves. jun., 436 ; 2 Jarm., 4th ed., 601 ; Hawk, 293.) And the real and personal estate are liable to the charges //ir//rijj7*. (Hawk, 293.) The rule in Kidney v. Coussmaker applies to legacies as well as to debts : although the personalty is not in terms charged wdth the payment of them. (2 Jarm , 4th ed., 603.) • Greville v. Browne. Rule : If leo-acies are given generally, and the residue of the real and personal estate is afterwards given in one mass^ E.g., " all the rest residue and remainder of any lit ■ ;,J|! 144 A MANUAL OF property I might die possessed of or entitled to of what nature soever " — the legacies are a charge on the residuary real as well as the personal estate. (Greville v. Browne, 7 H.L.Ca., 689 ; 2 Jarm, 4th ed., 605 ; Hawk, 294.) But where the testator plainly treats the different species ot* estates as two masses, as in the case of a gift (after legacies) of " all my real estate and all the residue of my pei-sonal estate," the rule does not apply. (2 Jarm , 4th ed., 607.) And the rule is not applicable to a case where the testator first dealing exclusively with his personal estate allots certain portions of it to several objects, and then disposes of the residue of his real and per- sonal estate. (lb ) And where a charge of legacies is effected under the rule in Greville v. Browne, and there is also a specific devise of realty, the latter is not charged with the legacies but only the residuary realty. (lb. 609.) COUROU V. COTTROU. RuiiE : A mere charge of legacies on the real and personal estate, or on a// the real THE LAW OF WILLS. 145 and i^ersonal estate, does not of itself create a charge on any specific devise or bequest. {Courou V. Courou. 7 H. L. Ca„ 1()8; 2Jarm., 4th ed., 608 ; Hawk, 290,) But if the specific devise failed, so that the lands fell into th,^. residue, they would of course be charged. Where debts and legacies are charged together, the legacies, being placed by the will on an equal footing with the debts, which are a charge on lands specifically devised, get the benefit of the charge on the specifically devised estates. (2 Jarm., 4th ed., 609.) \ V -,i It 146 A MANUAL OF CHAPTER XXXL LEGACIES. Rule: The term " Legacies " includes annuities, and '' Legatee " includes annuit- ant. {Ward V. Grey, 29 L.J. Ch. 75, 76; 26 Bea., 485 ; 2 Jarm, 4th ed., 609 ; Wras. Exs., 8th ed., 1202n ; Theobald, 3rd ed., 148 ; Hawk, 298.) And the teria "pecuniary legacies" would also, it would seem, include annuities. (Theobald, 3rd ed., 148.) But if the testator expressly distinguishes between legatees and annuitants, legacies will not include an- nuities, (lb.) And annuities not given simpliciter, but as rent charges payable solely or primarily out of the real estate, do not fall under the term legacies. (Hawk, 299.) Chancey's Case. Where a testator bequeaths to a creditor a sum, THE LAW OF WILLS. 147 equal to or tjrcatcr than tlie amount of his rd ed., 2()8 ; Hawk, 309.) The rule does not apply where the testator ex- 152 A MANUAL OF THE LAW OF WILLS. presses some motive, other than that expressed by a gift to his executor as such, as if tlie gift is to " my friend and executor." (Theobald, 3rd ed., 269.) Neither does it apply where the gift is after a life interest ; nor where there is a direction that in tiie event of the executor's death before the testator, his legacy is to go to his next of kin ; nor where the gift is of residue. (lb.) ELCOCK V. MAPP. ^ Rule : If the residuary personal estate is given to trustees, and the trustees are also executors, thev cannot as executors claim any part of the residue beneficially. [E/cock V. Mapp, 3 H.LC, 492; McDonald \, Mc- Donald, U U.C, Q.B., 309.) And where only one, or some, of the executors is, or are, expressly declared by the will to be a trustee, all the executors are trustees, and the rule applies. APPENDIX. The Wills Act of Ontario. K. S. O. 1887, c. 109. TJER MAJESTY, by and vvitii the advice and con- sent of the Lefjishitive Asseniblv of the Province of Ontario enacts as follows : — 1. This Act may be cited as " The Wills Act of Ontario^ WILLS BEFORE IS'l JANUARY, 1874. 2. In the next siicceedinof three sections of this Act the word " land " shall extend to messuages, and all other hereditaments, whether corporeal or incorporeal, and to money to be laid out in the purchase of land, and to chattels and other personal property trans- missible to heirs, and also to any share of the same hereditaments and properties, rents, and heivditanients, whether freehold or of any otlier tenure, and whether corporeal, incorporeal, or personal, antl to any undivided shara thereof, and to an}'^ estate, rif^lit, or interest (other than a chattel in- terest) therein ; 3. " Personal estate " shall extend to leasehold estates and other chattels real, and also to moneys, shares of government and other funds, securities foi' money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatso- ever which by law devolves upon the executor or a;j\i«l section contained, unless such con- trary or other intention is further declared by words expresslj' or l>y nf^cessary implicat.ioTi refernnc to all or some ot* the testator's debts or debt charged by way of mortgtige on any part of his real estate. R. S. O. 1877, c. 106, s. 37.