In re ORLEBAR'S SETTLEMENT TRUSTS. Settlement-Death of Tenant for Life "leaving a Child or Children”—Trust for "the Child or Children"-Death of Child after Twenty-one in lifetime of Tenant for Life-Vested Interest. By a settlement trustees were directed to hold trust funds upon trust to pay the income to E. H. for life, and after her death, "leaving a child or children," to transfer, pay, and make over the fund unto “all and every the child or children of the said E. H., and the issue of such of the said children as might be then dead" (such issue to take the parent's share), equally between them if more than one, the shares of sons to be transferred and paid at the age of twenty-one, and the shares of daughters at that age or marriage. Five of the children of E. H. survived her, and attained twenty-one or married, and one son of hers attained twenty-one and died without issue in her lifetime: Held, that although the trust only took effect in case some one child survived E. H., the contingency upon which the trust took effect was not 'to be imported into the constitution of the class who were to take under the trust, and that the son who attained twenty-one and died in the lifetime of the tenant for life without issue took, nevertheless, a vested interest in the fund. PETITION. By an indenture dated the 12th of July, 1821, being a settlement executed in consideration of the marriage afterwards solemnized between William Augustus Orlebar and Mary Caroline his wife, trust funds were assigned to trustees upon trust to pay the income to Mary Caroline Orlebar during her life for her separate use, and after her death to set apart so much of the corpus as would produce the yearly sum of £600, and to pay that sum to William Augustus Orlebar during his life; and to hold the residue of the trust fund upon trust, in case there should be any children then living of the marriage, immediately after the death of M. C. Orlebar to assign, transfer, and make over the same among the children of W. A. and M. C. Orlebar, or the issue of any such of them as might be dead leaving issue, in such manner as M. C. Orlebar should appoint, and in default of appointment to transfer, pay, and make over the trust premises unto all and every the child and children of W. A. and M. C. Orlebar, and the issue of such of them as might be dead (such issue to take the parent's V.-C. H. 1875 July 16. 1875 In re SETTLEMENT TRUSTS. V.-C. H. share), equally between them if more than one, and if there should be but one such child, then the whole to such only child, the shares of sons to be transferred to them at their respecORLEBAR'S tive ages of twenty-one, and the shares of daughters at their respective ages of twenty-one or days of marriage, which should first happen after the death of M. C. Orlebar. And it was thereby provided that in default of appointment, in case any such child or children being a son or sons should attain the age of twenty-one years, or being a daughter or daughters should attain that age or marry in the lifetime of M. C. Orlebar, then and from thenceforth his or her interest in the trust premises should be a vested interest, and should be transmissible as such to his, her, and their issue, notwithstanding the death of such child or children afterwards in the lifetime of M. C. Orlebar. And after a clause providing that if any such child being a son should die under the age of twenty-one, and without leaving issue at his death, or being a daughter should die under that age and unmarried, then the share provided for such son or daughter should accrue to the survivor or survivors and other or others of the same children, and the issue of such of them as might be dead having first acquired a vested interest in their respective original shares, to be equally divided between them, it was provided that in default of children of the marriage (which event happened) the trustees should, after the death of the said M. C. Orlebar (and subject to the payment of the said annual sum of £600 to the said W. A. Orlebar during his life) hold the trust fund upon trust to pay the annual proceeds thereof unto Elizabeth Hancock and Maria Orlebar (two of the sisters of M. C. Orlebar) during their respective lives in equal shares for their separate use, "and after the decease of either of them leaving a child or children, then as to one moiety of the whole of the trust premises, upon trust to assign, transfer, pay, and make over the same unto, between, and among such one or more of the children of the said Elizabeth Hancock and Maria Orlebar, who should first happen to depart this life, or the issue of such children as might be then dead leaving issue living at his or their death, or born in due time afterwards, at such age and in such manner as the said Mary Caroline Orlebar should by deed or will appoint, and in default of appointment then upon V.-C. H. 1875 In re SETTLEMENT TRUSTS. further trust to transfer, pay, and make over the said moiety whereof there should be no such appointment "unto all and every the child or children of the said Elizabeth Hancock or Maria Orlebar, who should first happen to depart this life, and the issue ORLEBAR'S of such of their said children as might be then dead (such issue to take the share of his or her parent), equally between and among them (if more than one), share and share alike, and if there should happen to be but one such child, then the whole to such only child, the share or shares of such of them as should be a son or sons to be transferred and paid to him or them at his or their age or respective ages of twenty-one years, and the share or shares of such of them as should be a daughter or daughters to be transferred and paid to her or them at her or their age or respective ages of twenty-one years or days of marriage, which should first happen. And it was thereby declared that if any such child being a son should die under the age of twenty-one years without leaving lawful issue, and if any such child being a daughter should die under that age and unmarried," then in default of and subject to any appointment, the share of each such son or daughter so dying should "accrue to the survivor or survivors, and other or others of the same children, and the issue of such of them as might be dead, having first acquired a vested interest in their respective original shares thereof, and be equally divided between such survivors or others of them, and the issue of such of them as might be dead as aforesaid (if more than one), share and share alike, and the same should become vested, and transferable, and payable at such respective ages, days, and times as were thereby provided and declared touching his, her, or their original share or shares, and that such benefit of survivorship or accruer should extend as well to the surviving or accruing as to the original shares. And from and immediately after the decease of the survivor of them the said Elizabeth Hancock and Maria Orlebar leaving a child or children, or the issue of any such child or children living at her death," the trustees were directed to stand possessed of the other moiety of the trust premises upon trusts for the benefit of the child, children, or issue of the survivor of Elizabeth Hancock and Maria Orlebar similar to those declared concerning the first moiety thereof. And it was declared that if VOL. XX. 3 D 2 V.-C. H. 1875 In re SETTLEMENT TRUSTS. either of them the said Elizabeth Hancock and Maria Orlebar should die without leaving any child or children or any issue of such child or children who should live to attain a vested interest ORLEBAR'S in the fund in manner thereinbefore mentioned, then the trustees were thereby directed to stand possessed of the annual proceeds of such moiety of the fund of her whose issue should so fail in manner aforesaid for the benefit of the survivor of them the said Elizabeth Hancock and Maria Orlebar during her life, and after the decease of such survivor to stand possessed of the principal thereof for the benefit of the child or children of such survivor and his, her, or their issue upon the same trusts as were thereinbefore declared concerning the first-mentioned moiety of the trust fund. There was no issue of the marriage of W. A. and M. C. Orlebar, and they were both dead, M. C. Orlebar having died in March, 1859. Elizabeth Hancock died on the 17th of November, 1861, leaving Maria Orlebar her surviving, and having had six children, viz., the five Petitioners, all of whom had attained twenty-one, or, being daughters, had married, and one son, who had died in her lifetime. The deceased son, Major Fitzharding William Louquet Hancock, attained twenty-one, and died on the 26th of January, 1858, without issue, having by his will bequeathed all his personal estate to his widow, and appointed her sole executrix. Mrs. M. C. Orlebar had exercised her power of appointment in respect of a portion of the moiety settled on Mrs. Hancock and her children; and the surviving trustee of the settlement having paid into Court, under the Trustee Relief Act, a sum of £662 11s. 9d., as representing the share to which Major Hancock would have been entitled in the unappointed residue in case he had been living at the death of his mother, this Petition was presented by his five surviving brothers and sisters for payment out to them of the sum paid in, in order to raise the question whether it was divisible amongst them, or passed to his legal personal representative. Mr. Morgan, Q.C., and Mr. E. Beaumont, for the Petitioners:- V.-C. H. 1875 In re of the children of the marriage of Mr. and Mrs. Orlebar, that in default of appointment every child attaining twenty-one, or being a daughter marrying, shall take a vested interest in the trust fund, notwithstanding his or her death in the lifetime of Mrs. Orlebar, SETTLEMENT the tenant for life; but there is no such provision as to a child of TRUSTS. Mrs. Hancock attaining twenty-one, and dying in her lifetime. This is not a case in which the word "leaving" can be construed as "having," or "having had." By the terms of the settlement the limitations in favour of Mrs. Hancock's children cannot take effect unless she dies leaving children living at her death, and the whole disposition imports contingency as to the objects to take. The case is within the authority of Bythesea v. Bythesea (1), although that case goes further, inasmuch as in it there was actually an express declaration as to vesting at twenty-one, which there is only to be found with regard to the settlor's children. Woodcock v. Duke of Dorset (2), which was referred to in Bythesea v. Bythesea, is distinguishable from the present case. The limitations of the settlement in Woodcock v. Duke of Dorset are not correctly given in the report of that case in 3 Brown, but will bɔ found in a note to Howgrave v. Cartier (3), the actual words being to "the children," not to "such child or children," and there the event was answered by the survivor leaving one child living; and, moreover, there was no provision, as in this case, for the issue of a child who dies in the lifetime of the tenant for life. These distinctions make Woodcock v. Duke of Dorset an authority in our favour. If this were the case of a will, it is clear that no child predeceasing the parent could take: Bythesea v. Bythesea; Wilson v. Mount (4); Sheffield v. Kennett (5); In re Watson's "Trusts (6); and precisely the same principles apply. The condition that each child must outlive the tenant for life is part of the gift itself. The recent case of Jeyes v. Savage (7), which arose upon a settlement the terms of which are similar in many respects to this, is also an authority in our favour. It is also observable in this case, that when the settlors are ORLEBAR'S |