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![handle is hein.slavery/ssactsengr0747 and id is 1 raw text is: CAMPBELL V. HARDING
Ii the first place, it is clear, if the bequest to the cousins if the brother and
nephews should die without issue had stood alone, without the clause explaining the
nature and object of the prior gift, that according to the authority of all the cases,
and to what is now admitted to be the clear law, it would have been void as being
a limitation after a general failure of issue; and that in that respect it makes not
the least difference whether the first legatee took an express estate for life, or whether
he took a larger interest. In either case the failure of issue spoken of is construed
to be a failure of issue at any period of time, the first estate is held to be enlarged
by implication into an absolute interest, and the limitation over is void for
remoteness.
[388] This doctrine has been so fully established by the case of Lore v. lVindham
(1 Lev., 290), where the estate of the first taker was expressly a life estate; and by
two cases in Freeman (3niford v. Lee, 2 Freem., 210, and Anon., ibid, 287), where
the gift to the first taker was to him generally without being so restricted, that it
is unnecessary to do more than refer to it now.
The next consideration is, whether any substantial distinction can be founded on
the subsequent clause :-The reason why I leave only the interest to my brother
Jacob and my two nephews is, that if they die without issue the money may go to
my relations. That clause seems to me rather to strengthen the Respondent's
argument that the cousins were entitled to take nothing so long as any issue of the
nephews were in existence, and that a general failure of issue therefore was in the
testator's contemplation. I will assume, however, as has been argued at the bar,
that this clause, coupled with the rest of the instrument, clearly shews that the
nephews to whom the annuity of £300 was given over in the event of the brother
dying without issue were to take by the gift a life interest only. The observations
of Lord Hardwicke in Trajffrd v. Boehm (3 Atk., 440), which have been referred to,
were originally misapprehended by Sir V. Grant in his remarks upon that case in
Boehm v. Clarke (9 Ves., 580); but he afterwards took an opportunity, when giving
judgment in IBarlow v. Salter (17 Ves., 479), to correct his mistake, and at the same
time to deny the proposition which Lord Hardwicke had been supposed to lay down,
that where the gift over is for life merely, that limits the failure of issue on which
the subsequent gift is made to depend to a failure at the death of the first taker.
[389] This proposition, so far from deriving any countenance from the judgments
of Sir W. Grant in Boehm v. Clarke and Barlow v. Salter, is directly opposed to them.
At all events it is not easy to see what bearing it can have upon a case like the
present, where the gift over with which the Court has to deal is a gift to the cousins,
in terms which would carry an absolute interest in the fund. The rest of the cases
referred to on behalf of the Appellants appear to me to have no application.
It is not necessary for the present purpose to decide, and it was not necessary for
the Defendants to argue the question, whether the nephews took mere life estates
or whether they took absolute interests; although looking to the wording of the
clause in which the testator assigns the reason for the peculiar form of his gift, the
words seem to import a general failure of issue and strongly favour the opinion that
they took absolute interests. The judgment of His Honour must be affirmed.
[390] CAMPBELL V. HARDING. July 19, 26, 1831.
[S. C. (sub. nom. Candy v. Campbell), 2 Cl. & Fin., 421 ; 8 Bli., N. S., 469; see Ellicombe
v. Goutertz, 1837, 3 My. & Cr., 153; Garratt v. Cockerell, 1842, 1 Y. & C. C., 507.
Followed, -Pye v. Linwood, 1842, 6 Jur., 618; Fiher v. [iebster, 1872, L. R. 14 Eq.,
289; Cf. Hutchinson v. Iottenham [1898], 1 1. R., 403; [1899], 1 I. R., 344.]
A testator by his will gave to Caroline, described as his natural daughter, a sum of
stock, and his house and land at C. ; with a direction that if she married, the
property should be settled solely upon herself and children; but in case of her
death without lawful issue, the money so left to her to be equally divided
betwixt his nephews and nieces who might be living at the time, and the land at
C. to his nephew J. H. : held, that Caroline took an absolute interest in the stock.
442
2 RUSS. & M. 388.](ViewImageLocal?handle=hein.slavery/ssactsengr0747&div=1&collection=&method=preview&ext=.png&size=3)