Original and substitutional gifts. render the gift contingent on the survivorship of the persons intended to be benefited at the determination of the preceding estate, and under these circumstances only those members of the class who so survive can take (a). Thus, under a devise to A, remainder to the children of B who shall be living at the death of A, the remainder is contingent until A's death, and those children who are then surviving will take the whole estate (b). Where there is a contingent gift to a class, as in the above instance, and a subsequent disposition in favour of the issue of such members of the class as are dead at the determination of the preceding estate, the question arises whether the issue are to take by way of substitution for their parents (c), or as independent and original beneficiaries (d). If the gift be by way of substitution, then it will fail unless the parent survive the testator, and it will, even as regards the issue, be contingent until the death of the owner of the preceding estate (e). If, on the other hand, the gift to the issue be original, then it will take effect notwithstanding the parent die before the testator, or notwithstanding he be dead at the time the will is made. Thus, where there was a devise to A for life, remainder to such of A's nephews and nieces as should be living at A's decease, but if any or either of them should then be dead leaving issue such issue should be entitled to their father's or mother's share, it was held that the children of a nephew who died during the testator's lifetime took by way of original (a) Cf. Williams v. Haythorne ; Williams v. Williams, L. R. 6 Ch. 782. (b) Selby v. Whittaker, L. R. 6 Ch. D. 239. (c) Cf. In re Hotchkiss's Trusts, L. R. 8 Eq. 643; Christopherson v. (d) Cf. In re Woolrych, deced.; Harris v. Harris, L. R. 11 Ch. D. 663. (e) West v. Orr, L. R. 8 Ch. D. 60; Hunter v. Cheshire, L. R. 8 Ch. 751. gift, and that the share to which their parent would have been entitled had he survived A vested in them on the testator's death so as to be transmissible although they also predeceased A (a). In this instance it will be observed that it was the children of the nephew who took the benefit of the gift; this leads us to allude to the Rule in Sibley v. Perry (b), under Rule in Sibley v. which the word issue, which in legal phraseology is sufficient Perry. to include descendants of any degree, is restricted to children. The Rule has been thus stated-"As a general rule, when you find a gift to a person and then a gift to the issue of that person, such issue to take only the parent's share, the word issue is cut down to mean children (c)." This Rule is strictly limited in its application to cases where the word issue is used, and where no repugnancy results in interpreting issue to mean children; hence, the Rule does not apply where the word descendants is employed, nor where, after the gift to issue, there is an executory devise over (d). As between the original members of a class to whom a gift is made generally, there is a joint tenancy, but as between those members who survive and the issue who take a deceased parent's share, there is a tenancy in common, whilst the issue of any particular parent take inter se as joint tenants (e). creating In construing testamentary gifts to a class it should be Words remembered that words implying division or distribution will tenancy in in general have the effect of creating a tenancy in common. (a) Martin v. Holgate, L. R. 1 H. L. | 175. (b) 7 Ves. 522. (c) Ralph v. Carrick, L. R. 11 Ch. D. 882; per James L. J. (d) lb.; Ross v. Ross, 20 Beav. 645. (e) Heasman v. Pearse, L. R. 7 Ch. 275; Penny v. Clarke, 1 D. F. & J. 425. common. No lapse where tenant in common as member of a class. Thus, a devise to A for life, remainder to the children of B, "to be equally divided between or amongst them," or "share and share alike," will render the children of B tenants in common (a). Of the share of such tenant in common no lapse can take place so long as there is any member of the class would take capable of taking anything under the gift (b); for where there is a gift by a testator to a class, the rule is that those members of the class who are at his death capable of taking take the whole, the gift being construed as showing an intention on the part of the testator that the class shall take so far as the law allows (c). Scope of following observa tions. SECTION III.-CONVEYANCING AS MODIFIED BY RECENT LEGISLATION In the foregoing pages an attempt has been made to give an outline of those fundamental principles and rules the observance of which respectively is imperatively required in the transfer of the several kinds of property recognized by English law. To develop those principles and rules, by showing their application in detail to the practical exigencies of business, and to treat at length of the instruments which are specially adapted to the nature of different transactions, would fall within the province of an elaborate system of conveyancing. This is beyond the scope of the present work, the design of which is limited to such an exposition as will facilitate the draftsman's labours in their most modern aspect. We, accordingly, (a) Morley v. Bird, 3 Ves. 629; S. | P. 701; Dimond v. Bostock, L. R. 10 C. Tud. L. C. 3rd ed. 876. (b) Fell v. Biddolph, L. R. 10 C. Ch. 358. (c) In re Coleman and Jarrom, L. R. 4 Ch. D. 165. do not propose to deal consecutively with the forms and incidents of different classes of conveyances; our task will be confined to a summary and illustration of the important changes introduced in relation to the subject in hand by recent legislation, especially by that comprehensive measure—the Conveyancing and Law of Property Act, 1881, to which we shall first address ourselves. Law of Act, 1881. This laborious piece of legislation owes its existence to the Origin of Convey. genius of Lord Cairns, who, whilst on the Woolsack, intro- ancing and duced during the Parliamentary Session of 1880 (a), the Property original bill, together with three other bills-viz., the Settled Land Bill, the Solicitors' Remuneration Bill, and the Limitation of Actions Bill (b). These bills were read a third time in the House of Lords, but in the Commons only one of them -namely, the Conveyancing and Law of Property Bill-ever got as far as a first reading. In the following session the same bills were re-introduced by their noble Author, and read in the Lords a first time on 10th January, and a third time in February, 1881. Ultimately, the Settled Land Bill and the Limitation of Actions Bill failed to pass the Commons, but the two other bills, with certain modifications, became, respectively, the Conveyancing and Law of Property (d), and the Solicitors' Remuneration (e) Acts, 1881. arrange In its very title, the Conveyancing and Law of Property Title and Act, 1881, betrays a want of logical arrangement, which is ment of throughout characteristic of the disposition of its substantive the Act. (a) 20th May, 1880. (c) 17th June, 1880. (d) 44 & 45 Vict. c. 41 Classifi cation of clauses. clauses. According to English jurisprudence, conveyancing is essentially founded on the laws affecting property (a); the natural order, therefore, of any statute amending the rules that govern the transfer of property would be to begin with changes which relate to the mode and conclude with changes which relate to the form of conveyancing; hence, if the above statute had been framed with logical precision, its more appropriate title would have been the Law of Property and Conveyancing Act, 1881. The actual title, however, describes the actual measure, the general plan of which is wanting in scientific method. This defect in itself renders it extremely difficult to present an adequate account of the numerous provisions of the Act, which extend over no less than seventy-three sections and four schedules; and the difficulty of explanation is enhanced by certain flagrant blots solely attributable to the apathy and haste with which the bill was ultimately passed. As a notorious instance of blundering amendment we may refer to Part I. of the First Schedule, where, amongst the statutes affected by the Act, are enumerated the statutes relating to judgments, Crown debts, and lis pendens, which, in consequence of the Sixth Section of the original bill having been struck out in the Commons, nevertheless still continue to be in full operation. Strictly speaking, the clauses of the Act cannot be classified under the two heads-1, Conveyancing Clauses, and 2, Law of Property Clauses, for every clause can be brought under the latter head, inasmuch as a change in the form of a conveyance which has been hitherto required by law is ex vi termini a change in the law of property. There is, however, (a) Ante, p. 3. |