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opinion that the meaning I am going to attribute to the testator is not a meaning which he himself would disapprove of; beyond that I cannot say anything about his intention.

As I understand the authorities upon wills relating to personal estates, the modern authorities all shew that you are not to strain arbitrary rules of construction; there are some rules fixed in the law which must be abided by, but you are not to make new ones. It is further settled that, in the absence of definite arbitrary rules which bind every Court in matters of construction, the true guide is the meaning of the words, which are to be read literally, subject only to this, that there may be something in the nature of original gift or in the context of the instrument which will control the words.

First, therefore, one has to see whether the authorities which have been cited, and those referred to in the text books of Mr. Jarman, Mr. Hawkins, and Mr. Theobald-whether that immense mass of authorities decides anything which would have a bearing upon this will. Without saying that they do not, I think I may say they do not help me very much.

This I think is settled, that when a legatee takes by substitution, he or she must be a substitute. When you have a person who claims by substitution, you must shew that the person in whose place he stands, himself could take, which really is only stating the same proposition (which is a truism) in different words. But there are authorities which shew that when you find a gift in a will to A. or B., that word "or" is to have some meaning, and it is to have a meaning which depends upon what A. or B. really consists of. You cannot lay down a priori that the gift to A. or B. has any particular meaning; you must first of all know what A. and B. are.

To illustrate what I mean, you sometimes find that when you are told what A. and B. are, you arrive immediately at what the meaning is. Suppose a man says, for example, "I give £1000 to the Bishop of Rochester or his successor," there cannot be a doubt then that he means the present Bishop of Rochester to take if he is alive, and if he dies, then the bishop who occupies the see to take it. There the description of the legatee shews what you mean. So you may have a gift "to John Jones or his next of kin." I take it there that, in order for a person to take under the alternative, John Jones must be dead.

In those cases it is very plain; but you presently come to a class of cases in which it is not so plain. For instance, a testator gives a bequest "to John Jones or his children." Now, standing alone, it is not so plain as the case I have put, that the children are to take in the place of John Jones who is dead; but there the authorities do help me as to the meaning of the word "or," and shew that the children are only to take if John Jones is dead. To that extent I think the authorities are plain.

KALES FUT.INT.-35

But then you get to another class of gifts, in which, instead of having John Jones in place of A., you have a class for the A. and a class for the B. The first class, for instance, may be "the children of my nephew," or "my nephews and nieces," or "my great-nephews and nieces"followed by "or their children." Then what are you to do with the gift? The authorities shew that the children who are to take under the "or," which implies in all cases an alternative gift-assuming there is no context (which there may be) to make the "or" conjunctive—are the children of the class to whom the previous gift is made. But that does not throw much light on the question what the first class is, and it is upon that that the contest has chiefly turned. For instance, whether it includes people dead at the date of the will, people who die in the lifetime of the testator, or anybody who could not take at the death of the testator. Upon that point, as far as I can see, the authorities throw no light whatever, so that must depend upon the terms of the will itself. A man may, no doubt, speak of his dead nephews and nieces as "my nephews and nieces," but if he says, "I give to the children of my nephew John £100 each,” and you can shew that he knew his nephew John was dead, then it is quite plain that he speaks of a man as his nephew whom he knows to be dead. Or it may appear from another part of the will that he knew him to be dead, and if he then speaks of him as a nephew, although he knows him to be dead, he need not say "my late nephew" or "my deceased nephew." So that in every case, to find out what was the class originally intended, you must depend upon the will itself. I admit that if once you have found out what that class was, those who take under the alternative can only take in substitution, that is, in the place of members of that class, and must shew a title derived from that class. Where there is a gift to a class or their children, there you must shew that the child who claims is a child of one of the first class you must shew him to be in the A. before he can be in the B.

The point I really have to determine here is, who form the first class? There is no reasonable doubt as to the second. It is the issue of the first; and the issue of the first, according to the decisions, only take in case of the death of the first. Therefore, I have to find who are comprised in the gift which I have here, for "all and every the children. of the said Robert Fuller." The state of the family, as known to the testator, was this: His uncle had died in 1832, a great number of years before the will was made, in 1867. He had had six children, two of whom were living, Martha and Mary, and four were dead, and the four who were dead had been tolerably prolific and left a great number of descendants. That was the state of the family of his uncle. Some of them had died many years before, all had died some years before the date of the will. Knowing the state of the family (I will assume it for the present purpose as no inquiry is asked for upon it), he first of all gives the residue of his personal estate in this way, "to all and every the children of my uncle Robert Fuller, or their issue, in equal shares,"

then he gives his freeholds and copyholds upon trust for Ann Topping for her life, and after her death he directs his trustees to sell the same, and to hold the moneys arising from such sale, after payment of the costs attending such sale, in "trust for all and every the children of the said Robert Fuller, or their issue, in equal shares per capita." The distinction between the two gifts is, first of all, in adding “per capita ;" and, secondly, in the fact of there being a prior heir for life as regards freeholds and copyholds, and no prior estate for life as regards the personal estate.

Looking at the relationship of the testator, and looking at the fact that he describes them as the children of his uncle, that is, as his first cousins, one may assume that the motive of the gift was the relationship, and it would be a very singular thing if he intended to exclude from one class persons to whom he had given shares under the other class. It seems to me, therefore, perfectly reasonable to say in effect: "as I have given an immediate gift of my personal estate, I intend everybody living at the period of the distribution, or who may be entitled at the period of the distribution, to take," and to say the same thing as regards the real estate; the only effect would be that the latter class would include persons subsequently coming into being, but in other respects we should expect to find the classes identical. In the next place, it does not appear to me that an ordinary man, knowing that he had but two surviving cousins, the two children of his deceased uncles, would describe them as "all and every the children." To my mind that does convey an idea of more than two, and I think it would to the minds of most persons conversant with the ordinary uses of the English language, and it does weigh with me very much, seeing the expression used, and seeing the state of the family, that he did use twice over the words "all and every the children."

In the next place, we must look at the fact that they are collateral relatives, and, as I said before, the motive is explained by that collateral relationship. It is not, therefore, to be expected that he would particularly favour the issue of those two children of his uncle who happened to be living at the time at the expense of the issue of those four children of his uncle who were dead at the date of the will. It is not likely, when you see the description of the legatees and consider the motive, which I think the Court must assume to be the true motive, of the legacy. That, I think, again aids one in construing the will.

It being then settled, as I said before, no further than that the "or" is substitutionary for something, it does appear to me that, considering the state of the family, and the words used, there is nothing in the authorities to prevent my construing them literally, and reading "all and every the children" as meaning, not all the children he had then living, but all his children in the literal sense; and, consequently, I come to the conclusion that the issue of a child dead at the date of the will would take in the place of his parent, because that was really what the testator

intended by his description of the first class; in other words, he meant not only "all the children now living," but "all the children my late uncle had," and, consequently, that he meant the issue to take.

The next question is, how do they take? Again, applying substitution, they are to take in place of their dead parents or ancestors. Must not it follow, as they are to take in their place, that they are to take their shares? It seems to me that is the natural conclusion to which you come when you explain the words fully. As to those that are dead, their issue are to stand in their place but as between themselves they are to take in equal shares.3

Minutes. Declare that, upon the true construction of the will of Robert Sibley, the testator, the sum of £2431 cash in Court is divisible into six equal parts, and that the Petitioners Mary Lawson and Daniel Lawson, in the right of his wife the Petitioner, Martha Lawson, are respectively entitled to one of such parts, and that the respective issue of the four following persons, namely, John Fuller, Ann Dennis, Hannah Cannell, and Elizabeth Wilkins, the deceased children of Robert Fuller alive at the death of the testator, or born during the lifetime of Ann Topping, the tenant for life, were and are respectively entitled to one other sixth part, the issue of each of such four persons taking among themselves as tenants in common.

DEXTER v. INCHES.

(Supreme Judicial Court of Massachusetts, 1888. 147 Mass. 324, 17 N. E. 551.) HOLMES, J. This is a bill brought by trustees under the will of Henderson Inches for instructions as to who are the parties entitled under a clause leaving one-eighth of the residue in trust for the testator's son Charles for life, and then proceeding as follows: "At and after the decease of said Charles, if he shall leave a widow and issue, the

2Accord: Congreve v. Palmer, 16 Beav. 435; Timins v. Stackhouse, 27 Beav. 434; Gowling v. Thompson, 19 L. T. 242, 11 Eq. Cas. 366, note; In re Battersly's Trusts, [1896] 1 Ir. 600; Hall v. Hall, 140 Mass. 267, 2 N. E. 700; Kilgore v. Kilgore, 127 Ind. 276, 26 N. E. 56; Wood v. Robertson, 113 Ind. 323, 15 N. E. 457; Crozier v. Cundall, 99 Ky. 202, 35 S. W. 546; Gerrish v. Hinman, 8 Or. 348; Lyon v. Acker, 33 Conn. 222; Risk's Appeal, 52 Pa. 269, 91 Am. Dec. 156; Fissel's Appeal, 27 Pa. 55; Lockhart v. Lockhart, 56 N. C. (3 Jones Eq.) 205. Compare, however, Pitney v. Brown, 44 Ill. 363; McCartney v. Osburn, 118 Ill. 403, 9 N. E. 210.

3Accord: Gowling v. Thompson, 19 L. T. 242. Compare, however, Robinson v. Sykes, 23 Beav. 40.

So where the gift is to A. absolutely, but if A. dies before the testator's death or before the period of distribution, then to A.'s issue, all the issue take among themselves per capita and the remote issue take though their ancestors are living. Davenport v. Hanbury, 3 Ves. Jr. 257; Freeman v. Parsley, 3 Ves. Jr. 421; Weldon v. Hoyland, 4 De G. F. & J. 564; Hobgen v. Neale, 11 Eq. Cas. 48; In re Jones' Estate, 47 L. J. Ch. 775; Surridge v. Clarkson, 14 W. R. 979; Southam v. Blake, 2 W. R. 446; Birdsall v. York, 5 Jur. N. S. 1237.

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income of said fund shall be paid, one moiety for the use of the relict of said Charles, and the other moiety to his issue during the life of such relict. If said Charles shall leave no widow, and shall leave issue, then, at his decease, the principal or capital sum shall be paid. and distributed equally to and among the issue of said Charles; and if said Charles shall die leaving a widow, and no issue, then the widow shall enjoy the whole income during her life. If, at the decease of said Charles and his widow, (if one shall survive him,) there shall be no issue of said Charles then living, the principal sum or trust fund shall go to my other children in equal parts or shares." Charles died, leaving no widow, but leaving three children, and also grandchildren and great-grandchildren, descendants of two of these three children; and the question is whether the grandchildren and great-grandchildren are entitled to share with the children from whom they are descended. The testator gave the residue of his property to his eight children in equal shares, seven of them taking their shares outright, but Charles' share being put in trust for him by a subsequent clause, with the above-recited limitation over, which we have to construe. The will further provides that "in case of the decease of either or any of my children before the receipt of his or her share, leaving issue him or her surviving, such issue shall represent and take the parent's share." The general scheme of the will, then, was one of equal division, in which the issue of any of the other seven children who died intestate would have taken by way of representation, and the issue of any child, including Charles, would have taken by way of representation, if that child had died "before the receipt of his share."

However the English courts would construe the word “issue” in the clause before us, occurring in such a will, we cannot bring our minds to doubt that the testator intended issue to take in a representative or quasi representative way, and we think that the intention fairly appears from the will itself, in the circumstances to which we have adverted. The difficulty which was felt by Lord Loughborough, in Freeman v. Parsley, 3 Ves. 421, in finding a medium between total exclusion of grandchildren and the admission of them to share with their parents, does not strike us as insuperable, supposing that he

4 "The generality of the word 'issue' will be restrained, if the testator explains that he meant by issue children. This will be the case if the word 'issue' is coupled with father or mother or parent; for instance, if in a substitutional gift to issue, the issue are directed to take their parent's share. Sibley v. Perry, 7 Ves. 522; Pruen v. Osborne, 11 Sim. 132; Smith v. Horsfall, 25 B. 628; Stevenson v. Abingdon, 31 B. 305; Macgregor v. Macgregor, 1 D., F. & J. 63; Martin v. Holgate, L. R. 1 H. L. 175; Bryden v. Willett, 7 Eq. 472; Heasman v. Pearse, 7 Ch. 275; In re Judd's Trusts, W. N. 1884, 206. See, however, Ralph v. Carrick, 11 Ch. D. 873." Theobald on Wills (7th Ed.) pp. 318-319.

The same rule has been followed in the United States in a few cases. Coyle v. Coyle, 73 N. J. Eq. 528, 68 Atl. 224 (a reluctant decision by a single judge); Nice's Estate, 227 Pa. 75, 75 Atl. 1025; King v. Savage, 121 Mass. 303 (now apparently overruled in Massachusetts by the principal case). See, also, Arnold v. Alden, 173 Ill. 229, 239, 50 N. E. 704.

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