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that an executory devisee of real estate who was to take upon the death of the first taker without leaving issue him surviving, could not maintain a bill to prevent waste against the first taker in possession unless there were a strong probability that the event would happen upon which the gift over would take effect.

CHAPTER VII.

CROSS LIMITATIONS.

§ 195. Implication of cross limitations-General principles: In Doe v. Webb,1 cross remainders were implied where the devise was to daughters in tail as tenants in common and in default of issue of the daughters then to the testator's right heirs. This result was reached upon the ground that if you did not imply cross remainders, then, on the death of a daughter without issue, the right heirs would take a moiety of the estate, whereas the intent was that the right heirs should take the whole estate together after the death of all the daughters without issue. In Lombard v. Witbeck,2 the authority of Doe v. Webb and the usual rule for the implication of cross limitations were recognized at length. Our supreme court there quotes Jarman's summary 3 of Sir G. Jessel's statement of it: "You must ascertain whether the testator intended the whole estate to go over together. If you once found that to be intended, you were not to let a fraction of it descend to the heir-at-law in the meantime. You were to assume that what was to go over together, being the entire estate, was to remain subject to the prior limitations until the period when it was to go over arrived.

Suppose estates be limited to A, B and C for life as tenants in common with a gift, on the death of the survivor, to their children. A and B die. If cross remainders be implied then C will take the whole till his death. Otherwise, two onethird interests will descend to the testator's heirs-at-law. the original gift be upon trust so that the life estates are equitable, then the heirs will take only until the death of C, when the ultimate future interest will come in. The existence of this gap into which the heirs come for a short period only,

11 Taunt. 234 (1808) (5 Gray's Cas. on Prop. 217).

2173 Ill. 396, 409-411.

32 Jarman on Wills, (R. & T. ed.) p. 552.

4 Maden v. Taylor, 45 L. J. N. S. 569 (1876), (5 Gray's Cases on Property, 229, note).

is the ground upon which the cross remainders in the case put are regularly implied." It is argued from the fact that the heir is to be ultimately excluded that there is an expressed gift for the gap into which he would come. If there be no trust-i. e., if the estate be legal-the result is the same. It might be urged that in such a case, upon the death of A, the heir would take and the future interest would be entirely destroyed as to one-third of the estate. But the rule which operates to destroy the future interest is a rule of law which defeats the intention of the testator.? The actual intent expressed is exactly the same as when the interests were equitable. The construction, therefore, which gives us cross remainders by implication in that case should raise them, in the same way, where the interests are all legal. It is so held.8

§ 196. Cheney v. Teese and Madison v. Larmon:10 In Cheney v. Teese the testator devised to his grandchildren absolutely, after the death of two daughters, who were given life estates as tenants in common. The supreme court first held that the grandchildren were not to take till after the death of both daughters. That would seem to have made a plain case for the implication of cross remainders for life. The court, however, held that each daughter took an estate for her own life in one half and an estate for the life of the other in the same half. Upon the death, therefore, of one daughter before the other, the heirs or devisees of the deceased daughter would take instead of the other daughter. The ground for this construction in preference to that of cross remainders by implication is not perceived.

Madison v. Larmon11 was a case where the implication of cross remainders for life was to some extent allowed, but where it might, it is believed, have been upheld to a much greater degree. The testator here left two children and fifteen grandchildren. Each one of these children and grandchildren were

5 Scott v. Bargeman, 2 P. Wms. 68, (1722), (5 Gray's Cas. on Prop. 213); Armstrong v. Eldridge, 3 Bro. C. C. 215 (1791), (5 Gray's Cas. on Prop. 214).

6 Fearne, C. R., 310, 311. 7 Ante, § 89.

8 Ashley v. Ashley, 6 Sim. 358, (1833), (5 Gray's Cas. on Prop. 226).

9 108 Ill. 473.

10 170 Ill. 65.

11 170 Ill. 65.

given, in different proportions, shares in the real estate involved, as tenants in common for life. The testator's son took two shares for life, with a further gift of the same two shares to the son's children who survived him for life. Each of the five children of the son living at the testator's death took one share for life. The testator's daughter took six shares for life, with a contingent gift of the same six shares to those of her children who survived her, for life. Each of the daughter's ten children, living at the testator's death, took a share for life. The two children of a deceased child of the testator took each a share for life. Then it was provided that if any of said grandchildren of the testator "shall die leaving no issue alive at the date of such death the share or shares of the child so dying shall be equally divided among the brothers and sisters, to be held by them, respectively, for and during their lives." There was a final gift when all the seventeen life tenants in existence at the testator's death had died, to all the grandchildren then living of the testator, and the issue of any deceased grandchild. Here, then, we have a gap between the time when the larger part of the life estates terminate and when the final gift of the whole estate is to take effect. If the gifts be carried out according to the intention of the testator it is apparent that the heirs-at-law will have to step in and fill that gap temporarily. The case would seem to be a perfectly proper one, therefore, to imply cross remainders in general. But such cross remainders cannot be implied among the seventeen life tenants altogether, nor yet between the fifteen grandchildren. The testator has clearly indicated that the grandchildren are to be regarded in three groups, viz., the children of each one of his three children form a separate group. The cross remainders, then, must first be implied among the grandchildren of each group. Such is certainly the position taken in Judge Tuley's opinion, which was adopted as the opinion of the supreme court.12 This is as far as the learned judge went in implying cross remainders. He seems, in effect, to have refused to imply them between the different groups of grandchildren. It is the dictum of the opinion that if all the grandchildren of one group die without having issue before the time for vesting in possession of the 12 170 Ill. 65 at page 70.

ultimate limitations, the final gift as to the shares limited to that group will be destroyed 13 under the rule which causes certain contingent future interests after a particular estate of freehold to fail unless they take effect by way of succession.14 It is an interesting question whether this is not a case where cross remainders for life should not be so implied as to fill up completely the possible gap occurring prior to the time of taking effect of the ultimate gift.15

$197. "Survivor" construed as "other": As a general rule survivor is to be taken in its primary or literal meaning. If, therefore, you have a gift to A, B and C, and if either die without having issue him surviving, then his share to go over to the survivors, and A die first leaving children and then B die without leaving issue him surviving, C being the only survivor at that time, will take all of B's share.16 Under certain circumstances, however, it has become the settled rule that "survivor" shall be construed "other," so that in the case just put B's share will go, one-half to A's children and one-half to C.17 The rule may be thus stated: Where by taking "survivor" literally there is one contingency not provided for, upon the happening of which the property will pass to the heir-at-law or next of kin as on an intestacy, if the other contingencies are provided for, including the ultimate gift over, "survivor" is to be construed "other."

Thus, in Lombard v. Witbeck 18 there was a devise to trustees for the benefit of three grandchildren during their lives, with a provision that if a grandchild died without leaving issue "then one-third to go to survivors of said three grandchil

13 170 Ill. 65 at p. 78. 14 Ante, §§ 81-928.

15 This could be done by implying cross remainders for life, as Judge Tuley seems to have done, among the individuals composing each group of grandchildren, the cross remainders being contingent upon the grandchildren dying without leaving issue surviving. You might then imply cross remainders for life among the several groups of grandchildren con

tingent upon the death of all the grandchildren of a group who die without issue surviving. Finally, cross remainders might be implied among the two children of the testator, contingent upon the death of either without issue surviving.

16 Duryea v. Duryea, 85 Ill. 41. 17 Same result by expressed language: Pitzel v. Schneider, 216 Ill. 87.

18 173 Ill. 396.

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