THE WILL OF AN ENGLISH GENTLEMAN of the testator to share equally with each of the testator's own children. This, of course, is not at all desired, or proper, so the following is added : "Provided that the child or children collectively of any child of mine dead at my death or dying under the age of twentyfive shall take only such share as his, her, or their parent would have taken, if such parent had lived to take a vested interest." Both these plans — that of a vested gift with a clause of accruer and that of a con tingent gift — accomplish precisely the same result, but by quite a different series of clauses. Imagine, then, the hopeless con fusion which will result if there is uncer tainty as to which one has been adopted, or if the clauses belonging to one plan have been mixed with clauses belonging to the other. Yet this is apt to happen, and has happened constantly. In fact, I suppose there has been no more fruitful source of litigation regarding the construction of wills than just that sort of difficulty. There can no longer be said to be any doubt about which plan the English con veyancers prefer. During the last seventyfive years the evolution of opinion has been entirely in one direction. In the second edition of Bythewood and Jarmen, pub lished in 1833, one finds much prominence given to the first plan where the chil dren took vested interests and there was a clause of accruer. I am inclined to think that this was the first choice of the convey ancers at that time. Subsequent experi ence, however, has condemned it as the more clumsy method of effecting the desired results. In the last edition of Bythewood 's Conveyancing (dated 1889) it is almost entirely dropped and the learned editor declares1 that "the more usual and better course is to suspend the vesting till" the period of distribution arrives, i.e., in our case when the legatees reach twentyfive. Of course, with the discarding of the first 1 Page 891, vol. 7.
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plan of leaving vested interests in the children, its development has somewhat ceased, while the more acceptable plan of giving contingent interests we find more and more carefully worked out. You will observe that while the gift to the children of the testator was made contingent on their reaching twenty-five, the gift to the child of any deceased child of the testator is made to it absolutely without requiring it to attain any particular age. The reason for this is that a gift to the child of any deceased child of the testator on such grandchild reaching the age of twenty-five would be in violation of the Rule against Perpetuities and so void. That rule requires that the gift to the • grandchildren must be so limited that it is sure to take effect within twenty-one years after the death of the widow and children of the testator. If, therefore, the grandchildren — i.e., children of a deceased child of the testator — were not allowed to take till they reached twentyfive that might be more than twenty-one years after the death of the widow and all the testator's children. It would then be void. Nevertheless, the general plan re quires that all gifts be postponed, if possible, till the legatee reaches twenty-five. The ingenuity of the more recent- conveyancers has devised a clause which does the work so simply and effectively that you are surprised into an indescribable admiration for it. It is this : "Provided always: That if any grand child or grandchildren of mine should attain the age of twenty-one years before the expiration of twenty-one years from the time of the death of the survivor of my children and more remote issue (if any) living at the time of my death, then the • vesting of the share of each such grandchild shall be postponed to the expiration of such time of twenty-one years, or until the attainment by such respective grandchild to the age of twenty-five years, which shall first happen." Then, in order that there may be no pos sible gap in the limitations to the issue of the testator, it is provided also,
