transgressing the rule against perpetuities; (u) one of two things, therefore, is clear, either such agreements are not valid, or, if they are valid, they are governed by rules which do not hold good with regard to ordinary trusts, and, in either case, no argument can be drawn from this source in support of the decision in Bassil v. Lister. Probably, the partnership agreements in question would be held good on the principle of the decision in Bateman v. Hotchkin, (x) before noticed, that an accumulation which is capable at any moment of being put an end to, (y) can infringe neither the statutory rule against accumulation, nor the common law rule against perpetuities. Lastly, as to the question what would become of settlements of policies of assurance with trusts for keeping them on foot by payment of the premiums, the answer seems to be, that they are either cases where security is given for a debt, or cases of settlement on a marriage, in which one of the settlors is the person during whose life the accumulation is to be made, both of which classes are within the exceptions of the statute under which a direct trust for accumulation would be good; and it is conceived that there is no authority for saying that any other settlement of policies of assurance are good, where a direct trust for accumulation would not also be good.

It will be observed, that the remarks of the learned judge are irrespective of the fact, that the policies were effected in the testator's lifetime; his decision was, that insurance is not a mode of accumulation affected by the statute, and it would, therefore, have been the same, if the policies had been effected after the testator's death. By giving small conditional legacies, a testator could easily procure persons, after his death, to allow policies to be effected on their lives, in their names, and to assign them to the testator's trustees, than which an easier and cheaper mode of accumulation could not be devised.]

[(u) Palmer v. Holford, ante p. *253. (y) See Downs v. Collins, 6 Hare 418.] (x) Ante p. *275.

*CHAPTER X.

FROM WHAT PERIOD A WILL SPEAKS.

From what speaks.

period a will

For some purposes a will is considered to speak from its date or execution, (a) and for others from the death of the testator: the former being the period of the inception, and the latter that of the consummation of the instrument. In determining to which of these the language points, it is necessary to distinguish between wills that are subject to the act 1 Vict., c. 26, and those which are regulated by the pre-existing law.

First, with regard to wills made before the act.

Expressions of refer to date of

present time

will.

It may be stated, as a general rule, that wherever a testator refers to an actually existing state of things, his language is referential to the date of the will, and not to his death, as this is then a prospective event. Such, it is clear, is the construction of the word "now," or any other expressions pointing at present time.

construed.

Thus, a devise to the descendants now living of A has been held to comprise the descendants living at the date of the will, "Now," how exclusive of such as come into existence between that period and the death of the testator, (b) and who would, but for this (a) Date and execution relatively of construction, the effect would someconsidered. In this chapter, and indeed throughout the present work, the date and the period of execution are assumed to be identical; which, it is obvious, may not be the case, and then the question would arise-which is to predominate? It is conceived that, for some purposes, the date, and for others the time of execution, would do so. In regard to the will's capacity of operation on real estate, (supposing, of course, the will to be subject to the old law,) the period of the actual execution would be the material fact; but in regard to points

times, perhaps generally, depend on the date, or the time of apparent execution : for instance, if a testator dated his will 1st January, 1830, and executed it on the 1st June in the same year, a bequest in such will of "all the consols now standing in my name," possibly might be held to pass the consols only of which he was possessed on 1st January, and not what he had acquired between the date and execution, and which he held on 1st June. [See Randfield v. Randfield, 8 H. L. Cas. 225.]

(b) Crossley v. Clare, Amb. 397, 3 Sw,

restrictive addition, have been let in; (c) and the same construc*tion has obtained, even where the word "now" is combined with a term which could not have full effect, according to its technical import, unless used prospectively, as in the case of a devise to the heir male of the body of A "now living," under which the heir apparent of A living at the date of the will has been held to be entitled; so that the word "heir" was made to surrender its primary and proper signification, in order to give effect to the word "now," with which it stood associated. (d)1

Verbs in

present tense.

On the same principle verbs in the present tense have a similar effect in restricting a devise or bequest to the subjects or objects existing at the date of the will, though in some of the cases considerable reluctance appears to have been manifested to carry out this principle, where its effect would be inconveniently to narrow the scope of the will, by excluding any who might be presumed to be intended objects of the testator's bounty.

320, n. See also Att.-Gen. v. Bury, 1 Eq. Cas. Ab. 201, pl. 12, 8 Vin. Abr. 328, pl. 2; Abney v. Miller, 2 Atk. 593; Blundell v. Dunn, cit. 1 Mad. 433; see also All Souls' College v. Codrington, 1 P. W. 597; but see Rowland v. Gorsuch, 2 Cox

187.

(c) As to the construction of gifts to classes, vide ch. XI. on Lapse, ch. XXX. on Devises to Children, [and ante p. *268.]

(d) James v. Richardson, T. Jon. 99, 1 Eq. Cas. Ab. 214, pl. 11, 1 Vent. 334, 2 Lev. 232, Raym. 330, 3 Keb. 832, Poll. 457; [Burchett v. Durdant, on same will, Skin. 205, 2 Vent. 311, Carth. 154.]

1. See also 1 Roper on Leg. 248; Wms. Ex'rs (6th Am. ed.) 1544. So a legacy to "my present attendant physician," refers to the time of making the will, Everett v. Carr, 59 Me. 325. And, in like manner, a gift of property now owned or possessed by the testator, Ross v. Ross, 12 B. Mon. 438; Quinn v. Hardenbrook, 54 N. Y. 83; Board of Education v. Ladd, 26 Ohio St. 210; 1 Redf. on Wills 380. Hutchinson v. Barrow, 6 Hurlst. & Norm. 583, gives like effect to a devise of a messuage at W., containing about twenty

66

acres, now occupied by me," and excludes from such devise adjoining property afterwards acquired by testator, and occupied by him at the time of his death. And, in Ex parte Champion, 1 Busb. Eq. (N. C.) 246, "all my real estate," was held to include all at his death. As to the effect of present words as modified by the English act of 1838, or its American equivalents, see post. In Lorieux v. Keller, 5 Iowa 196, it is said that a will, whenever dated and published, will take effect only at the death of the testator; and in Thorndike v. Reynolds, 22 Gratt. 21, 32, it is said by Anderson, J.: "The statute provides that it shall be construed to speak and take effect, as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. Code of 1860, chap. 122, § 11, p. 573." In this case it was held that if a husband gives, by will, to his wife, power to dispose in his lifetime, by will, of property devised to her in his will, his will must be intended to take effect from its date, and so must her will in execution of the power, though not to divest and pass title in the lifetime of her husband or herself.

Thus, in Wilde v. Holtzmeyer, (e) Sir R. F. Arden, M. R., expressed an opinion that a bequest of "all the property I am possessed of" would, if unrestrained by the context, extend to all the testator's personal estate at his death.

So, in Bridgman v. Dove, (f) it was held that a charge of all the debts I have contracted since 1735, extended to all debts owing by the testatrix at her decease, including those she contracted after the period referred to; [and in Bland v. Lamb, (g) the words "I may have forgot many things, if such there is, it is to be thrown into the lump for the benefit of the legatees," were held by Lord Eldon to carry the residue at the testator's death.]

Again, in Ringrose v. Bramham, (h) Sir L. Kenyon, M. R., held that a bequest of £50 "to A's children, to every child he hath by his wife B," to be paid to them as they should come of age, spoke at the time the will took effect, so as to let in all the children then living. The circumstances of the case, however, though not expressly adverted to by his Honor, perhaps aided the construction. The testator had directed a sum of money to be placed in the hands of a person until the children came of age, which exceeded the sum which would have been necessary for the purpose if the legacy were confined to the children then in existence. In regard to gifts to children, Gifts to chilindeed, an anxiety to include as wide a range of objects as possible has so powerfully influenced the construction, that such cases are to be regarded as sui generis. To this anxiety is also to be ascribed the rule, which constitutes another exception to the doctrine under consideration, that a gift to children "begotten" extends to children born after the date of the will; and a gift to children "to be begotten" includes those antecedently in existence. (i)

dren

To return, however, to the general subject, it may be stated that where a testator, in a will which is regulated by the old law, refers to a specific subject of gift, he is considered ()

(e) 5 Ves. 816.

(f) 3 Atk. 201.

[(g) 2 J. & W. 399.]

(h) 2 Cox 384.

Doctrine as to quests.

specific be

would be a specific bequest, though not liable to ademption, Bothamley v. Sherson, L. R., 20 Eq. 304. A gift of property "to which I am entitled under the

(i) Co. Litt. 20 b; [see as to this, post will of A" was held to pass money afterch. XXX.

(j) Unless he expressly refer to the state of facts at his death; as, by bequeathing all his horses, or all his stock, belonging to him at his death: this

wards received by the testator under that will and invested in his own name, it being still traceable, Morgan v. Thomas, 6 Ch. D. 176.

as pointing at the state of facts while he is penning the instrument, and not at the time of his decease, even though he may not have used the word "now," or any other adverb emphatically denoting present time. The doctrine relating to the ademption of specific bequests stands upon this principle. Thus, if a testator, before the year 1838, having a leasehold messuage, or a sum of £1000 consols, bequeathed "all that my messuage in A," or "all that sum of £1000 consols standing in my name," he is considered as referring to the house or the stock belonging to him when he made his will; and, therefore, if he subsequently disposes of such house or stock, the bequest fails, though he may at his decease happen to be possessed of a messuage or a sum of stock answering to the description in the will. (k) [And the rule was the same where the testator having stock in his possession at the date of his will bequeathed it as "all my stock," and afterwards sold the stock and bought new, or added to the old: in the one case the bequest failed altogether, and in the other comprised only the old stock.](

Effect of renewal upon bequest of leaseholds.

And a new estate in leasehold property, acquired by a subsequent renewal of the lease or otherwise, is no less out of the reach of a specific disposition of such property, as ordinarily expressed, than an interest in any other property answering to the same locality; it being considered that the testator, when referring to the property in question, had in his contemplation exclusively the specific interest in it of which he was possessed when he made his will, though he has not in terms referred to such interest, but has used expressions descriptive of the corpus of the property: as in *the case of a bequest of "all my tithes and ecclesiastical dues at W.;" () or "the perpetual advowson and disposal of the living or rectory of W. forever, together with the tithes of all sorts thereof;" (m) or "all my leasehold estates in the parish of C." (n) In all such cases the renewal of the lease under the old law revoked the bequest, or rather, to speak more accurately, withdrew from its operation the property which was the subject of disposition: in short, effected what is technically called an ademption.

But though the general principle has long been settled, yet questions often arose in consequence of the context of the will affording

(k) Pattison v. Pattison, 1 My. & K. 12. (1) Cockran v. Cockran, 14 Sim. 248. See also per Wood, V. C., Goodlad v. Burnett, 1 K. & J. 347.

(1) Rudstone v. Anderson, 2 Ves. 418. (m) Hone v. Medcraft, 1 B. C. C. 261. (n) Coppin v. Fernyhough, 2 B. C. C.

291.