1851.-Williams v. Williams.

guardians, yet I do not see any ground warranting me in interfering on motion.

The result is that I shall dismiss this motion; but, under all the circumstances, I shall make no order as to the costs of it.

*My view of the case has rendered it unnecessary [*358] for me to consider the question, whether this record is so framed as to entitle the plaintiffs to sue at all; and, therefore, as to that part of the argument, I desire to be consid ered as not having expressed any opinion at all.

WILLIAMS v. WILLIAMS.

Power.-Trust.-Precator Trust.-Family.-Will.-Construction.

1851: 19th February and 19th March.

Testator, by his will, gave personal property to his wife, absolutely, for her own use and benefit. By a codicil, which was in the form of a letter to his wife, he said: "It is my wish that you should enjoy everything in my power to give, using your judgment as to where to dispose of it amongst your children when you can no longer enjoy it yourself: but I should be unhappy if I thought it possible that any one not of your family, should be the better for what, I feel confident, you will so well direct the disposal of."

Held, that the word "family," was not confined to children, but included descendants in every degree; and that the wife was entitled to the property, absolutely, and not merely for her life with a power in the nature of a trust for her children.

THE plaintiff was the eldest son, and the defendants, Charles and Diana Hamlyn Williams, were the only other surviving children of Sir James Williams, late of Clovelly Court in the county of Carmarthen, Bart., by Diana, his wife, both deceased: the defendant, Clissold, was the personal representative of Lady Williams. The bill stated that Sir James made his will dated the 21st March, 1826, and thereby, after devising the freehold hereditaments therein described in manner therein mentioned, gave and bequeathed all rents and arrears of rent which should be

แ

1851.-Williams v. Williams.

due or owing to him, at the time of his decease, from all, every or any of the tenants of his estates therein mentioned, and of his other estates in Devonshire and Carmarthenshire, together with

the lease of his house in Upper Grosvenor street in the [*359] *county of Middlesex, and all the furniture therein, and also all money which, at the time of his decease, should

be found in any of his houses, and all money which should be at his bankers', also all and every sum and sums of money which should be then invested in his name, or in the names of others in trust for him, in all, every and any of the public funds, and also all his horses not being used for husbandry, carriages, musical instruments, pictures, drawings, prints, plate, linen, china, diamonds, trinkets, watches and other ornaments in any of his houses in town or country, unto his wife, Dame Diana Williams, absolutely, for her own use and benefit: and the said testator thereby directed his trustees, immediately after his decease or as soon after as they conveniently could, to sell and dispose of all and every the live and dead stock and all other farming utensils and implements of husbandry which might be used in any of his farms holden by him, both in Devonshire and Carmarthenshire, at the time of his death, at or for the best price or prices which could be obtained for the same; and he directed the produce of such sale to be, immediately or as soon as could be thereafter, paid unto and divided equally between his sons, Charles Williams and Orlando Williams: and, after giving certain pecuniary legacies to the persons in his will named, the testator appointed his wife, Dame Diana Williams, jointly with John Webb and Zackary Hammett Drake, executrix and executors of that his will, and requested that his wife would act as guardian to his eldest daughter, Diana Hamlyn Williams, and make such provision for her and in such way as she, his said wife, might think advisable.

The bill next stated that the testator made a codicil to [*360] his will, which codicil was dated the 23d day of *August, 1829, and was in the words and figures following: 'Clovelly Court, August 23d, 1829-My dear Dy: A stamp for 8s. 6d. is not to be had in these parts. I shall, therefore, feel

1851.-Williams v. Williams.

obliged to you to give Charlotte, with my kindest love, the sum that stamp would cover, namely, 1,000l. It will be a nice little nest egg for her; and you will find plenty at the bankers' after having so done. Independent of money at the bankers', where I always like a good balance, there are large arrears due from tenants, and I hope my will is so worded that everything that is not in strict settlement you will find at your command. It is my wish that you should enjoy everything in my power to give, using your judgment as to where to dispose of it amongst your children when you can no longer enjoy it yourself: but I should be unhappy if I thought it pos sible that any one not of your family, should be the better for what, I feel confident, you will so well direct the disposal of. May Heaven bless and protect you. Most affectionately yours, JAMES WILLIAMS.-I direct this to Charlotte, from whose hands you will receive it." The bill next stated that, by the words, "My dear Dy," used in the codicil, the testator meant and intended his late wife, Dame Diana Williams; and that, by the name, "Charlotte" used in the codicil, the testator meant and intended his daughter, Dame Charlotte Chichester, late the wife of Sir Arthur Chichester, Bart., both of whom were since dead: that the following words were endorsed, by the testator, upon the codicil (that is to say): "Lady Chichester, to be read by her and then given to her mother by her:" that the codicil was, in fact, sent by the testator to Dame Charlotte Chichester, and was duly delivered by her to the said Dame Diana Williams. The bill further stated that the testator died on 3d December, 1829; and that his will and codicil were duly proved by *his executrix and executors: that, under and by virtue [*361] of the codicil, Dame Diana Williams became entitled to all the personal estate and effects of the testator, for her life, with a power of appointing the same to such of her children living at the time of her death, as she should think proper; and that in default of and subject to any such appointment, the said personal estate vested, absolutely, in the children of Dame Diana Williams living at the time of her death: that she, notwithstanding the codicil, appropriated to her own use the whole of the personal estate and effects of the testator, and that she sold large portions of the personal estate, and converted the proceeds thereof to her own use. The bill

1851.-Williams v. Williams.

further stated that Webb and Drake died in the lifetime of Dame Diana Williams: that she died in September, 1849, having made her will and appointed the defendant, Clissold, the executor thereof: that she left three children only her surviving, that is to say, the plaintiff and the defendants, Charles Williams and Diana Hamlyn Williams: that she made no appointment, either during her life or by her will, of the personal estate and effects bequeathed to her, for her life, by the codicil to the will of the testator; and, consequently, the plaintiff, upon her death, became absolutely entitled to one-third part of such personal estate and effects, as one of her three children who were living at her death: but that the defendant, Charles Williams, alleged that under the codicil, Dame D. Williams became absolutely entitled to the residuary personal estate of the testator. The bill prayed, amongst other things, that it might be declared that in the events that happened, the plaintiff became, under and by virtue of the codicil to the will of the testator, absolutely entitled to one-third part of his residuary personal estate and effects.

[*362] *The defendant, Charles Williams, put in a general

demurrer.

Mr. Rolt and Mr. Glasse, in support of the demurrer, said that there could be no doubt that Lady Williams took an absolute interest under the will, in the property thereby bequeathed to her; and that the only question was whether the words in the codicil, "It is my wish that you should enjoy everything in my power to give, using your judgment as to where to dispose of it amongst your children when you can no longer enjoy it yourself: but I should be unhappy if I thought it possible that any one not of your family, should be the better for what, I feel confident, you will so well direct the disposal of," cut down that interest to a life-interest, and imposed an obligation on Lady Williams to dispose of the property, at her death, amongst her children: that the testator immediately before he used those words, said he hoped his will was so worded that Lady Williams would find everything that was not in strict settlement, at her command; which showed that he intended the property to remain at her

1851.-Williams v. Williams.

disposal; that in the next sentence, the testator did not give any direction or recommendation, or express any wish or desire that Lady Williams should, at her death, dispose of the property amongst her children; but assumed that, in the natural course of things, she would so dispose of it, and expressed a wish to this extent only-that, if she did the act which she probably would do of her own free will, she would use her judgment in doing it; and, consequently, that Lady Williams held the property at her death, unfettered with any trust either express or implied: Harland v. Trigg,(a) *Sale v. Moore,(b) Meredith [*363] v. Heneage,(c) Lechmere v. Lavie, (d) Knight v. Knight,(e) Curtis v. Rippon,(g) and Winch v. Brutton.(h)

Mr. Bethell, Mr. Malins and Mr. Karslake, in support of the bill, said that the words, "using your judgment as to where to dispose of it amongst your children when you can no longer enjoy it yourself," imposed a condition or obligation on Lady Williams, to dispose of the whole of the property that the testator had given her, when she could no longer enjoy it herself, that is to say, at her death, amongst her children; that a gift of 100l. to A., he paying B. 407., was not a gift to A., simpliciter, but was a gift to him with a condition annexed that he should pay B. 401.: 1 Sheppard's Touchst., Preston's ed. 123; that the word "family," in the next sentence, was clearly equivalent to "children;" and that sentence was expressive of the testator's confidence that Lady Williams, in exercising the power with which he had intrusted her, would be influenced by considerations of prudence and

affection.

The Vice-Chancellor.-The expression is, "your family." Had Lady Williams any children by a former husband?

(a) 1 Bro. C. C. 142.

(b) 1 Sim. 534; and 2 Eng. Ch. R. part 1, 534, Am Ed.

(c) Ibid. 542; and 2 Eng. Ch. R. part 1, 543, Am. Ed.

(d) 2 Myl. & Keen, 197; and 7 Eng. Ch. R. part 2, 198, Am. Ed.

(e) 3 Beav. 148, and 11, Cl. & Fin. 513, nom. Knight v. Boughton.

(g) 5 Madd. 434.

(A) 14 Sim. 379; and 37 Eng. Ch. R. 578, Am. Ed.