Page:The English Reports v1 1900.pdf/1362

testator's bounty, by his directing the dividends of the £4000 Bank stock, after the death of his daughter, to be put out to interest to increase the children's fortunes, and the principal to be paid, with such accumulated interest, to such child or children equally, when they should attain the age of 21, or day of marriage; with a clause of survivorship, if any or either of them should die before those respective periods. Hence it was clear, that such children's fortunes were meant to vest in all events at these periods, and the chance of survivorship was confined to them only; and therefore that the first part of the will, where the stock was given over to Lascelles Metcalfe, in case the testator's daughter Elizabeth Russell should die without leaving issue, must be construed without leaving such issue as before described, that is, who should not have attained their age of 21, or have been married, which made every part of the will consistent. This the testator had said in express words, in case the children or any of them survived the mother, and afterwards died; and the limitation over to Lascelles Metcalfe was in the latter part of the will given upon that express contingency of their dying before 21, or marriage; and no good reason could be assigned, why the testator did not mean the same thing in case the children died in the lifetime of their mother, as if they died after her death. That the daughter having left issue, Lascelles Metcalfe was absolutely debarred; and why should a survivorship between the children after 21, or marriage, be raised by implication, for no other purpose than to give the whole fund to the surviving child, and bar the representative of a deceased child, who both attained her age of 21, and was married, and consequently stood in need of the provision intended for her? It was therefore hoped, that the decree would be reversed; and that the appellant would be held entitled to a moiety of the £4000 Bank [323] stock, together with the interest thereon from the death of Elizabeth Russell.

On the other side it was said (A. Wedderburn, C. Ambler) to be the manifest intention of the testator, and collected from the words of his will, that the £4000 Bank stock should not vest absolutely in the children of his daughter Elizabeth Russell, upon their attaining 21, or being married in her life-time, but only in such of them as should be living at the time of her death; at which period, and not before, they were to be entitled to the £4000. And that as the appellant's wife died in the life-time of her mother, the respondent Metcalfe Russell became entitled to the whole upon that event, as being the only child of Elizabeth Russell then living.

After hearing counsel on this appeal, it was ordered and adjudged, that the decree therein complained of should be reversed; and that the respondents should transfer a moiety of the Bank stock to the appellant, and account with him for the dividends received from the death of Elizabeth Russell. (M. S. Jour. sub anno 1772–3. p. 96.)

John Morgan, Esq. was seised in fee-simple of considerable freehold and customary estates in the counties of Monmouth and Glamorgan, and entitled to the equitable