an estate was made contingent on the marriage of a daughter with consent of trustees.

In other cases the testator names a period of life different from that of legal majority, as the term at which payment shall be made, and which has accordingly been termed conventional majority, as in the cases of Blackwood v. Dykes (26 Feb. 1833, 11 S. 443), where trustees were directed to hold heritable property for behoof of the testator's son, until he should arrive at the age of 25 years, when they were to convey the property to him; and Reid v. Coates (10 March 1809, F. C.), where a residue was made payable to the heir on his attaining the age of 27. In other cases the period of division has been fixed with reference to the age of one of the children of the family; as, for example, on the youngest child attaining majority (Scheniman v. Wilson, 25 June 1828, 6 S. 1019), or the age of 18 (Clark v. Paterson, 5 Dec. 1851, 14 D. 141), or the age of 36 (Broun v. Campbell, 16 March 1855, 17 D. 759). It is scarcely necessary to remark, that the substitution of a conventional term in place of the legal age of majority is of no importance as an element in the determination of questions as to suspension.

There is another element which may generally be disregarded wherever minority is the occasion of postponement. We refer to the circumstance of a liferent being interposed, and thereby causing a further postponement of the period of division. The observations which have already been made regarding the effect of postponement to a time certain, relieve us from the necessity of proving that a clause merely postponing payment during the currency of a life interest, unaccompanied by a limitation to survivors or other contingent destination, does not per se suspend the vesting of the beneficial interest. Accordingly, if the period appointed for payment is dependent both upon the expiry of a liferent and the attainment of majority, and if there is such contingency in the destination as will necessitate a suspension of vesting during minority only, the succession will vest at majority. The expiry of the liferent during the minority of the fiar will not accelerate the vesting of the succession, nor will the continuance of the liferent after the beneficiaries are major prevent the acquisition of a vested interest (Matthew v. Scott, 21 Feb. 1844, 6 D. 722). If, however, the contingent destinations are intended to cover the event of a failure, either during minority or the subsistence of the liferent, the vesting will necessarily be deferred until the exhaustion of both the periods of contingency.

In a systematic exposition of the law, it is more conducive to clearness to consider each ground of postponement separately. But in practice it will be found that, as the presumption for the suspension. of vesting is much stronger in the case of a condition by which payment is made contingent on the attainment of majority, than in the case of a mere suspension for the benefit of a liferenter, the construction of the provision with reference to vesting is virtually determined by the former element.

It was at one time maintained that the maxim of the civil law, dies incertus pro conditione habetur, applicable in its original acceptation to matters of contract, ought to be applied inflexibly to the interpretation of clauses postponing payment in deeds of settlement. A rigorous extension of the maxim would doubtless have relieved the Court from all difficulty in dealing with the class of cases under consideration. Rights emerging at majority or marriage being affected with a radical uncertainty as to whether the beneficiary shall ever attain the status upon which payment is made dependent, it would follow, if effect were given to the maxim, that in every family settlement making provision for the care of the property of minors, the period of vesting must be coincident with the period of division. It will be seen that this is, in fact, the rule of construction applied to general and special legacies, as well as specific provisions of heritable property. But in the case of destinations of residue it was seen that the strict application of the maxim would lead to injustice; because, unless the settlement provided in express terms for the contingency of failure during the period of minority, the effect was, that the residuary interest would in that event fall as a lapsed succession to the next of kin, instead of devolving, as the settler probably intended, upon the heirs of the residuary legatee or his surviving colegatees. Naturally, therefore, the leaning of the Court has been in favour of the principle of vesting a morte testatoris. It has accordingly been laid down, without derogating from the authority due to the rule as to dies incertus, as presumptive of postponed vesting, that slight evidence of a contrary intention on the part of the testator shall suffice to overcome the presumption, and fix the period of vesting as at his death.

In the further elucidation of the subject, it will be convenient to classify the cases with reference to the character of the interests the postponement of which is in question.

Section 1. Case of a Postponed Residuary Interest, either (1) without a Contingent Destination, or (2) with a Destination over or clause of Survivorship.

1. In the decided cases falling under the first division of this section, the element of intention does not appear to have received much attention. The leading authority is Torrie v. The King's Remembrancer (31 May 1832, 10 S. 597). The testator had appointed the residue of his heritable and moveable estate to be paid over to his two natural children, 'equally betwixt them, share and share alike, and their heirs and assignees, the provisions being declared not to be payable until they shall respectively attain the age of majority or be married. Both children survived; one died a minor. No provision was made for the application of the accruing interest. This fact, coupled with the conditional institution. of heirs, was supposed to be so manifestly suspensive of vesting (see Bell v. Cheape, 21 May 1845, 7 D. 614), that the point was conceded, and the argument for the surviving residuary legatee rested on the doctrine of the jus accrescendi in joint destinations. But the Court were clear that this was not a joint destination, and accordingly preferred the testator's next of kin to the lapsed share. However, in Clark's Exrs. v. Paterson (5 Dec. 1851, 14 D. 141), a destination to heirs and assignees of the residuary legatees was held to be a clear indication of intention that the shares should vest a morte. Here the trustees were directed to 'pay or apply' the residue amongst the children nominatim and nascituri, 'their heirs and assignees, share and share alike,' when the youngest child had attained the age of 18; and this direction was followed by a clause of survivorship, to be operative in the event of any of the children 'dying intestate, and without heirs of their bodies, before receiving payment. One of the daughters having died before the period of payment, after surviving the testator, the Court held that her share had vested in her husband, as legal assignee, under the destination to heirs and assignees. 'I apprehend,' said Lord Fullerton, 'that when a legacy is so granted that the legatee has the power of testing upon it, or assigning it, to all intents and purposes that legacy vests, unless there is the strongest evidence of an intention that it shall not vest. All that we have here is a postponed term of payment, coupled with these considerations-that there is a power

of assigning and a power of testing' (14 D. 145; see also Queen's Remembrancer v. Dougall, 12 Feb. 1841, 3 D. 548).

Where there are elements of true contingency in the destination, in addition to the postponement of payment, the vesting will be suspended during the subsistence of the contingent interest. This principle is illustrated by a recent case, in which trustees were directed to divide the succession on the youngest daughter attaining majority, subject to a proviso, that if any of the children succeeded to property exceeding by L.3000 the value of his share, such share should be divided amongst the survivors. The Court ruled that the shares could not vest a morte testatoris, except subject to the condition of forfeiture in the event of the beneficiary succeeding to other property (Cunningham v. Cunningham, 6 July 1858, 20 D. 1214).

2. That a destination over, either to the surviving legatees or to a third party, is suspensive of vesting, is a proposition so firmly fixed in our practice, that it becomes unnecessary in this place to enter upon a review of the cases in which it has been recognised; more especially since, in the case of payment being at the same time postponed to majority (where the concurrence of two separate elements of contingency was involved), it was felt to be hopeless to struggle against the application of the rule. It may be sufficient to mention that, in the following instances of a residuary destination to children in shares payable at majority, with a destination over, the vesting was held to be suspended till the period of payment,-viz., in Stewart's Trs. v. Stewart (17 July 1851, 13 D. 1387), where there was a contingent remainder to the settlor's brother in the event of there being no children surviving the period of payment; in the case of Blackwood v. Dykes (26 Feb. 1833, 11 S. 443), where the trust was for conveyance to a second son at the age of 25, with remainder in the event of his death before attaining actual possession of the estates to his issue, whom failing, to the testator's heirs and assignees whatsoever; and in Wright v Ogilvie (9 July 1840, 2 D. 1357), where there was a contingent destination in the event of failure of children to a widow in alimentary liferent, with remainder to the testator's assignees, and a destination over. The same rule was applied in the case of Ogilvie v. Cuming (27 Jan. 1852, 14 D. 363), to a destination of the residue of heritable and moveable estate, with this variation, that, the institute having died after majority, but before receiving possession of the estates, the Court preferred the next heir substitute to the institute's legal representatives, on the ground that

the words of the destination imported a proper substitution. In the following cases, the residue was given to a plurality of persons, with the benefit of survivorship; and the vesting was in every instance held to be postponed till the period of payment, from the necessity of preserving the contingent interest of the survivors unimpaired,— viz., in Greig v. Johnston (1 July 1833, 6 W. and S. 406, affirming 9 S. 806), and in Campbell v. Reid (12 June 1840, 2 D. 1084), where, however, the yearly interest for each term was held to belong to the children surviving such term, as it accrued; and, finally, in the case of Walker v. Park (20 Jan. 1859, 21 D. 286), where a clause of survivorship was found to have the effect of suspending the vesting, notwithstanding the direction to employ the annual proceeds of the estate in the maintenance and education of the beneficiaries.

However, it was laid down in two recent cases, that a general destination to the testator's children, payable to the survivors at a period fixed with reference to the majority of the children, vests in them as a class from the time of the testator's death. Although, therefore, the interests of the individual children cannot be said to vest a morte, on account of the uncertainty as to the extent of the interest, yet if that uncertainty should be removed by the death of all the children except one, before the period of division, there is no longer any obstacle to prevent the complete vesting of the succession in the last survivor. This is the import of the cases of Cattanach v. Thom's Exrs. (2 July 1858, 20 D. 1206, 1st Div.), where the succession was given to the only child and heir of the last survivor, who had died in minority; and Maitland's Trs. v. M'Dermaid (15 March 1861, 23 D. 732, 2d Div.), where the residue was given to the testamentary heir of the last survivor, dying in minority, in preference to the truster's next of kin. The Lord J.-C. Inglis observed, 'It is beyond all doubt that the beneficial interest in the truster's estate was vested in his children as a class; though, by the provisions of other clauses, that vesting may be postponed as regards some of the children, and as regards others it may suffer defeasance' (23 D. 736).

Section 2. Case of General and Special Legacies and Provisions.

In this class of cases the conflict between theory and intention, which was maintained for a long period with varying success, has been productive of great uncertainty in the administration of the