issue, and susceptible in themselves of the indefinite construction, may actually receive that construction, it is necessary that their import should be enforced by other ingredients. Assuming the old law, in regard to the effect of such words as this enactment contemplates, to have been even more faulty than it really was, doubts may be entertained, whether, by exchanging its settled and familiar rules for the statute-canon, we have not lost in certainty more than we have gained in soundness of construction. CHAPTER V. marks on the clauses relating to against an im on them. We may dismiss the clauses relating to the construc- General retion of wills by observing, that, so far as their tendency is good, they are calculated to assist the expounder rather than the framer of the instrument ;-to correct and supply the mistakes and omissions of a testator, either inops consilii, or in the worse condition of being attended by one of those humble counsellors who presume not to prepare a deed, involving a single operation in conveyancing, but expatiate with confidence in the wide and diversified field of testamentary disposition. The well-advised tes--caution tator will adhere for the most part to the established plicit reliance forms, not only because his statute-devises may be defeated by the implication of a contrary intention (h), but because it is the office of a will so to express the intention, as that it may stand clearly recorded within the four corners of the instrument, without the glossarial aid of the parliament-roll. These sections, however well-intentioned, and in some respects well-directed, appear to savour of minute criticism on certain forms of expression, imported from decisions on particular instruments, inartificially penned, into a general law;—a law, which, after making bold and comprehensive changes, thus ends by placing on the statute-book the miscarriages of testators and judges in matters of a verbal nature. (h) Post, 408. CHAPTER V. V. LAPSE. will shall not lapse; There is a seeming inconsistency in that legislation which indulges the testator, as being destitute, probably, of professional advice, with a popular construction of his words, and at the same time surrounds the execution of the instrument with ceremonies, which professional men cannot understand alike (i). Nor has the language of the courts, in regard to the rules most to be desired for the exposition of wills, been always consistent; for if the reported judgments abound in lamentations over intention destroyed by technical reasoning, they also sometimes drop expressions of regret that deeds and wills were not construed with equal inflexibility (k). V. The fifth class of enactments relates to lapse (1). What gifts by 1. As to the lapse of gifts in tail.-If a devisee in tail, or quasi in tail, of real estate shall die in the testator's lifetime, leaving issue who would be inheritable under the entail, and any such issue shall be living at the testator's death, the devise will not lapse, but will carry the estate to the issue in tail living at the testator's death, in the same manner as if the devisee had died immediately after the testator, unless a contrary intention shall appear by the will (s. 32). 2. As to the lapse of gifts to the testator's own issue.-If a child, or other issue of the testator, being the object of a devise or bequest, not determinable at or before the death of the object, shall die before the testator, leaving issue, and any such issue shall survive the testator, the devise or bequest will not lapse, but will take effect, as if the death of the object had immediately succeeded that of the testator, unless a contrary intention shall appear by the will (s. 33). -gifts to a child or issue of the testator, in certain cases. (i) Ante, 360, et seq. (k) 5 T. R. 561, 8 T. R. 502. As to the few points in which the rules for construing deeds and wills were, before the recent act, really different, see Shep. Touch. by Prest. 81; ante, 126. (1) As to the controlling effect of intention, vide post, 408. CHAPTER V. Comments on the fifth class Gifts in tail, when, and how, saved from lapse. 1. With respect to devises in tail, (including such devises of life-leaseholds as would, if life-leaseholds were properly entailable, confer an estate tail, and including, of enactments. (Lapse). of course, estates-tail by construction of equity in a money fund applicable to the purchase of land to be settled (m)), the enactment is not confined, as in the section which immediately follows, by any requisite of relationship between the devisee and the testator. This enactment entitles the issue in tail who survive the testator, whether (it should seem) any of the identical issue in existence at the death of the devisee should survive the testator or not, (for reason requires, while grammar does not absolutely forbid, the word such to be understood relatively to the issue, as regards only their quality of being inheritable under the entail (n)), to succeed to the estate tail, in the same manner as if the devisee had actually survived the testator, and had then instantly died, leaving the estate tail to descend; and the remainders, if any, will consequently be expectant on the estate tail, instead of being accelerated, as before (o), by the lapse of that estate. The provision in question, though it may be an improvement on the old law, yet seems open to the remark, that a gift in tail differs practically from a gift in fee, only in the circumstance of its requiring the donee to observe the formality of an inrolled assurance, in order that the gift may confer the absolute property; but the framers of the statute have assumed, that a testator, intending to give this dominion over the fee primarily to his friend A., must equally intend so to give it to the issue (perhaps, as regards the testator, the unknown issue) of A. 2. In the case of a child or issue of the testator dying in his lifetime leaving issue, one requisite is, that some (m) Ante, 93. (n) Sed quære. See Sugd. Wills, 114; but see also Fourth Rep. of Real Prop. Com. on what pringuished from ciple distin devises in fee. 2. Gifts to is sue of the tes tator, when, and CHAPTER V. how, saved from lapse; --and what the destination of the property un der the statute. Inapplicability as to lapse, where the gift is to a class; of the identical issue, living at the death of the deceased devisee or legatee, should also survive the testator; for the relative such, in this clause, has no other antecedent than issue left by the devisee or legatee (p); and here the mischief does not, as in the instance of the estate tail, dictate a rejection of the restrictive reading. The existence of issue of the devisee or legatee is, however, merely a collateral circumstance; for the property comprised in the devise or bequest is not given to such surviving issue, but is constituted part of the real or personal estate of the devisee or legatee, disposable by his or her will, and, if not so disposed of, transmissible to his or her real or personal representatives, unless intercepted by assignees in insolvency or bankruptcy. cases, this provision may, by its indirect operation, save the family of a deceased child from destitution; while, in others, it may transfer the paternal bounty to remote descendants, to creditors, or to strangers. As these enactments apply in terms to those cases only in of the provision which, according to the old law, the gift would have lapsed, they appear to leave untouched the common case of a gift to "sons," "daughters," or "children," as a class (q). The learned persons with whom this statute originated, represent the hardship of the old law as very apparent in the usual case of a devise to the eldest and every other son successively, according to seniority, in tail; for if an elder son (they observe) died in the testator's lifetime leaving issue, such issue was excluded, and the estate went to the younger branch of the family (r); and they proceed to point out, (p) Why was not the enactment thus expressed? "That where any person being a child or other issue of the testator, to whom &c., shall die in the lifetime of the testator, and any issue of such person shall be living at the death of the testator, such devise" &c. (4) Ante, 119. (") Fourth Rep. of Real Prop. Com. CHAPTER V. other sons in that in another usual case, where a testator gave his property among his children, and a daughter or other child died before him leaving him a family, such family was disappointed (s). Now, it should seem that in nine cases out of ten, the exclusion and the disappointment will be the same as before, and that the usual case is the very case which these enactments cannot help, unless themselves aided by a liberal exposition, founded on the equity of the statute. For, according to the letter of the thirty-second section, to first and if I devise to "my first and other sons successively in tail;" tail," or "to the first and other sons of A. successively in tail," and an elder son dies in my lifetime, leaving issue living at my death, such issue will not take; because the devise is to first and other sons as a class or denomination, to be ascertained at my death, so that the deceased son never was an object (t); and as his death, therefore, would not have occasioned a lapse, nor, indeed, have produced any effect whatever on the devise, the statute is, in point of expression at least, inapplicable. So, ac- to children. cording to the letter of the thirty-third section, if I give my property "to my children equally," and have ten children, nine of whom die in my lifetime, leaving issue living at my death, and the remaining child survives me, that child will, it should seem, take the whole, as before (u); for, by construction of law, the gift is to my child or children living at my death (x), and the deceased children, therefore, were not originally objects. But if the gift were "to my ten children," (I having ten children), or "to my (8) Fourth Rep. of Real Prop. Com. (t) See 1 Jarm. Pow. Dev. 307, n.; 3 Myl. & C. 697; 4 Myl. & C. 38. Note, that s. 24 makes the will speak from the death, with reference to the subject only of the gift. (u) Doe v. Sheffield, 13 East, 526; Viner v. Francis, 2 Cox, 190. Note, also, the language of the act-" Where any person, being a child or other issue of the testator, to whom " &c. (x) 2 Jarm. Pow. Dev. 303, 327. Secus, where children nomi the gift is to natim. |