Gifts to a Class.

"It appears to be settled that the same rules are applicable to the case of realty and personalty for the purpose of fixing the period, when the persons to take under a class name are to be ascertained, though the reasons for the rules in the case of personalty, which it is desirable to distribute as soon as possible, do not apply to realty."-Theobald's Law of Wills, 3rd ed., p. 229. "Where a time of payment was pointed out, as where a legacy is given to all the children of A., when they shall attain twentyone, it was too late to say that the time so pointed out shall regulate among what children the distribution shall be made. It must be among the children in esse at the time the eldest attains such age. He [Lord Loughborough] said he had often wondered how it came to be so decided, there being no greater inconvenience in the case of a devise than in that of a marriage settlement, where nobody doubts that the same expression means all the children."-Andrews v. Partington (1791), 3 Bro. C. C. 401, at p. 404, Lord Loughborough, L. C.

"To induce the Court to hold the bequests in this will to be partially good, the case has been argued as if they had been made to some individuals who are, and to some who are not, capable of taking. But the bequests in question are not made to individuals, but to classes; and what I have to determine is, whether the class can take. I must make a new will for the testator if I split into portions his general bequest as to the class, and say that because the rule of law forbids his intention from operating in favour of the whole class, I will make his bequests what he never intended them to be, viz., a series of particular legacies to particular individuals, or what he had as little in his contemplation, distinct bequests in each instance to two different classes, namely, to grandchildren living at his death, and to grandchildren born after his death."-Leake v. Robinson (1817), 2 Mer. 363, at p. 390, Sir William Grant, M. R.

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Being opposed to the frittering away of general rules, and thinking that such rules, so long as they remain rules, ought to be followed, I hold that a gift contained in a direction to pay and divide amongst a class at a specific age, followed by a direction to apply the whole income for maintenance in the meantime, is vested, and not the less so because there is a discretion conferred

on the trustees to apply less than the whole income for that purpose."-Fox v. Fox (1875), L. R. 19 Eq. 286, at pp. 290, 291, Sir G. Jessel, M. R.

"The authorities seem to me to amount to this: that, where, upon looking at the whole will, the testator must be considered to have made it upon the basis or footing of adopting or taking a certain time as the period of distribution or division, the Court must, taking that period, construe the will accordingly, although possibly it is not the period for the actual distribution of the fund; but for the purposes of the will it must be taken to be so; therefore, the class living at the period take."-In re Emmet's Estate (Nov. 29th, 1879, 1880), 13 Ch. D. 484, at p. 489; 49 L. J. Ch. 21, at p. 23, Hall, V.-C.

"The present appeal is from a decision of Vice-Chancellor Hall on the construction of a will, which appears to me as clearly and well drawn as any will need be. Under that will any layman would understand that all the children of George Nelson Emmet, at whatever time they were born, would become entitled, and in the absence of authority so should I. There has, however, been established a rule of convenience, not founded on any view of the testator's intention, that since when a child wants its share it is convenient that the payment of the share should not be deferred, it shall be made payable by preventing any child born after that time from participating in the fund. The rule is, that, so soon as any child would, if the class were not susceptible of increase, be entitled to call for payment, the class shall become incapable of being increased. That rule of convenience, being opposed to the intention, is not to be applied where it is not necessary, there being also a rule that you let in all who are born up to the time when the share becomes payable."-In re Emmet's Estate (Jan. 21st, 1880), 13 Ch. D. 484, at p. 490; 49 L. J. Ch. 295, at p. 295, Jessel, M. R.

“A gift is said to be to a class' of persons, when it is to all those who shall come within the category or description defined by a general or collective formula, and who, if they take at all, are to take one divisible subject in certain proportionate shares; and the rule is, that the vice of remoteness affects the class as a whole, if it may affect an unascertained number of its members. That was really the point decided in the case of Leake v. Robinson (1817), 2 Mer. 363, at p. 390."-Pearks v. Moseley (July 5th, 1880),

5 App. Cas. 714, at p. 723; 50 L. J. Ch. 57, at pp. 61, 62, Lord Selborne, L. C.

"The rule in question depends upon no principle whatever, but is simply a rule of convenience, and no doubt the judges before whom it has come have felt that in many cases it pressed very hardly, because it excludes children intended by the testator to take. But the exclusion is simply, as it is said, in order to arrive at a result which is less inconvenient than extending the period during which the class is to be formed. But, in the present case, where there is an accumulation directed, and no one can, therefore, enter into the actual enjoyment of his share until the period of accumulation has come to an end, I do not see that there is any consideration of convenience, or of lesser inconvenience, which obliges me to shut up the class until the period of accumulation comes to an end. So far as I can judge from the expressions used by the judges in other cases, they seem to be of opinion that the period which closes the class is the period when the first member of the class becomes entitled to the actual possession or enjoyment of his share. I hold, therefore, that all the children born during the period of accumulation can take.”—Watson v. Young (1885), 28 Ch. D. 436, at pp. 445, 446; 5 L. J. Ch. 502, at p. 506, Pearson, J.

"I take it that is a well-known canon of construction that when there is a gift to a class, as soon as the gift is divisible and there are members of the class entitled to receive their shares, the class cannot be added to. This is thus expressed by Page Wood, V.-C., in Re Smith (1862), 2 J. & H. 594, at p. 601 : As long as a fund is in hand, the general rule is that new members of the class may be let in. The time when the money is distributable is the time for ascertaining the class, after which no more can be let in. Children born after the fund becomes divisible are not entitled to share.' That is a well-established rule, and is not to be departed from in this case."-In re Bedson's Trusts (1885), 28 Ch. D. 523, at pp. 526, 527; 54 L. J. Ch. 644, at p. 646, Cotton, L. J.

"The result is that you may have to take a testator's death as the time when the class is ascertained; but if there is a life estate which prevents the distribution of the fund till the life estate is over, then you look to the period of distribution, which is, in that case, the determination of the life estate, and then you find, not who the persons who will take are, but you fix the maximum number of which the class can consist, and then divide the shares,

as far as they are divisible, upon that footing. If there are six children living, one of whom has attained twenty-one, it will get its one-sixth; if another attains twenty-one, it will get its sixth afterwards; if a third dies under twenty-one it does not take a share, and the fund will be divisible into fifths, and the first two who have had their sixth shares would be found entitled each to one-fifth of another sixth, and so on. In the case of a life estate, the period of distribution is usually the death of the tenant for life, but the period of distribution is not necessarily the determination of the life estate. The period at which the fund has to be distributed is the time that actually has to be taken."In re Knapp's Settlement, [1895] 1 Ch. 91, at pp. 96, 97; 64 L. J. Ch. 112, at p. 114, North, J.

"Where the Court, as a matter of construction, arrives at the conclusion that a particular class of persons is to be benefited according to the intention of the testator, if there has been an inaccurate enumeration of the persons composing that class, the Court will reject the enumeration. I think the principle of the cases goes no further than that."-In re Stephenson, Donaldson v. Bamber, [1897] 1 Ch. 75, at p. 81; 66 L. J. Ch. 93, at p. 95, Lord Russell of Killowen, L. C. J.

"Now, the rule laid down in Andrews v. Partington (1791), 3 Bro. C. C. 401, has been repeatedly stated to be a rule merely of convenience. When the rule is adopted the solution arrived at is the result of an endeavour by the Court to reconcile two apparently inconsistent directions-the one that the whole class of children shall take, and the other that the fund shall be divided at a moment when the whole class cannot be ascertained. The Court has cut that knot by closing the class at the date at which the first child is to take. But, as I shall show from decided cases, the rule is never applied unless it is necessary. Where it is unnecessary to resort to it, you give effect to the disposition as it is, and directly you find, as you do in this case, that there is a direction to accumulate after the date at which the eldest child attains twentyone-that is to say, where the fund to be divided is a fund to be aggregated and accumulated after that date, so that the divisible fund is not known at that date- you are driven to the conclusion that the child who first attains twenty-one cannot have that which is apparently given to him at that date because the sum to be divided is not then known. Therefore, where you find a direction. to accumulate to a later date, the rule in Andrews v. Partington

(1791), 3 Bro. C. C. 404, does not apply."-In re Stephens, [1904] 1 Ch. 322, at p. 328; 73 L. J. Ch. 3, at p. 6, Buckley, J.

Law of Remoteness.

"The rule which has always been applied to cases of remoteness is this: You do not import the law of remoteness into the construction of the instrument, by which you investigate the expressed intention of the testator. You take his words, and endeavour to arrive at their meaning, exactly in the same manner as if there had been no such law, and as if the whole intention expressed by the words could lawfully take effect. I do not mean that in dealing with words which are obscure and ambiguous, weight, even in a question of remoteness, may not sometimes be given to the consideration that it is better to effectuate than to destroy the intention; but I do say that, if the construction of the words is one about which a Court would have no doubt, though there was no law of remoteness, that construction cannot be altered, or wrested to something different, for the purpose of escaping from the consequences of that law."-Pearks v. Moseley (1880), 5 App. Cas. 714, at p. 719; 50 L. J. Ch. 57, at p. 59, Lord Selborne, L. C. (cited by Stirling, J., in In re Mervin, Mervin v. Crossman, [1891] 3 Ch. 197, at pp. 200, 201; 60 L. J. Ch. 671, at p. 673; and in In re Bowen, Lloyd Phillips v. Davis, [1893] 2 Ch. 491, at p. 496; 62 L. J. Ch. 681, at p. 684).

Rule against Perpetuities.

"We are not at liberty to misconstrue the will in order to avoid an intestacy resulting from the application of that rule [against perpetuities], any more than in cases in which gifts are bad under the Charitable Uses Act. We must construe the will and ascertain its meaning."-In re Turney, [1899] 2 Ch. 739, at p. 744; 69 L. J. Ch. 1, at pp. 3, 4, Lindley, M. R.

"I agree, especially in the view that, when it is possible so to construe a will as not to render a material part of it void by an application of the rule against perpetuities, it is desirable to do so. Of course, as the Master of the Rolls has said, the Court has no right to misconstrue a will with that object, but, if the language of a will is ambiguous, it is right to lean rather to a construction which will undoubtedly carry out the intention of the testator, in