Leeming v. Sherratt (a); Davies v. Fisher (b); Thomas v. Wilberforce (c); Boreham v. Bignall (d); Southern v. Wollaston (e), were cited. Feb. 11. The MASTER of the ROLLS. The question on which I reserved my judgment is, whether the infant child of the testator Luke Pearman takes a vested interest in the residue of the estate of the testator, and I am, of opinion that the bequest is vested. In the first place, it is to be observed that the subject of the gift is residue, in which case the decisions shew a strong inclination in the Court, in all cases where it is possible, to make the gift vested, in order to avoid intestacy. In the second place, the trust is to pay and divide the whole of the residue unto all his children, in equal shares, as and when they respectively attain twenty-one years. The cases shew that the words "as and when," which are ambiguous, are not to be treated, as indeed grammatically they could not be treated, as equivalent to a gift to such of the children as should attain the age of twenty-one years, in which case the attainment of the age of twenty-one years would be made a condition precedent to the acquisition of the right to the legacy. (a) 2 Hare, 14. (d) 8 Hare, 131. In In addition to this, the gift over in case there shall be no child who shall attain that age furnishes, as Mr. Jarman observes, plausible argument that the subsequent words explain that the interest of the legatee was to be divested on that event, not that the vesting of the interest was to be postponed until the prescribed age. In the third place, there is contained in the will, in my opinion, a clear direction that any part of the residue may be applied, if necessary, "in order to enable" the trustees "to bring up, clothe, educate and maintain all his children." I cannot attribute so capricious an intention to the testator, as to hold that the maintenance of the infants was only to be provided for during the continuance of the lease, which, as he himself remarks, must expire during their infancy; and still less can I interpolate words in the will, for the purpose of confining the maintenance fund to the profits made by the carrying on of the farm. I am therefore of opinion that the residue, or such part of it as might be necessary, was, together with the necessary part of the live and dead stock, given for these two purposes, viz., the carrying on of the farm, and the maintenance of the children. If one child died under twenty-one leaving children, the share became vested in the grandchildren. If the child died under twenty-one leaving no issue, then the share of that child was divested, and passed according to the proviso. Upon this proviso it was argued, that the effect of it was, to give the share of the child to the other persons in the event of the child dying at any time without issue; but such is not, in my opinion, the effect of it. If it were to be so read, it would be directly at variance and 1864. PEARMAN v. PEARMAN. 1864. PEARMAN v. and inconsistent with the gift to the children, "as and when" they attain twenty-one, and both could not coexist together; but in truth such is not the meaning, PEARMAN. although the clause is very ill expressed, as indeed the whole will is, which is most inaccurately and inartificially drawn, though apparently the work of some professional man. The words are these, " Provided always, &c. [see ante, p. 395]. The question turns on the meaning of the words "or such," and I am of opinion that these words refer to the whole of the previous sentence, viz., no child living to attain the age of twenty-one years," in other words, a child not living to attain the age of twenty-one years, and that which is meant by the proviso is the event of his having no child at all, or, having one or more, that they should all die under twenty-one without issue. Unless this be the meaning, not only is it, as I have already described, inconsistent with the previous bequest, but the whole of the first part of the proviso as to the attainment of twenty-one years, is wholly unnecessary and surplusage, and it should run thus" that if it should happen that he had no child, or, having any, that they should die without issue, then the gift over was to take effect." It is well observed by Sir James Wigram, in Leeming v. Sherratt (a), that the question must depend on the whole scope and effect of the will taken together, and it is on this principle that the cases of Eccles v. Birkett (b), Davies v. Fisher (c) and Harrison v. Grimwood (d), and indeed all the principal cases on this subject, have been decided. Acting on this principle, and looking at the whole scope and purpose of the will, I am of opinion that the residue is vested in the infant Defendant Frances Frances S. B. Pearman, subject to be divested in case she should die under twenty-one without issue, and that on attaining twenty-one, her interest which is vested will become absolute and indefeasible. 1864. PEARMAN v. PEARMAN. BROWN v. BROWN. Feb. 13. was devised to BY the decree, an inquiry was directed as to what A real estate property belonging to the intestate James Brown two trustees to at the time of his death was comprised in and devised sell and divide the produce by the will of James Dowson the elder, and whether between A., such property, or any and what part thereof, was, at the time of the intestate's death, of the nature, in equity, of real or personal estate. B. and C. The trustees being dead, A. entered into possession and received the and-a-half years, accounting to B. and C. for their shares. A. then died, and at his death the estate re It appeared that James Dowson the elder, by his will rents for threedated in 1830, devised a messuage, &c., called "The Lamb" to his daughter Ann Brown for her life, and after her decease to her husband for life, and, subject to these life interests, he devised the same premises to his sons James and George upon trust to sell; and he gave and bequeathed the money to arise by such sale, or such sold-Held, part thereof as should not have been applied in payment been no reof his debts, funeral and probate expenses, unto the conversion, three children of his daughter Ann, namely, Sarah but that the Brown, Ann Brown and James Brown, equally. The testator died in 1832. Ann Brown survived her husband and died in March, 1859. Previous to her death both the trustees named in the will had died. The three children of Ann Brown survived her, at mained un that there had estate, in equity, retained its cha racter of per sonalty. 1864. BROWN v. BROWN. tained twenty-one years of age and became entitled as tenants in common to the Lamb Inn or the produce of the sale of it. Upon Ann Brown's death, her son James Brown entered into the receipt of the rents of the Lamb, giving receipts in his own name, and accounting to his sisters for their two-thirds. No sale had been made of the premises, and the legal estate was still vested in the heir of the surviving trustee. James Brown died in September, 1862, three years and a half after the death of Ann Brown, the tenant for life. There was no further evidence to shew any intention to reconvert the property, but, in the affidavit of Henry Goody, it was sworn, that the reason why James Brown received the rent was, because he could not find any one to act in the matter, the trustees being dead. The Chief Clerk being of opinion that there was no indication of an intention to elect to take the land in lieu of the proceeds of a sale, the case was adjourned into Court. Mr. G. L. Russell, for the two sisters, cited Dixon v. Gayfere, No. 2 (a). Mr. Karslake, for the widow, cited Kirkman v. Miles (b). Mr. Eddis, for the heir, cited Davies v. Ashford (c). The MASTER of the ROLLS. I am of opinion that there has been no re-conversion. Here (a) 17 Beav. 433. (c) 15 Sim. 42. |