1843-Davenport v. Bishopp.

Testator bequeathed the residue of his personal estate after the decease of his wife upon trust, to pay the interest and proceeds thereof to N. for life; and after his decease, the testator bequeathed the said trust-money unto all the children of the said N., in equal shares; and, in case N. should die without leaving lawful issue, the testator gave and bequeathed the said trust-money unto his, the testator's, nieces M. and E., to be equally divided between them, share and share alike; if either of his said nieces should depart this life without issue, then he gave and bequcathed the part or share of her so dying to the survivor of them :-Held, that the words "depart this life" meant "depart this life in the lifetime of either of the preceding tenants for life;" consequently, that E., having survived the tenants for life, took an absolute interest in one moiety of the residue, though she died without issue in the lifetime of M.

*Another question in this cause arose upon the construc- [*463] tion of the will of Francis Cheselden.

By his will, dated the 25th March, 1815, Francis Cheselden gave and bequeathed the residue of his personal estate, after the decease of his wife, upon trust to pay the interest and proceeds thereof to Nedham Cheselden for his life; and, after his decease, the testator bequeathed the said trust-money or property unto all the children of the said Nedham Cheselden, in equal shares, as he should by deed or will bequeath or appoint the same; and in case the said Nedham Cheselden should die without leaving lawful issue, the testator gave and bequeathed the said trust-money or property unto his, the testator's, nieces, Mary Jane Weltden Lucas (afterwards Bishopp,) and Eleanora Roberts, (afterwards Davenport,) daughters of his sister, Mary Roberts, to be equally divided between them, share and share alike; and if either of his said nieces should depart this life without issue, then he gave and bequeathed the part or share of her so dying to the survivor of them; but if either of them should depart this life, leaving a child or children, then the said testator declared his will to be, that such issue should be entitled to his, her, or their parent's share.

The moiety of Francis Cheselden's residuary personal estate, to which, under the foregoing will Mrs. Davenport was contingently entitled, was comprehended in her marriage settlement in the manner before mentioned.(a) Accordingly, upon the death of Nedham Cheselden, who never had any issue, the sum of

(a) See ante, p. 451.

1843.-Davenport v. Bishopp.

43687. 11s. 5d. Consols, which constituted nearly one moiety of Francis Cheselden's residuary personal estate, was transferred to the trustees of that settlement.

[*464]

*Upon the death of Mrs. Davenport, her husband, the plaintiff, claimed to be paid the sum of £2000, mentioned in the settlement, out of the 43681. 11s. 5d. Consols, and to receive the dividends on the residue of that stock for his life; insisting that, according to the true construction of Francis Cheselden's will, one moiety of his residuary personal estate, upon the death of Nedham Cheselden without children, vested absolutely in Mrs. Davenport, and became subject to the trusts of the settlement. Mrs. Bishopp, on the other hand, claimed to be absolutely entitled to that moiety, upon the death of her sister without issue.

Mr. Russell, for the plaintiff, observed, that the words "if either of my said nieces shall depart this life" meant "if either &c. shall depart this life before she comes into possession." An absolute interest was given to the nieces in the first instance. The gift over, therefore, was only substitutionary, in the event of either dying in the lifetime of the tenant for life. Montagu v. Nucella. (a) [The Vice-Chancellor referred to Lord Douglas v. Chalmer.(b)

The point was not pressed on the other side.

THE VICE-CHANCELLOR.-My impression upon this will, having regard to all the expressions contained in it, is, that the words "if either of my said nieces shall depart this life" mean, "if either of my said nieces shall depart this life, living either of the former tenants for life." Neither of the events here contemplated occurred, and therefore the interest will be governed by the settlement.

(a) 1 Russ. 165.

(b) 2 Ves. jun. 501.

1843.-Mair v. Quilter.

1843: July 11th.

*MAIR V. QUILTER.

[*465]

Testatrix bequeathed a sum of stock to trustees, upon trust to pay the dividends thereof to her grand-daughter for life, and after her decease in trust to assign, transfer, and dispose of the capital unto and among the children of her said grand-daughter, share and share alike, at their ages of twenty-one, or sooner if the trustees should think proper; and in case the said grand-daughter should die without leaving any child or children, or, leaving such, all of them should die before they or any of them should become entitled to the trust-monies, then in trust to assign and transfer the capital to A. The will contained no clause of survivorship among the children. The grand-daughter had eleven children, of whom seven died in her lifetime, two only out of the seven having attained twenty-one. The four survivors attained twenty-one-Held, that the six children who attained twenty-one took vested interests in the stock, and that, upon the death of their mother, the whole stock was divisible amongst them or their representatives, in six equal shares.

THE will of Mary Frances Baronneau was partly in these terms:-I give and bequeath to my son, Francis Baronneau, and Matthew Chalie, their executors, administrators, and assigns, the capital sum of £5000, £4 per Cent. Consolidated Bank Annuities, upon trust, nevertheless, and to and for the several intents and purposes hereinafter mentioned, (that is to say,) as to the sum of £2500, being one moiety thereof, in trust to pay, apply and dispose of the interest, dividends, and annual proceeds of the said £2500 Bank Annuities to my grand-daughter Frances Helena Baronneau, for the term of her natural life, to and for her sole and separate use and benefit, and not to be subject or liable to the debts, control, or engagements of any husband with whom she may intermarry, but to be paid into her own proper hands, and her receipt alone from time to time, notwithstanding her coverture, to be a sufficient discharge to the said trustees for the same; and from and after the decease of my said granddaughter, then in trust to assign, transfer, pay, apply, and dispose of the said capital sum of £2500 Bank Annuities, and the interest and dividends to accrue due in respect thereof after the death of my said grand-daughter, unto and among all and every the child and children of my said grand-daughter, or for their preferment or advancement in life, if more than one, equally

1843.-Mair v. Quilter.

share and share alike, and, if but one, to such only child, at their or his age or ages of twenty-one years, being a son or sons, and being a daughter or daughters, at such age or day or days of marriage, which shall first happen, or sooner if the said trustees

shall think proper, and for their advantage. And in case [*466] my said grand-daughter shall happen *to die without leaving any child or children, or, leaving such, all of them shall die before they or any of them shall become entitled to the said trust-monies, then in trust to assign, transfer, and pay one equal moiety, or equal half part of the said sum of £2500, and the interest and dividends thereof then unapplied, unto the said Francis Baronneau, his executors, administrators, or assigns, to and for his and their own use and benefit; and as to the sum of £2500, residue of the said sum of £5000 Consols, and also as to the remaining or other moiety of the said first mentioned sum of £2500 Bank Annuities, from and after the death of my said grand-daughter Frances Baronneau, and failure of children by her, in trust, &c. [Then followed certain trusts in favor of the testatrix's grand-daughter, Mary Ann Mackenzie.] And the testatrix devised and bequeathed all the residue of her estate, whether real or personal, unto her said son, Francis Baronneau, his heirs, executors, and administrators, and appointed him and Matthew Chalie executors of her will.

The will of the testatrix was duly proved by the executors. In 1812, Francis Baronneau died, having by his will bequeathed all his residuary personal estate to his wife, Elizabeth Baronneau, who, at the institution of this suit, was his sole personal representative.

Frances Helena Baronneau married Colonel Alexander Mair, and had by him eleven children, of whom four only survived their parents; the other seven having died in their lifetime, though after the death of the testatrix, intestate and unmarried, and two only of the seven, a son and a daughter, having attained the age of twenty one. Colonel Mair died in 1836, and Mrs. Mair in 1840.

The executors of Colonel Mair took out letters of administration of the personal estate of the seven deceased children; and in this suit, which was instituted for the purpose of having the

1843.-Mair v. Quilter.

trusts of the will of Mrs Baronneau established so far as related to the £5000 stock, they by their answer insisted that the children of Colonel Mair *took vested interests at their [*467] birth in that moiety of the stock in which Mrs. Mair had

a life interest; and they, therefore claimed seven-elevenths of that moiety. At the hearing, however, they confined their claim to the shares of the two deceased children who attained twentyone; the other claimants of those two shares being, on the one hand, the surviving children, all of whom had attained twentyone, and two of whom were the plaintiffs in the suit; and on the other hand, Elizabeth Baronneau, as representing the residuary legatee of the testatrix.

Mr. Simpkinson and Mr. Evans, for the plaintiffs.

Mr. Boyle, for a defendant in the same interest.

Mr. Wigram and Mr. Hall, for the defendant Elizabeth Baronneau, contended, that the shares of the two children who attained twenty-one, and died in their parents' lifetime, lapsed to their client as representing the residuary legatee under the will of the testatrix; the interests of those children not having been vested, and there being no clause of survivorship in the will in favor of the living children: Skey v. Barnes,(a) Cross v. Cross.(b)

Mr. Spence and Mr. Blunt, Mr. Cooper and Mr. Shee, appeared for other parties.

THE VICE-CHANCELLOR was of opinion, that the six children of Mrs. Mair who attained twenty-one took vested interests.

By the decree (as drawn up) it was declared, that the only children of Frances Helena Mair, who took vested interests in, or who were entitled to participate in, that portion of the legacy of £5000, 31. 10s. per Cent. Reduced Annuities, the income whereof was, in the first instance, given to the said Frances Helena Baronneau (afterwards Mair) for her life, were *&c., [names of the six [*468] children, being those only of the children of the said Frances Helena Baron

(c) 3 Mer. 335.

VOL. II.

(b) 7 Sim. 201.

55