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Published online by Cambridge University Press: 16 January 2009
Before 1926, entailed interests could exist in real property but were impossible in personal property. In order to create an entailed interest in real property, strict words of limitation (e.g., ‘in tail’ or ‘and the heirs of his body’) were essential except in the case of gifts by will. In a will, certain informal phrases, such as ‘and his issue,’ were sufficient. This situation was altered by section 130 of the Law of Property Act, 1925, whereby (a) even personal property may now be entailed, (b) strict words of limitation are now essential in every case.
1 Mr. Megarry also controverts (at pp. 53–54) some suggestions I made as to the possible significance of the word ‘therein’ in the sub-section, and I agree that his interpretation of the word is to be preferred. It has no direct bearing, I think, upon the present discussion.
2 When the latter construction is adopted, the class of issue participating as remaindermen does not close until A's death.
3 It seems to me that this line of supposition places Mr. Megarry in a difficulty, since it requires one to suppose that the sub-section applies to a gift' to A and his issue' even though the gift be found in some special context which distorts it into a determinable interest for A. This would seem difficult to reconcile (i) with Mr. Megarry's general thesis (see p. 53) that the sub-section invariably operates to produce an absolute interest for A, and (ii) with his contention (pp. 48–49) that the sub-section does not apply at all unless the phrase ‘and his issue’ appears in a context which, before 1926, would have conferred a mere entail.
4 I am not sure that Mr. Megarry is correct, at p. 49, in assuming that this possibility had escaped my attention.
5 This first argument receives its answer, I think, in my reply to Mr. Megarry's second and third arguments. Perhaps, however, I should add the following further observations upon it. (i) Mr. Megarry's text (e.g. p. 51, lines 6,18) tends to use here the word ‘interest,’ in preference to the plural word ‘interests’ which is used by the Act. The fact that the sub-section uses the plural word ‘interests’ is in itself a hint that interests (in coownership) are a contemplated result. The sub-section enacts that expressions which formerly created ‘an entailed interest’ are now to create ‘absolute, fee simple or other interests.’ It does not say, as Mr. Megarry would have it, that what formerly created ‘an entailed interest’ is now to create ‘an absolute or fee simple or other interest.’ (ii) Mr. Megarry's argument (pp. 50–51)is that the Act only provides that the phrase ‘and his issue’ is to create an interest (sic) and does not specifically permit the phrase to indicate also who is to get that interest. From this he argues that, in construing the phrase with reference to a pre-1926 gift of personalty, one must ignore the old personalty rules in so far as they decided who got it (which, of course, is the main thing that they did decide). This is in substance an argument that ‘and his issue’ must be construed as mere words of limitation (which was almost impossible with personalty before 1926)– as to which, see my answer to his third argument, post. Surely, it is unnatural to deduce from a direction that a phrase shall ‘create interests’ an implication that the phrase must not indicate at the same time who are to have those interests.
6 Mr. Megarry (pp. 61–52) evidently felt the difficulty here: strictly speaking, mere words of limitation surely ‘created’ nothing; they merely denoted the size of the estate which was being created by the Complete operative phrase ‘to A and his issue.’
7 Ante, pp. 52–53.Google Scholar Mr. J. H. C. Morris refutes these arguments, post, pp. 190–191.Google Scholar
8 Ex parte Wynch (1854), 5 De G. M. & G. 183Google Scholar, per Turner, L.J., at p. 225.Google Scholar
9 See, e.g., 6 C. L. J. 70–72.
10 It seems to me that Mr. Megarry's arguments, pursued to their logical conclusion, would rob the issue even more extensively than he cares to admit. There are four possible kinds of gift ‘to A and his issue’:–(i) realty given by will (R W), (ii) personalty given by will (P W), (iii) realty given inter vivos (R V), (iv) personalty given inter vivos (P V). In all except the first case (R W) the normal result before 1926 was co-ownership. In R W the normal result was an entail–a result which is now prevented by section 130 (1). The scope of sub-section 2, however, is not confined to R W; it is of general application (it refers to R W merely in order to identify the ‘expressions’ with which it is concerned—see Mr. Morris' second argument, post p. 191.Google Scholar Mr. Megarry's theory, therefore, would seem to rob the issue even of the co-ownership which they used to get in P.W, R V and P V.
1 Of his other arguments, Mr. Megarry admits that one is ‘somewhat verbalistic’ (p. 52), and that the other may be wrong (p.51).
2 Lyon v. Mitchell (1816), 1 Madd. 467.