tween the survivor or survivors of him, her or them, or his, her or their child or children, share and share alike. for ever." The testator died in April, 1839. Harriet Chapman, the daughter, died in May, 1856, without having been married. The testator's widow, died in February, 1861, without having married again. William Chapman, the son, had six children (the Plaintiffs), all of whom were born in the lifetime of the testator's widow. George Chapman had three children, one born in the lifetime of the testator's widow, and two others born since her death. The testator's other son, Henry Chapman, had never been married. Under these circumstances, a question had arisen, whether, upon the true construction of the testator's will, his real and personal estate became divisible, upon the death of his widow, amongst his three children who survived her in equal shares, or became divisible equally amongst them and their children born in the lifetime of the widow. Mr. C. C. Barber, for the Plaintiffs, contended, that, according to the true construction of the will, the word "or" following the words " Harriet Chapman" in the gift, and the word "or" interposed between the words "him, her or them," and the words "his, her or their child or children" in the subsequent part of the gift were 1864. BLUNDELL V. CHAPMAN. 1864. BLUNDELL บ. CHAPMAN. were respectively to be read "and;" that consequently the gift took effect in favor of the testator's surviving children William, Henry and George, and the respective children of the testator's sons William and George born in the lifetime of the widow in equal shares as tenants in common. He cited Eccard v. Brooke (a); Richardson v. Spraag (b). Mr. Bristowe, for the Defendants, on the other hand, contended that the word "or" was substitutionary in each case, and that the words "survivor or survivors" were to be read as "other or others," and that upon the whole, the testator's intention was, to substitute the children of any of his four children who might die in the lifetime of his widow for such children so dying, and to vest in such children of deceased children, in equal shares as tenants in common, the share which such children so dying would have taken had they survived the tenant for life; that consequently, inasmuch as none of the four children died in the lifetime of the tenant for life leaving children, the testator's three children were entitled, under the terms of the original gift, to three-fourths of the testator's real and personal estate, and, under the survivorship clause, to the remaining fourth as tenants in common. He cited Richardson v. Spraag (note) (c); Crooke v. De Vandes (d); Montagu v. Nucella (e); Salisbury v. Petty(f); Price v. Lockley (g); Whitcher v. Penley (h); Penley v. Penley (i); Sparks v. Restal (k); Timins v. Stackhouse (1). Mr. C. C. Barker in reply. (a) 2 Cor, 213. (b) 1 Peere Wms. 434. (c) 2 Eq. Ca. Ab. 368. (f) 3 Hare, 86. (g) 6 Beav. 180. The The MASTER of the ROLLS. I will look into the cases, but my general impression on the construction of the will is, that I must treat these two gifts as separate and distinct, and not construe one by the other. I cannot alter "and" into "or" in this devise. I am of opinion that the gift to the children is substitutionary, and this accords with the recent decisions. The testator directs his property to be divided between his own children or their children, that is, the children are to take in the place of their parents if deceased. If Eccard v. Brooke had been followed by every other case, I should be bound to follow it, as I think it better to adhere to decided cases and not to unsettle the law. The modern tendency is to construe the words as you find them, and I am clear that I cannot change the word "survivors" into "others," which would be making a mere arbitrary change in the words. It is clear that the testator intended that, if one of his children died childless before the period of distribution, his share of the property should be divided amongst the survivors, that is, amongst those who survived the tenant for life. I think that the testator, when he gave over the shares to the survivor or survivors or their children, had not present to his mind the fact that these words could have no application if the gift was substitutionary. My present impression is, that it is proper to read the words as they stand, and in doing so to treat the words or their children as inofficious. 1864. BLUNDELL v. CHAPMAN. The 1864. BLUNDELL v. CHAPMAN. Mar. 4. The MASTER of the ROLLS said he had looked at all the cases on the subject, but that they had afforded him very little assistance; that he was of opinion that he must read the words as they stood, and that he could neither change "or" into "and" or "survivors" into "others." That in the first gift the plain meaning was to substitute grandchildren in the place of their parents who predeceased the tenant for life, and that, in the gift over, the testator had overlooked the effect of the words indicative of substitution, when none could take place if the surviving children were to take the shares given over. That he was of opinion that the property must be divided among the children who survived the tenant for life and the children of any predeceased child leaving children, such children being substituted for their parent; that therefore, on the death of the widow, and in the events which had happened, the testator's three surviving children took the property equally as tenants in common. 1 1864. DAVIDSON v. CHALMERS. PERRY v. CHALMERS. Mar. 4, 16. to an uncerti TH HE Plaintiff Daniel Mitchell Davidson, the nephew Interests given of the testatrix Sophia Forbes, had been adjudi- ficated bankcated bankrupt in June, 1854, and had not obtained rupt, continhis certificate at the death of the testatrix. gently on his obtaining his certificate:Held to pass to pening of that event. A testatrix provided, that in case her nephew, who By her will, dated the 8th of April, 1856, Sophia his assignees Forbes gave her residuary real and personal estate to on the hap trustees, upon trust to realise and invest, and to stand possessed of the securities upon trust, during the life of her nephew Daniel Mitchell Davidson, at their own free will and uncontrolled discretion, to pay and apply the whole or any part of the income, dividends and tificated bankannual produce of the said real and personal estate and obtain his cersecurities, which should or might accrue due thereon tificate, so as during his life, to or for the benefit of Daniel Mitchell Davidson, or of his wife or child or children or any or either of them, at such time or times and in such manner was an uncer rupt, should to be enabled to hold and enjoy real and personal estate for his own absolute per as the executors and trustees should, in their uncon- sonal use, entrolled discretion, think proper, and so nevertheless and joyment and benefit, free to the intent, and the said testatrix did thereby expressly from the condeclare her will to be, that her nephew Daniel Mitchell trol of any other person, Davidson, or his wife or child or children during his the income of life, should not be entitled to or have any right, either in law or equity, to claim, demand or recover any part her residue should be paid to him for life. quent dis On his subse or proportion of the income, dividends or annual produce of the said real and personal estate and securities, or be charge, under the Bank entitled rupt Act: Held that his life interest passed to his assignees as a contingent interest then coming into possession. |