242
77ic Green Bag.
authorities support Y. Y. C. Home v. cause they cannot sustain the burden cast upon them of showing that the party through French.1 But it is to be noticed that this conflict whom they make title survived.2 There is no of authority concerns merely the true con difference whether one party to the contest is struction to be given documents like those the heirs or next of kin, claiming that all gifts have failed, or merely a later devisee or in question. The divergence of opinion is as to how far an intention gathered from the legatee, claiming that all gifts prior to his have failed. The same principle governs. whole document may modify or supplement There are a few other cases, the facts of a particular phrase. Granting the English which differ from those in any of the groups construction, the rule for determining- the already discussed, but which involve the burden of proof remains the same. Per same principle. Two joint-tenants die to formance of the condition is one of the links gether. The representatives of each fail to in the devisee's chain of title. Though all prove survivorship. It seems that the /MJ prior devises fail, he is not entitled unless accrcsccndi fails for lack of this proof and the the condition was performed. He must, heirs or next of kin of each succeeds to his therefore, show survivorship of the testatrix interest.3 Husband and wife perish in the to make out his own case. same disaster, the wife owning choses-inA number of cases involve the application /áction which the husband had not reduced of the same rule as between substituted de visees or legatees under a will and the repre / to possession. His representatives must prove his survival to make out their claim sentatives of those for whom they are s of title and therefore, on failure to do so. the stituted, the latter having deceased in the representatives of the" wife are entitle:!.4 In same catastrophe as the testator. The repre Wollaston v. Berkeley5 the final ccstni of sentatives of the prior beneficiaries fail bea trust was the survivor of A and B. Sur liberal construction. Goods of Selwyn, 3 Hagg. EC. 748 (1832). Hut in Underwood v. Wing, 4 De-G. M. & G. vivorship could not be proven. A resulting 633 f 1855) the strict view was taken. This was adopted trust for the settler was declared." An inten in Wing v. Augrave and has since prevailed. Elliott т. Smith. 22 Ch. Div. 236 ( 18821; Goods of Alston. [1892] tion to dispose of the property fully could P. 142; Hartshome v. Willdns, î Old. 276 (Nova be gathered here just as in,Y. W. C. Home Scotia, 1860). It is perhaps worth remarking on ac count of the very commun opinion to the contrary', that v. French, but this fails of effect because Underwood v. Wing and Wing v. Augrave are entirely the person who was to have the property if distinct cases, though arising out of the same facts. Mrs. Underwood represented the next of kin of a surviv other dispositions failed cannot be deter ing daughter of the deceased husband and wife and was mined. Durrant v. Friend7 is an interesting claiming all the property except that over which the wife had merely a power of appointment. This latter prop erty was claimed by Mr. Augrave representing the de visees, in default of appointment by the wife, nominated by her father's will. 1 Middeke r. Balder, 198 Ill. 590, 601, 64 N. E. 1002 (1902); Fuller f. Linzee, 135 Mass. 468 (1883); Su preme Council -,-. Kacer, 96 Mo. Ap. 63, 69 S . W. 671.675 (1902) semble; Newell г. Nichols, 75 N. Y. 78 (1878); Southwell v. Gray, 72 N. Y.Supp. 342.346 (1901); Paden v. Briscoe, 8l Тех. 536, 560, -j S. W. 42 (1891); Hilde brandt ». Ames. 27 Tex. Civ. Ар. ^77> 66 S. W. 131 (1901); Males v. Woodmen, 70 S. W. 108 (Tex. Civ. Ар. 1902). The majority of these cases involved the construction of insurance contracts, not wills. But it is more difficult to give a liberal construction to a contract than to a will since two parties join in making it and it must appear that both used the words in the non-literal sense. These insurance contract cases will be consid ered as a class later. They are cited here merely on the question of construction.
1 Mason?•. Mason. I Meriv. 308 (1816); Goods of Sel wyn, 3 Hagg. EC. 748 (1832); Barnett r. Tugwell. 31 Beav. 2-52, 240 (1862); Y. V. C. Home r. French. 187 U. S. 401, 23 Sup. Ct. 184 ( 1902) reversing Faul 7>. Hulick. 18 D. C. App. 9 (1901); Newell r. Nichols. 75 N. Y. 78 (1878). In Elliott -•. Smith, 22 Ch. Div. 236 (1882) the substituted devisees failed because of the strict construction of a condition in the devise to them. 3 Bradshaw f. Toulmin, 2 Dick. 633 (1784). Lord Thurlow said the heirs of each one would take as jointtenants with the heirs of the other. Possibly they should be considered tenants-in-common. 2 Blackstone, Com. 180. 4 Scrutton?'. Patillo, L. R. 19 Eq. 369 (1875). Moehring v. Mitchell, I Barb. Ch. 264 ( N. V. 1846 ) is centra. s I.. R. 2Ch. Div. 213 (1876).
- Could the representatives of A and В have joined
their interests and excluded the resulting trust? See p. "'5 I)eG.&S. 343 fi85i).
