1898 In re THE ESTATE OF PATRICK O'BRIEN, DECEASED. an absolute gift, but leaves it lawfully cut down to a life estate by one of the declarations to which the original gift is made subject. Other declarations are contained in clause 9, which, it is submitted, are also perfectly lawful, and apply to the gift to the daughters-namely, the clause carrying it to their Madden, C.J. separate use and restraining anticipation, and the clause giving them powers of appointment and the gift over in default of appointment. It is submitted that the decision in Trustees Executors and Agency Company Limitel v. Jenner is not good law, because the restraint on anticipation and power of appointment, though contained in the clause making a too remote gift to grandchildren, were still perfectly good. It was not argued on behalf of those interested in relying on it, and though mentioned in his reply by counsel for the plaintiff company, which was trustee only, A'Beckett, J., did not deal with it. In the earlier argument His Honor himself mentioned the clause restraining anticipation, and was given to understand that the authorities decided that such a clause would also go, and perhaps His Honor was misled by that. The authorities decide that it does not go in such a case as this-that such a clause is absolutely good unless its operation violates the rule against perpetuities: Herbert v. Webster (e); Carver v. Bowles (ƒ); In re Ridley (g); 1 Jarman on Wills (5th ed.), 265. If some part of clause 9 be still good, it is submitted that so much of it should be held to be good, including the cutting down of the gift to a life estate, as will carry out the testator's intention without offending against the law. It is also submitted that clause 7 of this will is not the clause which carves out the interests of the various beneficiaries. It merely describes the shares with which the testator subsequently intends to deal. Clearly, this is so as to Thomas Cuthbert O'Brien's share, the words" subject to the trusts hereinafter declared," in clause 7, meaning "you will find how I intend this to go later in the will." If those words in relation to his share have that meaning, it is submitted that the similar words as to the daughters' shares, "subject to the declaration hereinafter contained," have (e) [1880] 15 Ch. D. 610. (f) [1831] 2 Russ. & My. 301. (g) [1879] 11 Ch. D. 645. 1898 In re THE ESTATE OF PATRICK O'BRIEN, DECEASED. a similar meaning. The insertion of the words as to Thomas Cuthbert O'Brien's share, in clause 7, distinguish this case from Jenner's Case, even if it be good law. There is also this distinction between this case and Jenner's Cuse: there the later clause referred to the share of daughters bequeathed" by the earlier clause; here the reference Madden, C.J. in the later clause is to the share, without saying it was bequeathed by the earlier clause. It is also submitted that the maintenance clause of this will shows the testator's intention not to give his daughters an absolute interest. It is further submitted that the gift over is divisible into different parts, some of which at the death of the testator would, in certain events, not offend against the law of perpetuities, and which if those events occurred would be good : Watson v. Young (h), extending the doctrine of Evers v. Challis (i), but cut down again in Re Bence (k). If clause 9 can in any event be good, the Court cannot hold that it would be of no avail in curtailing clause 7. Guest for the defendant Victor Prytz-I cannot argue that the gift over to Mrs. Prytz's children is not bad, and as to the corpus, I adopt the arguments of plaintiff's counsel, and submit that the case so far as corpus is concerned is governed by Jenner's Case. I, however, submit that the gift for their maintenance in clause 12 is a good gift of the annual income to the children of Mrs. Prytz until they attain 25, or being daughters marry. The gift of the income does not offend against the law of perpetuities. [MADDEN, C.J. Does it not follow from the gift over to them which does so offend ?] It is submitted that it is separable. It may be argued against me that it is referred to as the share to which a child is entitled in expectancy, but I submit that that is merely descriptive, and is used to point out the fund from which the income is to be obtained. The testator certainly thought he was giving them the corpus, but the fact that he has failed to do so legally is no reason for depriving them of the income which he has legally (h) [1885] 28 Ch. D. 436. (i) [1859] 7 H.L.C. 531. (k) [1891] 3 Ch. 242. 1898 In re THE ESTATE OF PATRICK given them. In several cases like this the Courts in England have held that the void gift over is separable from the trust for the maintenance of those who, if the gift was good, would be entitled to the corpus, and that the trust for maintenance therefore takes effect: In re Watson (l); Gooding v. Read (m); Madden, C.J. In re Wise (n). The Court will always endeavour to separate what is good from what is bad in gifts of this nature: In re Gage (o). O'BRIEN, DECEASED. August 9. Irvine-In view of this new argument of Mr. Guest's, the company for which I appear is now representing adverse interests. As trustee of the late Mr. O'Brien's will it has continued to apply the income to his grandchildren's maintenance, and would therefore desire to support Mr. Guest's argument, which would justify them in having so done, but as administrator of Mrs. Prytz it should argue that she took absolutely. If this question had been expressly raised upon the summons, the company would not have appeared as administrator of Mrs. Prytz. [MADDEN, C.J. I see no objection to amending the summons to raise the question. I apprehend it only means appointing another counsel to represent the company as administrator of Mrs. Prytz. I will adjourn till to-morrow, and that course can be pursued if the parties think fit.] Agg now appeared for the company as administrator of Mrs. Prytz, and adopted Mr. Topp's arguments-I ask the Court to allow me, if necessary, to address it on the maintenance question when Mr. Topp has finished his reply. [MADDEN, C.J. Very well.] - Topp in reply-The restraint on anticipation and power of appointment is inseparably mixed up with the gift over. Both existed in Jenner's Case, and both were held to be bad. A'Beckett, J., could not have omitted to notice them, for they were brought under his attention by Mr. Agg immediately 1898 In re THE ESTATE OF PATRICK O'BRIEN, DECEASED. before he gave his decision. The case of In re Bence (p), cited The reference in clause 7 to the Madden, C.J. Agg-The maintenance clause is the everyday clause giving maintenance out of an expectant or contingent interest, and is good only so long as there is a chance of the expectancy or contingency happening. If it ceases or if it happens the maintenance clause is at an end. In the cases cited contra the maintenance provision was entirely distinct from the gift of the corpus. Cur. adv. vult. MADDEN, C.J. Originating summons by which it was sought to have an interpretation of a certain clause in the will of the late Mr. Patrick O'Brien. The will is divided into paragraphs. By paragraph 7 the testator declares that the trustee or trustees shall (subject to an annuity to his wife) "hold the said trust premises in trust for such of my children and such children of (p) [1891] 3 Ch. 242, August 11. 1898 In re THE ESTATE OF PATRICK O'BRIEN, DECEASED. any child of mine having pre-deceased me as being male shall attain the age of 25 years (but subject as to the share of my son Thomas Cuthbert O'Brien to the trusts hereinafter declared concerning the same) or being a female shall attain the age of 25 years or shall before attaining that age marry with the consent Madden, C.J. of the said trustee or trustees but subject to the declaration next hereinafter contained and if there be more than one such child in equal shares per stirpes so that my children taking under this trust shall take in equal shares and the child or children taking under this trust of any child of mine having pre-deceased me shall take and if more than one equally between them the share which his her or their parent would have taken had he or she survived me." Paragraph 8 is the next paragraph after paragraph 7 of course. But it is peculiar that the testator in paragraph 7 subjects his general disposition of the share in the case of Thomas Cuthbert O'Brien to the "trusts hereinafter declared concerning the same," and as to the shares of any female "subject to the declaration next hereinafter contained." So that if one were to read the will in the ordinary way the paragraph relating to females should be number 8, and not as it is, number 9; but I think it was intended that the words "hereinafter contained" in relation to Thomas Cuthbert O'Brien meant "next hereinafter" or paragraph 8, and that "next hereinafter contained in relation to the females meant the next after that. That was what was running in the mind of the person who drew the will. It is perfectly certain that that was the intention, because paragraph 8 relates solely to Thomas Cuthbert O'Brien's share, and paragraph 9 to the shares of females. By paragraph 9 he declared "that the share of every daughter of mine in the said trust premises shall be held by the said trustee or trustees upon trust during the life of such daughter to pay the interest of her said share into her proper hands for her separate use independent of any husband and so that such daughter shall not have power to deprive herself of the same or any part thereof by any sale mortgage charge or otherwise by way of anticipation. And after the death of any such daughter in trust for the child and if more than one the children of such daughter who being a son or sons shall attain the age of twenty-five years |