without leaving issue must be read 'having had no issue,' in order to carry into effect the intention of the testator."

In White v. Hight, 12 Ch. D. 751, the testator devised real estate to his granddaughter absolutely, and "after her decease, without leaving any issue" over. The granddaughter married and had a child. Held that, upon the birth of a child, the granddaughter's interest became indefeasible.

But in In re Ball, 36 Ch. D. 508, a testator bequeathed personal estate on trust after the death of A for B, and in case B died without leaving issue male for C. B died in the lifetime of A, having had only one child who died an infant in his father's lifetime. It was held that the gift over to C took effect. The court said: "Now the principle of those decisions is that the court will read the words 'without leaving' as equivalent to 'without having had,' if the result of so doing is to make the whole instrument consistent, to make a gift over fit in with the intention of the testator as previously expressed, and avoid divesting a previously vested gift. But unless that result is attained, the reason for the modification of the language fails, and I have been unable to find any case except White v. Hight, in which the effect of the construction has been not to avoid divesting a vested gift, but to leave a vested gift still liable to be divested,though only in a different event from that in which the divesting would have taken place if the word 'leaving' were construed literally. If the latter course, that is, construing the word 'leaving' literally, is adopted in the present case, the absolute interest [B] would be divested by his death without leaving issue then living. If the word 'leaving' is treated as equivalent to 'having had' the absolute interest of. [B] would be divested by his death without having had any child. Whichever view is adopted the will clearly contemplates the divesting in some event of the previously vested gift to [B]. I find no case except White v. Hight, in which the word 'leaving' is read as 'having had' with the result merely of altering the event upon which the divesting of a gift previously vested is to take place."

of

In re Ball was sustained on appeal in 40 Ch. D. 11 (59 L. T., N. S. 801), the court saying of the earlier cases: "In my opinion the principle of those cases

does not apply where it is clear that the testator means a vested gift to be divested in some event." White v. Hight was accordingly overruled.

In In re Hamlet, 38 Ch. D. 183; s. c., 58 L. T., N. S. 614; 36 W. R. 569, a testator gave personal estate and the proceeds of the sale of real estate to trustees upon trust for his daughter and only child for life, and after her death for her children, who, being sons, should attain twenty-one, or, being daughters, should attain that age or marry, with a gift over in case his daughter should "happen to die without leaving any child or children her surviving, or leaving such they shall all die without having obtained a vested interest in the said trust moneys, and without leaving any issue them, him or her surviving." The daughter had five children, who died unmarried in her lifetime, and only two of whom attained twenty-one. Upon the daughter's death it was held that the gift over took effect. The court said: "Most of the authorities are with reference to a limitation to a settlement in trust for the parent for life, then to children who attain twenty-one, and if the parent die without leaving children, over. If clildren attain twenty-one and all die in the parents' lifetime, the court, to prevent the vested interests from being divested, has read the word 'leaving' as though it were 'having' or 'having had,' a considerable liberty being thus taken with the actual words to effectuate what the court considers to be the paramount intention, in a marriage settlement, of securing portions to the children who live to attain vested interests in them.

The result of these decisions is that these words in a will, if the case is not a case of portions to children, to whom the testator was in loco parentis, would receive a construction according to their grammatical meaning, which would exclude a child who attained twenty-one and died in the lifetime of the tenant for life. But in a settlement or in a will where the testator was in loco parentis to the children intended to be benefited, the gift over might either be differently construed or disregarded."

See also Armstrong v. Armstrong, 21 L. R., I. 114, where In re Ball was followed, and White v. Hight criticised; which was also done in Clay v. Coles, 57 L. T., N. S. 682.

The issue of children who might be dead "leaving issue," held to take

deeming," a county clerk was held to have authority in his discretion to commence the publication sixteen months before that period. Hoffman v. Clark Co., 61 Wis. 5. "We cannot say that the clerk had no legal authority to make such an early publication. On

on

the same. They evidently con strued it as men ordinarily would, that a week was the period of time extending from Monday of one week to Monday of the next week following, and not until Tuesday of such week, and that the resolution, if introduced on Monday, had lain over four weeks when the fourth Monday thereafter had arrived, and that they were at liberty to act upon if then. This, we think, is the rational construction of the act, and clearly within the intention of the leg islature."

A building was let by a written agreement stating that C had taken it "from the thirtieth day of September." "The tenancy is for one year, commenc. ing on the thirtieth day of September instant." C entered at noon on that day and quitted at 4 P.M. on September 29th, following. Held, that he had gained a settlement by renting and occupying a tenement "for the term of one whole year at the least." Reg. v. Inhab. of St. Mary, El. & Bl. 816. WIGHTMAN, J., said: "There is nothing to take this case out of the general rule, unless the words 'one whole year at the least,' have that effect. But that phrase does not mean more than the phrase 'one whole year,' which we find in Stat. . and as to the last mentioned statute it has been expressly decided that a fraction of a day is not to be regarded in computing the year of hiring and service. Really the language of the two statutes is practically identical, and the construction of the one determines that of the other."

1. Where a list of unredeemed lands sold for taxes was required to be published "at least six months before the expiration of the time limited for re

dearned circuit court in the view that the legislature has left the time of making or commencing the publication, within certain limits, to the judgment and discretion of the county clerk, and that the courts cannot review the exercise of that discretion."

A grant of a cartway "eight feet wide at least," was held to entitle the grantee to more than eight feet if necessary for its use as a cartway. Roberts v. Wilcock, 8 W. & S. (Pa.) 464.

Where an act required that every planter should have a fence "at least five feet high," it was held that every part of the fence must be that high, and that although it was shown that cattle had passed a part of the fence five feet high, the plaintiff could not recover for the trespass, if any other portion were less in height, the law presuming that the cattle were first tempted to break into the enclosure by reason of the lowness of other parts of the fence. Polk v. Lane, 4 Yerg. (Tenn.) 36.

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2. White v. Hill, L. R., 4 E. Q. Cas. 270. And see Ex parte Hooper, 1 Drew 64, where "leaving" was held equivalent to "having." Also In Thompson's Trust, 5 De G. & Sm, 667; Kennedy v. Sedgwick, 3 K. & J. 540; Marshall v. Hill, 2 M. & S. 608; Bryden v. Willett, L. R., 7 Eq. Cas. 472; In re Brown's Trust, L. R., 16 Eq. Cas. 239; Du Bois v. Ray, 35 N. Y. 162; Maitland v. Chalie, & Mad. 243.

In Treharne v. Layton, L. R., 10 Q. B. 459, it is said: "We think that the authorities applicable to this case are so clear and so strong that we should not be justified in saying that they are wrong. The position they lay down is that where an estate is vested in children after a gift to a parent, then the gift over in case of the parent dying

without leaving issue must be read 'having had no issue,' in order to carry into effect the intention of the testator."

In White v. Hight, 12 Ch. D. 751, the testator devised real estate to his granddaughter absolutely, and “after her decease, without leaving any issue" over. The granddaughter married and had a child. Held that, upon the birth of a child, the granddaughter's interest became indefeasible.

But in In re Ball, 36 Ch. D. 508, a testator bequeathed personal estate on trust after the death of A for B, and in case B died without leaving issue male for C. B died in the lifetime of A, having had only one child who died an infant in his father's lifetime. It was held that the gift over to C took effect. The court said: "Now the principle of those decisions is that the court will read the words 'without leaving' as equivalent to 'without having had,' if the result of so doing is to make the whole instrument consistent, to make a gift over fit in with the intention of the testator as previously expressed, and avoid divesting a previously vested gift. But unless that result is attained, the reason for the modification of the language fails, and I have been unable to find any case except White v. Hight, in which the effect of the construction has been not to avoid divesting a vested gift, but to leave a vested gift still liable to be divested, though only in a different event from that in which the divesting would have taken place if the word 'leaving' were construed literally. If the latter course, that is, construing the word 'leaving' literally, is adopted in the present case, the absolute interest of .

. [B] would be divested by his death without leaving issue then living. If the word 'leaving' is treated as equivalent to 'having had' the absolute interest of . . . [B] would be divested by his death without having had any child. Whichever view is adopted the will clearly contemplates the divesting in some event of the previously vested gift to . [B]. I find no case except White v. Hight, in which the word 'leaving' is read as 'having had' with the result merely of altering the event upon which the divesting of a gift previously vested is to take place."

In re Ball was sustained on appeal in 40 Ch. D. 11 (59 L. T., N. S. 801), the court saying of the earlier cases: "In my opinion the principle of those cases

does not apply where it is clear that the testator means a vested gift to be divested in some event." White v. Hight was accordingly overruled.

In In re Hamlet, 38 Ch. D. 183; s. c., 58 L. T., N. S. 614; 36 W. R. 569, a testator gave personal estate and the proceeds of the sale of real estate to trustees upon trust for his daughter and only child for life, and after her death for her children, who, being sons, should attain twenty-one, or, being daughters, should attain that age or marry, with a gift over in case his daughter should "happen to die without leaving any child or children her surviving, or leaving such they shall all die without having obtained a vested interest in the said trust moneys, and without leaving any issue them, him or her surviving.' The daughter had five children, who died unmarried in her lifetime, and only two of whom attained twenty-one. Upon the daughter's death it was held that the gift over took effect. The court said: "Most of the authorities are with reference to a limitation to a settlement in trust for the parent for life, then to children who attain twenty-one, and if the parent die without leaving children, over. If clildren attain twenty-one and all die in the parents' lifetime, the court, to prevent the vested interests from being divested, has read the word 'leaving' as though it were 'having' or 'having had,' a considerable liberty being thus taken with the actual words to effectuate what the court considers to be the paramount intention, in a marriage settlement, of securing portions to the children who live to attain vested interests in them.

The result of these decisions is that these words in a will, if the case is not a case of portions to children, to whom the testator was in loco parentis, would receive a construction according to their grammatical meaning, which would exclude a child who attained twenty-one and died in the lifetime of the tenant for life. But in a settlement or in a will where the testator was in

loco parentis to the children intended to be benefited, the gift over might either be differently construed or disregarded."

See also Armstrong v. Armstrong, 21 L. R., I. 114, where In re Ball was followed, and White v. Hight criticised; which was also done in Clay v. Coles, 57 L. T., N. S. 682.

The issue of children who might be dead "leaving issue," held to take

whether they survive their parent or not in In re Smith's Trusts, 7 Ch. D. 665.

1. Roper on Leg. 1551; Forth v. Chapman, I P. Wms. 664; Read v. Snell, 2 Atk. 642; Lampley v. Blower, 3 Atk. 397; Wallington v. Taylor, I Sax. (N. J.) 314; Goodtitle v. Regden, 2 T. R. 720; Beresford v. Elliott's Exrs., I Dessaus. (S. Car.) 183.

2. In Forth v. Chapman, 1 P. Wms. 667, it is said: "As to the freehold the construction should be, if William or Walter died without issue generally, by which there might be at any time a failure of issue; and with respect to the leasehold, that the same words should be intended to signify their dying without leaving issue at their death The different clauses would have the different constructions above mentioned to make both the devises good; and it was reasonable it should be So, ut res magis valeat quam pereat." And see Crooke v. Devandes, 9 Ves. 197; Dendem Geering v. Shenton, 2 Chit. 662, where LORD MANSFIELD says: "In the case of land, there is no instance where the words 'not leaving issue' are confined to having issue at his death, but it would be otherwise of personalty, for the sake of intention, for that cannot take place but upon such a supposition."

See also Eichelberger v. Barnitz, 9 Watts (Pa.) 447; Rathbone v. Dyckman, 3 Paige (N. Y.) 30; Biscoe v. Biscoe, 6 Gill & J. (Md.) 236; Tongue's Lessee v. Nutwell, 13 Md. 425; Allender's Lessee v. Sussan, 33 Md. 11; Maryck v. Vanderhurst, Bail. Eq. (S. Car.) 48; Newkirk v. Hawes, 5 Jones Eq. (N. Car.) 265; Newnan v. Miller, 7 Jones L. (N. Car.) 516; Hawley v. Northampton, 8 Mass. 38; Whitford v. Armstrong, 9'R. I. 394; Miller v. Macomb, 26 Wend. (N. Y.) 229; Foley v. Foley, 17 Hun (N. Y.) 235; Ferris v. Gibson, 4 Edw. Ch. (N. Y.) 707; Moorehouse v. Cotheal, 1 Zabr. (N. J.) 480; Chetwood v. Winston, 40 N. J. L. 337; Drummond v. Drummond, 26 N. J. Eq. 234; Still v. Speer, 3 Grant (Pa.) 306; Wynn v. Story, 38 Pa. St. 166; Middlewarth's Admr. v. Blackmore,

V.

74 Pa. St. 414; Newton v. Griffith, I Harr. & Gill (Md.) 111; Usilton v. Usilton, 3 Md. Ch. 36; Robards Jones, 4 Ired. (N. Car.) 53; Miller v. Usilliams, 2 Dev. & Bat. (N. Car.) 500; Perry v. Logan, 5 Rich. Eq. (S. Car.) 202; Robert v. West, 15 Ga. 123; Moore v. Howe, 4 Monr. (Ky.) 199.

3. In Roe v. Jeffery, 7 Term 595, LORD KENYON said that "the distinction taken in Forth v. Chapman, that the very same words in the same clause in a will should receive one construction as applied to one species of property and another construction as applied to another, was not reconcilable with reason; but that if it had become a settled rule of property it might be dangerous to overturn it." The case was decided, however, on another point.

See also Porter v. Bradley, 3 Term 146. The application of the rule in this country was questioned in Hall v. Chaffee, 14 N. H. 215; Downing v. Wherrin, 19 N. H. 89. But in Ladd v. Harvey, 21 N. H. 526, in referring to the former case, the court said: "Although in that case some question was made as to the applicability of the doctrine here, still it will be better that suitors shall not be surprised by another rule of construction, and one different from that found in the books to be generally recognized in England and America."

In Bethea's Exr. v. Smith, 40 Ala. 420, it is said: "In this case we see no reason why any distinction should be made as to the vesting of the legal title between the real estate devised and the personalty bequeathed by the sixth clause of the will. If the one vests in the ultimate limitee, there is no reason why the other should not do so likewise. If this limitation of personalty was void at the ancient common law, and has only in modern times been upheld upon the analogies to such limitations of realty, we see no reason and are not aware of any principle, which would forbid the application of the rule with respect to the vesting of the legal title in the limitations of realty to such limitations of personalty.