in trust to his wife until the sons entered professions or attained twenty-one, and the daughters attained twenty-one or married with consent. It was held, 1st-that the portions were by the settlement vested before the period of payment; 2nd-That the provision in the will as to maintenance was of itself sufficient to vest the portions. And it was said that the express provision as to vesting could not qualify the previous part of the clause, and that the rules as to the vesting of portions and legacies are the same, i.e., as appears from the authority cited (Stephens v. Frost, 2 Y. & C. Ex. 302, stated post, p. 394), in cases where there is a gift of the whole interim interest.

In Bardon v. Bardon, 16 Ir. Ch. R. 415, a sum of stock was under articles of agreement vested by a father, * A., [ * 390 ] in trustees on trust for A. for life, and after his death as to several specified sums thereof to transfer them respectively to his children, C., N., J., B., E., and three others, in each case "for his (or "her") own absolute use and benefit," proviso, that no transfer or payment should be made to the said C., N., J., B., or E., until he or she should attain twenty-five, and also that in case any of them should die before the share to which he or she was entitled under the articles should have been transferred to him or her, the share of the person so dying should accrue to the survivors. A. died; then B. (a daughter) died under twenty-five and unmarried, and at her death J. and E. were under twenty-five. Then E. (a daughter) died under twenty-five and unmarried. The question was whether on E.'s death under twenty-five her accrued share of B.'s portion went over. The M. R. held that the por. tions were vested, notwithstanding the proviso as to transfer (see Rule 149, post), and some stress was laid on a direction that the dividends should be applied for maintenance. Therefore, though the gift over to the survivors operated to divest the original portions, yet the share accrued under the survivorship clause did not go over on death under twenty-five, but belonged to E.'s next of kin.

In Combe v. Combe, 2 Atk. 185, under a trust of personalty for such son as should live to attain twenty-one, when and at such time as such son should attain twenty-three, a son who attained twenty-one and died under twenty-three, was held to have taken a vested interest at twenty-one.

See Lawrence v. Maggs, 1 Ed. 453, stated ante, p. 360, where a leasehold was settled on the parents successively for life, with remainder to the children, and it was held a vested remainder in the children.

Context may exclude the rule.-The context may show that a portion is not to vest at birth.

In Mostyn v. Mostyn, 1 Coll. 161, it was held that two

[*391] * children who died infants, and without having been married, in their parent's lifetime, were excluded from sharing in the fund. Knight-Bruce, V.-C., said (p. 167): “The trust is for the children, but to be paid at twenty-one or marriage. . . . The words may or may not import a vesting on birth, according to circumstances. You must look at the rest of the settlement to see whether they import mere payment, or vesting. I find, in a subsequent part of the settlement, and in fact very near these words-forming almost part of the same clause-this declaration :-' that, in case there shall be no such child or children living at the time of the death of the survivor' (i.e. of the parents) or, if such, and they shall all happen to die before their respective ages of twenty-one years or days of marriage,' the fund is to go over. I think that this may be fairly taken as a sufficient indication of intention that the age of twenty-one or marriage was to be the period of vesting. Therefore I think that the two children who died minors (living their parents) without having married, did not acquire vested interests." The case stood over to make the personal representatives of the infants parties, and was re-argued on their behalf, when the V.-C. said that he adhered to his opinion on the construction of the settlement.

In Re Dennis, 6 Ir. Ch. R. 422, infant children were held not to be entitled; this was by force of a gift over in case there should be no issue living at the decease of the parents, or if there should be no issue then living, and such issue should die under twenty-one, &c. It was held that either the shares did not vest till twenty-one, &c., or if they did vest at birth, they divested on death under twenty-one, &c.

See also Re Colley, L. R. 1 Eq. 496.

Rule 149.-Trust created by direction to pay on event personal to children. Where a trust of personalty is created only by a direction for payment to or division among the children on an event personal to themselves, the time of vesting is the time appointed for payment or division.

[* 392 ]

*Rule stated.

"The question in all such cases is whether the period of division is postponed on account of previous interests in the fund, which are given to other per sons in the meantime, or on account of some qualification attached to the donee. In the former case, the deferred interest vests .. on the execution of the settlement.

; in the latter it is contingent; " per Wood, V.-C., Re Theed, 3 K. & J. 379. Accordingly, in that case, the trust being to pay at twenty-one, it was held that children who did not attain twentyone took nothing. And, on the other hand, in Vanderzee v. Aclom, 4 Ves. 771, at pp. 784, 786; Re Minor's Trusts, 28 Beav.

50, there being no qualification of age required, infant children were held entitled. See as to Wills, Hawk. 232; 1 Jarm. (4th ed.) 839 et seq. See also 2 Spence, Eq. Jur. 399.

In Hubert v. Parsons, 2 Ves. Sen. 261, a sum of £5,000 was to be raised out of a money fund of £9,000, and to be paid to younger children at twenty-one, with interest for maintenance. If any child died before its share was payable there was a gift over to the other younger children. There was only one younger child, who died an infant. Held, that the £5,000 was not to be raised for his representatives against the eldest son. The remarks of Lord Hardwicke in this case, taken in connection with the circumstances before him, seem to express an opinion that the Civil Law doctrine as to the immediate vesting of a legacy payable at twenty-one, &c., does not apply to non-testamentary instruments. But he also remarks that there was no gift except in the direction to pay ("The power of raising and paying is directed and limited by the same words. There are no words to create any vesting, except those for raising and paying, which are at twentySupposing it had been in a covenant, and the child had died before twenty-one, it could never have become due"); and on this ground, and also on the force of the gift over, the decision might well be rested.

one.

*

And in Richardson v. Goodman (infra), it was remarked that Hubert v. Parsons, though dealing with a fund of personalty, was analogous to cases of portions out of land, [393] as the settlement distinguished between the elder son and younger children.

In Richardson v. Goodman, 3 Ir. Jur. 317, a policy on the husband's life and a bond were settled upon trust (after the death of the wife) "to pay and apply the principal moneys, &c., among the issue of the marriage," with a power of appointment to the parents, and in default of appointment, to pay and apply the said moneys to and amongst the issue of the marriage in equal shares upon their respectively attaining their respective ages of twentyone or days of marriage (if daughters). There were four chil dren, of whom two died under age and intestate in the husband's lifetime. The wife also died in his lifetime. The power of ap. pointment was never exercised. The two sons, J. and W., who survive the husband, were still infants. Held, that, as the whole intent of the instrument "must, prima facie at least, be considered as intended to be for the purpose of raising portions for the issue to be given to the sons when they arrived at twenty-one, or to daughters at twenty-one or marriage," and as the language was ambiguous, the Court ought not to give vested interests to infants.

In Campbell v. Prescott, 15 Ves. 500, there was a trust for accumulation until the settlor's grandchildren then living, or to be born, respectively attained twenty-one, and on their respectively

attaining twenty-one "upor trust to pay unto such grandchildren respectively as he, she, and they should respectively attain unto such age, his, her and their respective shares and proportions not only" of the fund but also of the interim interest. Held, that a grandchild who died under twenty-one took nothing.

*

Observation.-Gift of interim interest.-In cases falling under this Rule, a gift of the whole interim interest to, or a direction to apply the whole interim interest for maintenance of, the children appears not to accelerate the vesting; Jopp v. Wood, 28 Beav. 53; on app. 2 De G. F. & Jo. 323 (stated ante, p. 387); Hubert v. Parsons, 2 Ves. Sen. 264 (cited ante, p. 392); contra in *394] the case of a legacy (Hawkins on Wills, 227). The only case where the vesting was accelerated by a gift of interest for maintenance is Re Orme, 1 Ir. Ch. R. 175: cited supra, p. 388: but this case appears to have been decided as to this point on the authority of Stephens v. Frost, 2 Y. & C. Ex. 302, and will cases. In Stephens v. Frost the property (leasehold) was vested in trustees "in trust for A. till he should attain the age of twenty-one years, and in the meantime in trust to collect the rents . . . and . . . apply them towards the maintenance .. of A. during his minority, and upon A. attaining his age of twenty-one years upon trust to assign the premises and the accumulations of rents and protits, if any, to A. his executors, or administrators, for the unexpired remainder of the term." will be observed that the corpus, not the interest only, was given to A. during his minority, so that the case is no authority on the point. See Bardon v. Bardon, 16 Ir. Ch. R. 415, ante, p. 389.

It

It is suggested in Hubert v. Parsons, 2 Ves. Sen. at 264, that possibly the direction for payment of the whole income for maintenance might make the principal vest in a child who survived the tenant for life but died under twenty-one, but there is no decision on the point.

Discretion to apply interim interest for maintenance.-Contingent gift of interest.—It is decided that a mere discretionary power to the trustees of the fund to apply all or any part of the income for the maintenance of the persons contingently entitled to the fund; Barnet v. Blake, 2 Dr. & Sim. 117; or a contingent gift of interest, as in Campbell v. Prescott, 15 Ves. 500, supra, p. 393, does not vest the principal.

Divesting of Portions; Gifts over; Death before Parents.

Gift over on death before portions "payable."-Where life interests is the settled real estate or personalty are limited to the parents, or to one of them, the portions cannot (in most cases) be actually raised and paid over until the expiration of such prior interests; this is the period of distribution, when the portions be

come "payable" in the ordinary sense. An important question, therefore, arises where a child attains twenty-one or marriage (or other the time of vesting), and then *dies, [* 395 } living a tenant for life, and there are provisions in the settlement which seem to deprive such a child of its portion; e. g., where there is a gift over of the share of a child dying before its portion becomes "payable," "assignable," or "transferable." These, and similar expressions (c), might refer either to age or marriage-i. e., the time of vesting, or to the time of actual payment-i. e., the period of distribution. "The words 'payable, assignable, or transferable,' have different senses according to the different clauses of the settlement to which they refer. With reference to the right or capacity of the children, the sense is, 'at twenty-one or marriage.' But then the enjoyment of the persons entitled for life is not to be broken in upon. It is therefore vided that the right, which exists for every other purpose, shall not be exercised to their detriment. With reference to that interest, the sense is not till the death of the tenant for life.' But it is only with reference to that, that the preceding declaration is at all qualified; and as against every one but the tenant for life, the children have a right to say it remains unqualified. As between themselves, the time of payment must be taken to be unaltered;" per Grant, M. R., Schenck v. Legh, 9 Ves. 310, cited with approval by Plumer, M. R., (Walker v. Main, 1 Jac. & W. at p. 8) who adds: "This construction is agreeable to the general leaning of the Courts in favour of vesting. The nature of the fund here makes no difference; for as after the death of the tenant for life the whole is to be distributed, it is indifferent whether it arises from real or personal estate."

pro

"As soon as these clauses came forward, in Emperor v. Rolfe (1 Ves. Sen. 208), Lord Hardwicke put a just construction upon them; and he referred the word 'payable' to the time in respect of the quality of the child, distinguishing between that and the time when ex* necessitate the money was to be [* 396 ] de facto raised;" per Lord Loughborough, C., Willis v. Willis, 3 Ves. at 54.

Wills. This construction applies to Wills; Hallifax v. Wilson, 16 Ves. 168; see Hawkins on Wills, 218.

Survivorship.-Frequently there are, in the description of the class of children who are to take, or in other provisions of the settlement, expression referring to survivorship. Many such cases may be classified as follows:

First: To such children as survive, payable at 21, &c.—Where the primary gift is to such children as survive the parent, payable at twenty-one, &c. In this case, if there are no further

(c) "Before they become entitled to their shares:" Jopp v. Wood, 28 Beav. 53; 2 De G. J. &. S. 323; “Before being entitled in possession:" Re Yates, 21 L. J. Ch. 281; or "Entitled to payment;" Re Williams, 12 Beav. 317.