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context of the will makes no explanation of the meaning of the term "survivor," it will be given its ordinary literal meaning and will include those only actually surviving at the time fixed in the will.97

§ 892. The Same Subject: Where Gift to Survivors Depends Upon a Contingency.

Where there is a gift to survivors to be effective only upon a certain contingency, as where they take as survivors in the event of a beneficiary dying without issue, and this is followed by a gift over to be effective should there be no survivors to take, it is inferred that the testator used the word "survivors" as synonymous with "others." By the gift over of the property as a whole the testator evidently intended to keep the property together in the hands of the beneficiaries and their descendants and to allow them the benefits except in the one contingency named, upon the happening of which the gift over would become effective.98 It has been said.

97 Davidson v. Dallas, 14 Ves. Jun. 576; Crowder v. Stone, 3 Russ. 217; Ranelagh v. Ranelagh, 2 Myl. & K. 441; De Garagnol v. Liardet, 32 Beav. 608; Waite v. Littlewood, L. R. 8 Ch. App. 70; Beckwith v. Beckwith, 46 L. J. Ch. 97; In re Bilham, (1901) 2 Ch. 169; Jackson v. Chew, 12 Wheat. (U. S.) 153, 6 L. Ed. 583; Coleman-Bush Investment Co. v. Figg, 95 Ky. 403, 409, 25 S. W. 888; Anderson v. Brown, 84 Md. 261, 35 Atl. 937; Hill v. Safe Deposit etc. Co., 101 Md. 60, 4 Ann. Cas. 577, 60 Atl. 446; Lawrence v. Phillips, 186 Mass. 320, 71 N. E. 541; Seddel v. Wills, 20

N. J. L. 223; Skinner v. Lamb, 25 N. C. 155; Bradley v. Richardson, 62 S. C. 494, 40 S. E. 954.

98 Doe d. Watts v. Wainewright, 5 T. R. 427; Cole v. Sewell, 4 Dru. & War. 1; s. c. 2 H. L. Cas. 186; Badger v. Gregory, L. R. 8 Eq. 78, 84; Cooper v. Macdonald, L. R. 16 Eq. 258.

If the beneficiaries take but a life interest with remainder to their issue, and the survivors take in the event of a beneficiary dying without issue, "survivors" will not be construed as "others" although there may be a gift over should all die without issue.-Maden v. Taylor, 45 L. J. Ch. 569, 573.

that in order to construe the word "survivor" to mean "other," it is necessary that there be an ultimate gift over, for that supplies the necessary evidence of such an intention."

§893. When Gift Is Direct, Words of Survivorship Refer to Testator's Death.

Words of survivorship may be used in connection with direct gifts, such as a devise or bequest to the surviving children of A, or in connection with a gift to take effect in the future, such as a devise of a remainder at the death of the life tenant to the surviving children of A. The decisions have distinguished between the two classes of cases mentioned. In all cases, however, it should be borne in mind that the law favors such an interpretation of a will as permits estates to vest at the earliest possible moment, and to that end words of survivorship are construed as referring to the death of the testator where the context does not clearly show that they have reference to a subsequent date.1 And where the gift is direct, such as to the "surviving children of A," and no contrary intention appears from the will, the general rule is that the period referred to is the death of the testator and the children who are to take are those surviving at that time. The effect of such words of survivorship would be to prevent a lapse of the share of one of the children of A who might die before the testator by passing his share to the

99 Wake v. Varah, 2 Ch. Div. 348; Milsom v. Awdry, 5 Ves. Jun. 465; Anderson v. Brown, 84 Md. 261, 271, 35 Atl. 937.

Compare: In re Arnold's Trusts L. R. 10 Eq. 252.

1 McArthur v. Scott, 113 U S.

340, 28 L. Ed. 1015, 5 Sup. Ct. 652; Amos v. Amos, 117 Ind. 37, 19 N. E. 543; Aspy v. Lewis, 152 Ind. 493, 52 N. E. 756; Taylor v. Stephens, 165 Ind. 200, 74 N. E. 980; Eberts v. Eberts, 42 Mich. 404, 406, 4 N. W. 172.

survivors.

And words of survivorship will prevent a lapse in the event of the death of one of the beneficiaries prior to that of the testator. Where the gift is either to individuals or to a class, or to the survivors of them, those living at the death of the testator take the benefits of the beneficiaries dying before that time.

§ 894. To What Date Words of Survivorship Refer When Gift Is Preceded by a Life Estate: English Rule.

Where words of survivorship are used in connection with a remainder over after a life estate, such as a gift to A for life with remainder over to the surviving children of B, the decisions are conflicting as to the time at which such survivors should be determined. The early English decisions held that such words of survivorship referred to the death of the testator unless the context of the will manifested a different intention. Exceptions were taken to this rule until now, in England, it may be said that it does not apply where the gift over to the survivors is preceded by any particular estate, and that where the survivors take only after the termination of a prior interest, those who take are to be determined as of such date;

2 Lord Bindon v. Earl of Suffolk, 1 P. Wms. 96; Smith v. Py. bus, 9 Ves. Jun. 567; Ashford v. Haines, 21 L. J. Ch. 496; Lill v. Lill, 23 Beav. 446; Taylor v. Stephens, 165 Ind. 200, 74 N. E. 980; Carpenter v. Hazelrigg, 103 Ky. 538, 45 S. W. 666; Morton's Guardian v. Morton, 120 Ky. 251, 85 S. W. 1188; Brimmer v. Sohier, 1 Cush. (Mass.) 118; Prendergast v. Walsh, 58 N. J. Eq. 149, 42 Atl. 1049; Stevenson v. Lesley, 70 N. Y. 512; Matter of Mahan, 98 N. Y.

372; Renner v. Williams, 71 Ohio St. 340, 73 N. E. 221.

3 Lord Bindon v. Earl of Suffolk, 1 P. Wms. 96.

4 Edwards v. Symonds, 6 Taunt. 213; Rose v. Hill, 3 Burr. 1881; Haws v. Haws, 3 Atk. 524; Lord Bindon V. Earl of Suffolk, 1 P. Wms. 96; Woodstock v. Shillito, 6 Sim. 416; Perry v. Woods, 3 Ves. Jun. 204; Brown v. Bigg, 7 Ves. Jun. 279; Elliott v. Smith, 22 Ch. Div. 236.

this, of course, only where a contrary intention of the testator does not appear." Should the life tenant die before the testator, the decease of the latter determines who shall take.

§ 895. The Same Subject: American Decisions.

In America the decisions are conflicting, some following the earlier and some the later English cases. Each case, in fact, although apparently recognizing some rule, is determined according to the particular language involved. The early English rule may be accepted, yet not followed for the reason that the court finds, from the provisions of the will, that the testator had a different intent. The courts favor the vesting of estates at the earliest possible moment, and also seek to avoid intestacy. Again, words of survivorship are not always used in their ordinary sense, but, as has been shown, may mean "others," in which case the heirs or issue, according to the provisions of the will, may take in the place of a deceased beneficiary. The American decisions do not generally follow the later English cases which hold that where the gift to the survivors is of a remainder after a precedent estate, the survivors are to be determined at

5 Browne v. Lord Kenyon, 3 Madd. 410, 416; Cripps v. Wolcott, 4 Madd. 11; Young v. Robertson, 8 Jur. N. S. 825; Daniell v. Daniell, 6 Ves. Jun. 297; Jenour v. Jenour, 10 Ves. Jun. 562, 566; Blewitt v. Stauffers, 9 L. J. Ch. 209; Howard v. Collins, L. R. 5 Eq. 349; Wordsworth v. Wood, 1 H. L. Cas. 129; Toaffe v. Conmee, 10 H. L. Cas. 64; Eaton v. Barker, 2 Coll. C. C. 124; Blewitt v. Roberts, 10 Sim. 491;

Hesketh v. Magennis, 27 Beav.
395; Naylor v. Robson, 34 Beav.
571; Pope v. Whitcombe, 3 Russ.
124.

6 Spurrell v. Spurrell, 11 Hare
54.

7 Branson v. Hill, 31 Md. 181, 1 Am. Rep. 40; Kelso v. Lorillard, 85 N. Y. 177; Woelpper's Appeal, 126 Pa. St. 562, 17 Atl. 870; Jameson v, Jameson's Adm'x, 86 Va. 51, 3 L. R. A. 773, 9 S. E. 480.

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the death of the tenant of the particular estate. The mere fact of a precedent estate is not sufficient to postpone the vesting of the remainder in the survivors at the death of the testator, there being nothing in the context of the will to indicate such an intention. In such a case the words of postponement are presumed to refer to the beginning of the enjoyment of possession rather than to the vesting of the remainder in the beneficiaries. Those in existence at the death of the testator take a vested interest; and the rule is that an interest, once vested, is not to be divested unless such intent clearly appears from the will.

V.

8 Doe V. Considine, 6 Wall. (U. S.) 458, 468, 18 L. Ed. 869; McArthur v. Scott, 113 U. S. 340, 28 L. Ed. 1015, 5 Sup. Ct. 652; Vickers v. Stone, 4 Ga. 461; Clore v. Smith, 45 Ind. App. 340, 90 N. E. 917; Alsman Walters, (Ind. App.) 101 N. E. 117; Taylor v. Stephens, 165 Ind. 200, 74 N. E. 980; Moores v. Hare, 144 Ind. 573, 43 N. E. 870; Aldred v. Sylvester, 184 Ind. 542, 111 N. E. 914; Blanchard v. Blanchard, 1 Allen (Mass.) 223; Pike v. Stephenson, 99 Mass. 188; Moore v. Lyons, 25 Wend. (N. Y.) 119; Livingston v. Greene, 52 N. Y. 118; Embury v. Sheldon, 68 N. Y. 227; Stevenson v. Lesley, 70 N. Y. 512; Quackenboss v. Kingsland, 102 N. Y. 128, 55 Am. Rep. 771, 6 N. E. 121; Ross v. Drake, 37 Pa. St. 373; Shutt v. Rambo, 57 Pa. St. 149; In re Vance's Estate, 209 Pa. St. 561, 58 Atl. 1063; Hansford v. Elliott, 9 Leigh (Va.) 79; Martin v. Kirby,

11 Gratt. (Va.) 67; Allison v. Allison's Ex'rs, 101 Va. 537, 63 L. R. A. 920, 44 S. E. 904; In re Moran's Will, 118 Wis. 177, 96 N. W. 367.

But see: Matter of Winter's Estate, 114 Cal. 186, 45 Pac. 1063; Olmstead v. Dunn, 72 Ga. 850, 860; Crawford v. Clark, 110 Ga. 729, 36 S. E. 404; Nicoll v. Scott, 99 III. 529; Branson v. Hill, 31 Md. 181, 1 Am. Rep. 40; Ridgely v. Ridgely, 100 Md. 230, 59 Atl. 731; Slack v. Bird, 23 N. J. Eq. 238; Holcomb v. Lake, 24 N. J. L. 686; Cole v. Creyon, 1 Hill Eq. (S. C.) 311, 26 Am. Dec. 208; Sinton v. Boyd, 19 Ohio St. 30, 2 Am. Rep. 369; Renner v. Williams, 71 Ohio St. 340, 73 N. E. 221; Swinton v. Legare, 2 McCord Eq. (S. C.) 440; Ballard v. Connors, 10 Rich. Eq. (S. C.) 389, 392.

"It is true that the law prefers vested to contingent remainders, and this preference may lawfully and properly influence the mind in

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