Page:The English Reports v1 1900.pdf/1394

will spoke the contrary. To the construction of those words, might be opposed the words which follow, "none of them shall have left lawful issue"; Mrs. Thicknesse did leave lawful issue, and therefore the fund could not go over, by the letter of the will.

In answer to the third objection, it was said, that the time of division was annexed to the gift, i.e. the time when the share of each child was to be ascertained, namely, when the youngest should attain 21, but the time of payment was not annexed to the gift; for no passage in the will declared, that the fund should be paid to the several children when the youngest should attain 21. Had there been two children, and both had attained 21, it is clear, that when the younger attained 21, the shares would be ascertained; for the two children would be absolutely entitled to the fund in moieties, subject to the mother's right to take the interest for her life. Mrs. Thicknesse therefore having attained 21, and having neither brother or sister who did attain that age, or left issue, she, as being the only child, was the youngest who attained 21, and upon attaining that age, the whole fund belonged to her, subject to her mother's interest for life. Add to this, that the appellant not only represented his wife, but his children who survived her; and who, if it had not vested in their mother, must have taken it according to the proviso of the will, had the vesting been postponed to the mother's death; because the will provided, that if the parent died before the time of vesting, the child should take.

On the other side, it was said (R. Jackson, R. Perryn, C. Sayer, J. Hett), that it appeared to be the manifest intention of the testator, to be collected from the whole tenor of his will, that all the limitations of the beneficial interest in the residue of his estate, should be contingent; and that no person should take any transmissible share of it, before his or her right of enjoyment in possession took place. He meant first to provide for his daughter, upon the contingency of her surviving her husband, and afterwards, for such of her issue as [374] should be living at her death; and if there should be none such, then for such of his relations named in his will, or their issue as should be then living. He did not, in any of the clauses in his will, make use of the words executors or administrators, or any other words which denote a legal representation, or a transmission of a vested legacy; but always used words of substitution, introducing the issue in the place of the deceased parent, and one donee, or set of donees, in the room of another; and this intention was not contrary to the rule of law, as the legacy must vest on the death of a person then in being. That the words, "if my daughter happen to die without any child," which introduced the bequest over, could not mean if she happened to die without ever having had any child; for that event he knew could not take place, she having a child living at the time he made his will; and it would be absurd to suppose, that the testator intended to devise over his estate, upon a contingency which he knew could not happen; the words must therefore mean, "if my daughter die without any child living at her death." If the residue of the testator's estate immediately vested in the child of Mrs. Lanove then born, subject to her life interest, it would make the gift over to the several donees nugatory in its creation; but that he meant such issue of a deceased child of his daughter should take, as should be living at Mrs. Lanove's death, appeared by his directing that the guardian of such issue, if under age, should receive his share. If any thing vested in Mrs. Thicknesse, it must have vested in her immediately upon her father's death, as a remainder expectant upon the death of Mrs. Lanove; but at the time when Mrs. Thicknesse died, her father being then alive, nothing had vested in Mrs. Lanove her mother, and consequently nothing could have vested in the daughter; it being absurd to say, that the remainder vested before the particular estate; and if Mrs. Thicknesse, or any other child of Mrs. Lanove, had taken a vested interest, it would have been transmissible to their personal representatives, if they died before her, and would not have gone to their issue; which would have been plainly contrary to the testator's intention. That in the present case, there was no substantive gift to make it a legacy immediately vested, though payable at a future time; but the gift and the time of payment were after the death of Mrs. Lanove; both commenced together, and the time of the gift, and of the payment or division were the same. Lastly, that the bequest being to all the children, and all the issue of any deceased children of Mrs. Lanove, the quantum of the legacy, or of each child, or grandchild's share, could not be ascertained until Mrs. Lanove's death, and therefore could not be a proper object of, or any consideration for a settlement; nor was it given by the will as a fortune or provision, but only as a general legacy; consequently not