V.-C. W. 1871 In re have been equally next of kin to the testator. The statute does not contemplate representation beyond "the children of an intestate, and such persons as legally represent such children, in case any of the said children be then dead" (sects. 3 and 5). That is Ross's Trusts. to say, it looks at the possible death of the children, and the succession of their immediate descendants only, viz., the grandchildren of the intestate. This fund, therefore, ought now to be divided into sevenths-because, at the statutory limit of representation, there were seven grandchildren of the testator, each one entitled, as equally his next of kin, to take per capita. But their children, the great-grandchildren of the testator, can only take their parent's share, by representation, i.e., per stirpes; and the fund should be distributed accordingly. There is no reported case exactly like this one. Mr. Everitt, for the Respondents, the other great-grandchildren claiming under William Francis Ross, supported the same view. Mr. Methold, for the trustees. Mr. Greene, in reply : says The statute alone is to be regarded in this case, and it only alludes to next of kin in the 3rd and 6th sections. In the latter it that "in case there be no children, nor any legal representatives of them, then one moiety of the estate is to be allotted to the wife, and the residue distributed equally to every of the next of kindred of the intestate who are in equal degree, and those who legally represent them." That clearly shews that as long as there are lineal descendants the division must be per stirpes, and not per capita; and the distribution of the fund contended for by the Petitioner is the correct one. Dec. 21. SIR JOHN WICKENS, V.C.: The question reserved for judgment in this case is one as to the operation of the Statute of Distributions, where the intestate left grandchildren and great-grandchildren, but no children. Alexander Ross, by his will, dated the 17th of November, 1819, V.-C. W. 1871 In re gave one-fifth of his residuary estate to his daughter Margaret Ross for life, with remainder to her children; and in default, “in trust for the person or persons who, under the statutes made for the Ross's TRUSTS. distribution of the estates of intestates, would then be entitled thereto, in case I were then to die possessed thereof and intestate; and to be divided between and among such persons, if more than one, in the proportions in which the same would be divisible by virtue of the same statutes." Margaret Ross died on the 8th of June, 1871, unmarried. The testator died in November, 1819, leaving five children, of whom Margaret was the youngest. Of these the second and fourth died before 1871 without issue. Alexander, the eldest son, had three children, of whom two survived him in June, 1871; and one died before June, 1871, leaving a daughter still living. William Francis, the third son of the testator, and the only one besides Alexander, who left descendants living in 1871, had four children, viz., William, who died in December, .1870, leaving two children now living, Emma and Thomas, who are both still living, and Grace, who died in January, 1870, leaving four children, now living. Therefore, in June, 1871, there were two subsisting lines of the testator's descendants; the one springing from Alexander Ross the younger, and represented by two grandchildren of the testator and one great-grandchild, the only child of a deceased grandchild; the other springing from William Francis Ross, and represented by two grandchildren of the testator, two great-grandchildren springing from his dead grandchild William, and four greatgrandchildren springing from his dead grandchild Grace. The question on the Petition is as to the shares in which Alexander Ross's estate is to be distributed among those persons. It is singular that a question of this sort should be uncovered by judicial authority; but no case bearing on it was cited at the Bar, and I have been unable to find any. The Statute of Distributions deals separately with the case of descendants, and that of next of kin not descendants. The case of children is provided for by the 5th section (which is referred to in the 3rd), and the case of next of kin, not being descendants, by the 6th and 7th sections. The general effect of the provisions is, 1871 In re that (supposing there to be no wife) the estate, in case there are V.-C. W. descendants, shall go between the children and their representatives; and in case there are no descendants, shall go amongst the next of kin or their representatives; and that the division is capita where all the takers claim in their own right; and per stirpes where they, or some of them, claim as representatives of another person. per It has been long settled that the word "representatives" in this Act includes only "descendants." It has been further settled that where all the persons entitled to claim are collaterals equally near of kin, for instance, second cousins twice removed, they take per capita, because they all take in their own right; but that where there are no ancestors or descendants, and the nearest of kin are brothers and sisters, but there are also children of dead brothers and sisters, the latter, though not of the next of kin, may claim as representatives of the brother or sister from whom they spring, and may stand in the place of that brother or sister for the purpose of distribution; so that the distribution is per stirpes. This privilege is expressly limited by the statute, and does not extend to any more remote descendants of brothers and sisters than their children, and does not apply at all to any case where the next of kin are all more remote than brothers and sisters. There are, therefore, two cases provided for by the statute, viz., 1, where there are children, or the representatives—i. e., the descendants of children; 2, where there are no descendants. It is the former case alone that has to be dealt with here. Considering the question as one solely on the construction of the statute, it is difficult, I think, to resist the conclusion that, if there are descendants but no children living to share the estate, it is to be divided into as many shares as there are children who have left living descendants, and that the descendants of each such child are to take as representing the child, and, of course, only the child's share. The Statute of Distributions was drawn by a civilian, Sir Walter Walker (1), and seems to have been intended to introduce the rules of the Roman civil law into this branch of English law. It is (1) See Rex v. Raines, 1 Ld. Raym. 571-574. Ross's TRUSTS. 1871 V.-C. W. therefore, perhaps, not irrelevant to remark that the view of the construction of the statute which is taken above makes it conformable to the Roman law. It will be sufficient for this purpose Ross's TRUSTS. to refer to the 118th Novell, and, as commentaries, to the Elements of Heineccius (1), and Mühlenbruch's Doctrina Pandectarum (2). Citations to the same effect might, I think, be multiplied to any In re extent. The principal difficulty in the case is this: In Toller on Executors (which may almost be called the received text-book on the subject) a different opinion is expressed. [In the 7th edition, by Whitmarsh [1838], the passage is at p. 374.] Various authorities are cited for this, but none of them apply to the case of descendants. The dictum is transferred into Williams on Executors, where, in the 6th edition [1867], it occurs in p. 1385. But it appears to stand there on the authority of Toller alone, since the only cases cited are those cited by Toller, and irrelevant. On the other hand, there is a remarkable passage in Hargrave's Jurisconsult Exercitations (3), in which, speaking of Dr. Harris's Justinian, he asserts what would seem to be the true construction of the statute; and a similar view is to be found in Burton's Compendium (4), which was, I believe, published about 1830, and has gone through numerous editions; and the true principle is stated in Blackstone and many other text-books, though the special distinction between descendants who can take only as children, or representatives of children, and next of kin who take in their own right, however remote, is not pointed out. The text-books are not, strictly speaking, authorities on such a question; if, however, there had been an absolute consent among them on a point likely to be of such frequent occurrence, one would have hesitated to pronounce an opinion in opposition to what might seem to be an established course of distribution. But in the face of the passage from Hargrave, which has been often referred to, and of the statement in all the editions of a popular elementary work like Burton, it cannot be said that there has been such a consent. Feeling, therefore, free to follow my own clear opinion on the V.-C. W. 1871 In re construction of the statute, I hold that in this case the sum in question must be divided into moieties, of which one is divisible among the descendants of Alexander Ross the younger, and the other among the descendants of William Francis Ross; the division Ross's TRUSTS. among each class being in each case per stirpes. Solicitors: Messrs. Rixon & Son; Messrs. Francis & Bosanquet; Messrs. Fielder & Co. In re CLINTON'S TRUST: HOLLWAY'S FUND. Will-Devise of Real Estate-Tenant for Life-Reversionary Interest-Marriage Settlement-Covenant to Settle after Acquired Property-Conversion"Entitled" in sense of "Entitled in Possession." H. F. C., who died in 1852, by will gave real estates to trustees upon trusts for his wife for life, and, after her decease, for the benefit of his unmarried daughters. He gave power to the trustees after the decease of his wife, or the decease or marriage of all his daughters, or earlier, with the consent of his wife, or, if she should be dead, of his unmarried daughters, to sell the estates; and they were to invest the moneys and to pay the income to his wife for life, and, after her decease, to divide the principal moneys amongst such of his daughters as should be living at his decease, equally, as tenants in common. He left five daughters surviving. L., one of them, in 1853 married W., and I., another of them, in 1858 married H. By the settlement made on the marriage of I. and H. she assigned to trustees certain trust funds and premises upon trusts during their joint lives to pay the income to her for her separate use, and, after the decease of either, to pay it to the survivor for life, and after the decease of the survivor upon trusts for the benefit of the children or remoter issue, as they should jointly appoint; and in default of such appointment, as the survivor should appoint; and in default, for the benefit of the children equally. The settlement contained a covenant by the husband and wife, that if, at any time after the marriage, and during their joint lives, they, or either of them in her right, should by gift, descent, succession, or otherwise, become entitled to any real or personal estate, property, or effects of the value of £100 or upwards, at any one time, the same should be conveyed, transferred, assured, and paid to the trustees upon the trusts declared. The testator's estates were, in 1867, with the consent of his widow, sold by the trustees, and they invested the proceeds in East India Government Stock. The widow died in April, 1871, leaving I. and II. surviving. By the settlement made on the marriage of L. and W., she assigned to trustees certain trust funds and personal estate upon trusts similar to those, V.-C. W. 1871 w Dec. 15, 22; 1872 Jan. 19, 20. |