Page:Harvard Law Review Volume 12.djvu/68

48 HARVARD LAW REVIEW. whole will, and after referring to the usual bead-roll of more or less relevant authorities, it is unable to decide in favor of either of two equally balanced constructions, has yet to be reported. It is almost certain that no such case can have occurred during the seventy-five years' life of the Law Journal Reports without express attention being drawn to it. So, again, no doubt the trip- lets Fortunatus, Stephanus, and Achaicus, referred to in Stephen on Evidence, article 31, might have joined in an ejectment as heir at law of their father if their relatives had been less careful to distinguish which was the eldest. The law would have allowed that course, because clearly the legal estate would have been actu- ally vested in one of them. But apparently a devise to the father's heir at law would have been ineffectual apart from the armstring, declaration, and reference to i Cor. xvi. 17. Another group of cases may be called " the ambiguous event." Property is given in one event to A and in another event to B. One of the events must have happened, but it is impossible to ascertain which. In former days A and B could not have clubbed their rights together and said that one or other of them was en- titled ; and if they had both conveyed their rights to a third person he would probably have been no better off. In Wing v. Angrave (1860),^ a wife executed a general testamentary power of appoint- ment over certain property in favor of her husband, and in the event of his death in her lifetime to Wing absolutely. On the other hand, the husband bequeathed his property in trust for his wife absolutely, and in the event of her death in his lifetime upon trust for Wing absolutely. Both the appointment and bequest were subject to trusts for children, which failed. The husband and wife went down in the same ship, and the question arose, who was entitled to the property appointed by the wife. It was admitted that if Wing had been entitled to that property for his own use absolutely in either event, he might have taken it. If, for instance, the appointment had been in one event to Wing, in the other to the person who was Lord Mayor of London at the death of the appointer, then if Wing had happened to be Lord Mayor at that time he would have been entitled quaainque via, and his title would have been good; In that case it would have been certain that in every possible event Wing was entitled for his own use and benefit. But in the actual case Wing claimed 1 30 L. J. Ch. 65 ; 8 H. L. C. 183.