1839. Dec. 18. WILLIAMS v. OWEN. (10 Simons, 386–392; S. C. 9 L. J. (N. S.) Ch. 70; 3 Jur. 1186.) [Reversed on Appeal, as reported in 5 My. & Cr. 303. See 48 R. R. 322.] 1839. Dec. 20. SHADWELL, [ 400 ] [ 402 ] LENOX v. LENOX. (10 Simons, 400-410; S. C. 9 L. J. (N. S.) Ch. 83; 4 Jur. 5.) Will-Construction-Conditional bequest. A testator bequeathed 4,000/. in trust for his daughter (a single woman), for her life, for her separate use, and, after her death, in trust for her children, and, if there should be no children, then, if she should survive any husband with whom she might intermarry, in trust for her, her executors, &c.; but if her husband should survive her, then in trust as she should, by will, appoint, and, in default of appointment, in trust for her next of kin, as if she had died intestate, and without having married. The daughter died a spinster: Held, that the words: "if my daughter shall survive any husband with whom she may intermarry," were words of condition and not of mere limitation, and, consequently, the residuary legatees, and not the daughter's executor, became entitled to the 4,0007. on her death. SAMUEL LENOX, by his will dated the 4th of April, 1835, gave the sum of 4,000l. to trustees, [in trust to invest it and to pay the income thereof to his daughter, Ann Lenox, during her life, for her separate use, without power of anticipation; and after the decease of his said daughter, the trust fund should be in trust for all or any one or more of her children, grandchildren, or other issue (such grandchildren or other issue to be born in her lifetime) as she should by deed or will appoint, and, in default of appointment, in trust for all her children as therein mentioned], but in case there should be no child of his said daughter, or no such child who, being a son, should attain the age of 21 years or be married, then, as to the trust fund, if his said daughter should survive any husband with whom she might intermarry, in trust for his daughter, her executors, administrators or assigns, for her and their own absolute use and benefit; but if the husband of his said daughter should survive her, then in trust for such person or persons, [as she, by will] should, notwithstanding her coverture, appoint, and, in default of such appointment, in trust for the person or persons who at her decease would have become entitled thereto under the statute for the distribution of the effects of intestates, if the said Ann Lenox had died possessed thereof, intestate and without having married; provided that, notwithstanding the trusts and provisions thereinbefore contained in favour of the children, grandchildren and issue of the said Ann Lenox, it should be lawful for her, [by deed or will, to appoint, to or in trust for any husband with whom she might intermarry, all or any part of the income of the trust fund, to be payable to such husband, during his life or any less period.] The testator then gave the sum of 16,000l. to the same trustees, upon trust to divide the same between his four daughters, Barbara Isabella Lenox, Margaret Lenox, Maria Lenox, and Jesse Lenox, in equal shares, as and for their respective portions; and he declared that the share or portion of each of the same four daughters should be held, by the trustees, upon the same or the like trusts, and with and under and subject to the same or the like powers, provisoes and declarations for the benefit of each daughter and her children, issue and appointees, as were therein before declared concerning the sum of 4,000l. therein before bequeathed in trust for the benefit of his daughter, Ann Lenox, and her children, issue and appointees, and including the like power of appointing in favour of a husband, and the like ultimate trusts for the benefit of the persons who, at the decease of the said Barbara Isabella Lenox, Margaret Lenox, Maria Lenox, and Jesse Lenox, respectively, would have been entitled thereunto under the statutes for the distribution of the effects of intestates if they respectively had died possessed thereof intestate and without having been married, or as near to such trusts, powers, provisces and declarations as might be. The testator then directed the income of the portions of his four last-named daughters, to be applied for their maintenance and education during their minorities: and he then gave the sum of 7,2431. to the trustees, upon trust to invest it in the usual securities, and to pay the income to his wife, for her life, and after her decease, upon trust, as to the capital, for his sons Samuel Lenox, Thomas James Lenox and John Lenox, and his five daughters Ann Lenox, Barbara Isabella Lenox, Margaret Lenox, Maria Lenox and Jesse Lenox, in equal shares, as tenants in common; and if his son John Lenox should die under the age of 21 years, or any of them, the said Ann Lenox, Barbara Isabella Lenox, Margaret Lenox, Maria Lenox and Jesse Lenox, should die under that age without having been married, then, as to the share or shares, as well original as accruing, of the said John Lenox and of his said daughters so dying under age as aforesaid, upon trust for the others of them his said three sons and five daughters in 18 R.R.-VOL. LI. LENOX v. LENOX. [ 403 ] [ *404 ] LENOX v. LENOX. [ *405] equal shares as tenants in common: And he declared that the share or shares, original and accruing, of his daughter Ann Lenox, of the said trust monies, stocks, funds and securities, should, after the death of his wife, be held, by the trustees, upon the same trusts, and with, under and subject to the same powers, provisoes and declarations for the benefit of herself and her children, issue and appointees, as were thereinbefore declared concerning the legacy of 4,000l. therein before bequeathed upon trust for the benefit of his daughter Ann Lenox, and her children, issue and appointees, and including the like power of appointing in favour of a husband; or as near to such powers, provisoes and declarations as might be; and that the share or shares, original and accruing, of each of his daughters, Barbara Isabella Lenox, Margaret Lenox, Maria Lenox and Jesse Lenox, of the said trust monies, stocks, funds and securities, should be held by the trustees, upon the same trusts, and with, under, and subject to the same powers, provisoes and declarations, for the benefit of his four last-named daughters respectively, and their respective children, issue and appointees, as were therein before declared or referred to concerning their respective shares of the 16,000l. herein before bequeathed in trust for the benefit of his four last-named daughters and their respective children, issue and appointees, and including the power of appointing in favour of a husband, or as near to such powers, provisoes and declarations as might be. The testator then gave his residuary estate to the same trustees, in trust, as to one moiety, for his son Thomas James Lenox, his executors &c. and, as to the other moiety, for his son, John Lenox, and to be transferred or paid to him on his attaining 21. The testator died in June, 1836. In March, 1839, Ann Lenox (having attained 21) died intestate and a spinster. Her mother, Margaret Lenox, took out administration of her effects. The bill was filed, by Thomas James Lenox and John Lenox, against Margaret Lenox and the trustees and executors of the will, praying that it might be declared that, by the death of Ann Lenox without having been married, the legacy of 4,000l. bequeathed in trust for her, and also her share and interest in the 7,2431., subject to the life-interest of Margaret Lenox in that sum, had fallen into the testator's residuary estate. Mr. Knight Bruce and Mr. K. Parker, for the plaintiffs: The question is what is the effect of the words: "if my said daughter, Ann Lenox, shall survive any husband with whom she may intermarry." We contend that they are not words of limitation, but of condition; and, therefore, as Ann Lenox never married, the ultimate limitation in trust for her, her executors &c. did not take effect; but the 4,000l., and one-eighth of the 7,2437., fell, on her death, into the residue. (THE VICE-CHANCELLOR: The testator seems to assume that his daughter would marry, and to treat it as doubtful whether she would survive her husband or not.) The intention which we impute to the testator is a reasonable one, Mr. Wigram and Mr. Prendergast, for Margaret Lenox, the The testator, in the limitations which he has made of the property in dispute, has provided for every event that could happen, except one and the question is whether the omission to provide for that event, is not a mere oversight. The trust for the separate use of Ann Lenox, and all the other trusts declared of the property, show that the testator's sole object was to protect his daughter from the marital right; it was immaterial to him whether she married or not. What difference could it make whether she had a husband who died in her lifetime, or whether she never had any husband at all? In short, the words: "if my said daughter shall survive any husband with whom she may intermarry," mean nothing more than: "if my said daughter shall die without leaving any husband her surviving": Jones *v. Westcomb (1), Mackinnon v. Sewell (2), Aiton v. Brooks (3), Murray v. Jones (4), Meadows v. Parry (5), [and other cases founded on Jones v. Westcomb]. In every one of those cases, the words, in their natural sense, were purely conditional. THE VICE-CHANCELLOR : The question on this will, is: can it be collected to be the testator's intention that the corpus of the legacy, should pass away from his estate, otherwise than by reason of the fact of marriage? (1) Prec. Ch. 316. (2) 39 R. R. 175 (2 My. & K. 202). (3) 40 R. R. 110 (7 Sim. 204).. (4) 13 R. R. 104 (2 V. & B. 313). LENOX v. LENOX. [406] [ *407 ] LENOX v. LENOX. [*408] [ *409 ] Mr. Knight Bruce, in reply: The majority of parents, when they provide for their daughters, do not mean them to take the capital unless they marry. I, therefore, show a reasonable ground for holding the words in this case, to be words of condition and not of limitation. Davis v. Norton (1) was decided on the principle which I have stated. Doe v. Shipphard (2) is a case of the same description. There Lord MANSFIEeld, Ch. J., says: "There may be a reason why the testator might not intend the limitations over to take place except in the event of the daughter's surviving her husband, viz. to secure the estate in tail to his grandson, Hewitt Shipphard, against any preference *his daughter might show to her issue by any subsequent husband. If she did not survive him, there could be no danger of that sort, as the estate would descend to Hewitt Shipphard. This bears no resemblance to the famous case of Jones v. Westcomb; for, there, the intention was clear that, failing the child, the estate should go over to the devisees in all events." THE VICE-CHANCELLOR : * The simplest of all the cases is Jones v. Westcomb; and all the others are, in fact, founded upon it. There, a man possessed of a long term of years, devised it, to his wife, for life, and, after her death, to the child she was then enceinte with; and, if the child died before it came to the age of 21, then he devised one third part of the term to his wife, her executors and administrators, and the other two thirds, to two other persons. The fact was that the wife was not enceinte; and the question was whether she was entitled to the one third of the term. There was nothing to prevent the wife from taking, except the fact of a child being alive to take it *from her and it was immaterial, in effect, whether the testator said that, in case no child should live to attain 21, or if the child should die before attaining 21, the ultimate limitation should take effect. In a case where the meaning of the testator clearly is that the ultimate limitation should take effect on the failure of a preceding gift, and that gift does fail, but the language in which the limitation over is expressed, does not, in terms, apply to the event which has happened, there, in my opinion, the limitation over should take effect. But you cannot read this will without seeing that marriage was the event which the testator contemplated; and that the circumstance of the legacy passing away from the bulk of his property, (2) 1 Doug. 75. (1) 2 P. Wms. 390. |