In re SEYMOUR'S TRUSTS. [ *479 ] administrators of such as should be then dead, leaving any child or children living at the son's death, created in the latter event such an interest in the grandchildren as would pass to their assignees in bankruptcy. It must be observed, that there is a limitation to every grandchild for his own benefit if living; but if he predeceased the son, leaving children who survived him, then for the benefit of his estate. I can make no distinction between the two portions of the gift. It is a bequest to grandchildren in either of two events-one that they should survive the son, the other that they should die in his lifetime, leaving children who should survive him. If the words are followed precisely, the effect is the same, because the limitation to executors or administrators makes the gift part of the personal estate of the deceased grandchild. On surviving the testator, each grandchild acquired an interest *in the contingent gift, even though his might not be the hands to receive it. As to the second point, therefore, I think it clear that this is such an interest as would pass under the 141st section of the Bankruptcy Act. Although I have no doubt on the point, there are some observations in Holloway v. Clarkson (1), which are so pertinent, that I think it desirable to refer to them. In that case, it is true there was a preceding life interest given to the persons whose executors or administrators were the object of the gift in question; but the VICE-CHANCELLOR, in commenting on this part of the case, said, "In deciding this question, the Court must lay wholly out of consideration the circumstance that a life estate is given, in the first instance, to the party to whose representatives the corpus is afterwards given." He puts that fact aside, therefore, and then he goes on to say, "There is no analogy between real and personal estate in this particular: but still, assuming that the executor or administrator is to take, and that he takes as executor or administrator, and as trustee only, it would seem to follow, that the party whose estate is represented must have a disposing power over this as over other parts of his estate, notwithstanding the peculiar manner in which it becomes part of his estate." This is exactly what I hold in the present case. The interest in question, therefore, passed to the assignees, through whom it has come to the petitioner; and he is therefore entitled to an order according to the prayer of his petition. (1) 62 R. R. 217 (2 Hare, 521). EX PARTE STEARS. IN RE THE SOUTH ESSEX GAS LIGHT AND COKE COMPANY. (Johnson, 480-486; S. C. 29 L. J. Ch. 43; 7 W. R. 665.) A contract between a Company and a person who acted as a director, whether legally appointed or not, was within the prohibition of 7 & 8 Vict. c. 110, s. 29. [As to the repeal of that Act see Ernest v. Nicholls, 108 R. R. 175, n., and see a note to that case (p. 178) where the section in question is set out.-O. A. S.] HAMER v. TILSLEY. (Johnson, 486-490; S. C. 29 L. J. Ch. 32; 5 Jur. N. S. 1344; 1 L. T. N. S. 54; 8 W. R. 20.) Under the old law of husband and wife the latter could not (except by acknowledged deed) create any charge or lien upon her real estate in favour of her husband to secure the repayment to him of money expended by him at her request upon necessary repairs thereon. MOSS v. DUNLOP. (Johnson, 490-495.) A testator devised and bequeathed all his real and personal estate upon trust to convert and invest, and out of the income to pay various annuities, and to apply the residue which should be more than sufficient to provide for the annuities, and also such sums as should become available by the determination of the said annuities, in such manner as testator should appoint; and, failing such appointment, to pay the same to my own next of kin for the time being," equally among them share and share alike, declaring hereby that my said trustees shall be the sole judges as to whether the whole, and what parts, of my said means, estate, and effects is and shall be necessary for the purposes aforesaid, or any of them: Held, that the next of kin at the testator's death were entitled to the residue, including both the original surplus and the sums set free by the dropping of annuities. WILLIAM DUNLOP, by his will, dated the 2nd of February, 1850, devised and bequeathed all his real and personal estate to trustees upon trust to convert and invest in Government securities, and out of the dividends and interest to pay the annuities mentioned in the following clause: "To my brother John James Dunlop, of New City Chambers, Bishopsgate Street Within, in the city of London, the sum of 1007., during all the days of his life; and after his death, and in the event of his marrying, the like sum of 100l. to and among his children, if any he have, per capita, until they shall respectively, if males, attain the age of twenty-one years, and if females, be married; to my sister Mrs. Elizabeth Dunlop, or Rankine, wife of Robert Rankine, *the sum of 50l. per annum. during all the days of her life, and after her death the like sum of 50l. to and among her children by her marriage with the said Robert Rankine, per capita, until they shall respectively, if males, attain the age of twenty-one years, and if 1859. July, 20 1859. Nov. 15. 1859. Nov. 19. WOOD, V.-C. [490] [491] Moss v. DUNLOP. [492] females, be married; to my sister Mrs. Margaret Dunlop or Davidson, widow of Alexander Davidson, the sum of 50l. per annum during all the days of her life, and after her death the like sum of 50l. to her son by her marriage with the said Alexander Davidson, until he shall attain the age of twenty-one years; and to my sister Mrs. Jane Dunlop or Martine, wife of the Rev. John M. Martine, the sum of 50l. per annum during all the days of her life, and after her death the like sum of 50l. to her said husband during all the days of his life, and after his death to and among her children by her present marriage, per capita, if she any have, until they shall respectively, if males, attain the age of twenty-one years, and if females, be married." The residuary gift was as follows: "And upon further trust to dispose of and apply the remainder of my said means, estate, and effects, in the event of the said residue being more than sufficient to enable my said trustees to pay, satisfy, and provide for the annuities hereby granted, and to carry into effect the other purposes hereof, and also such sum or sums of money as may arise or become available from or by reason of the determination of any of the said annuities, in such manner as I may appoint by any writing under my hand, although the said writing may be informal and deficient in the usual formalities required by law, and failing such appointment to pay the same. to my own next of kin for the time being equally among them, share and share alike; declaring hereby, that my said trustees shall be the sole judges as to whether the whole and what parts of my said means, estate, and effects is and shall be necessary for the purposes hereof or any of them." The will concluded with the clause: "And I hereby reserve my own life rent of my said means, estate, and effects, and full power at any time to alter and revoke these presents, in whole or in part, and to dispose of my said means, estate, and effects as to me may seem proper. The testator died in November, 1851, and the trustees invested a sufficient sum to answer the annuities, and had a surplus in their hands. The testator made no appointment of the residue under the power reserved. This bill was filed by the trustees for administration of the estate; and an order for administration was made, and also a certificate of the chief clerk, dated 18th of December, 1855, finding that the next of kin at testator's death were J. J. Dunlop, Jane wife of M. Martine, Elizabeth wife of R. Rankine, and Margaret Davidson, widow, since deceased, of whose estate her son Alexander Davidson was administrator. Alexander Davidson attained his majority on A the 11th of September, 1859, whereby his annuity ceased. Mr. Willcock, Q.C., and Mr. Langley, for Alexander The primâ facie meaning of next of kin is next of kin at the time of the death; and though the words "for the time. being" are added, these are controlled by the plain intention that the whole surplus, whenever it fell in, should go to the same persons. And it is observable, that the testator *does not use the words from time to time:" Wharton v. Barker (1), Spink v. Lewis (2), Bird v. Luckie (3). Mr. Laxton, of the Common Law Bar, for the trustees, also petitioners. Mr. H. Palmer, Q.C., and Mr. Dymond, for some of the next of kin at death. Mr. C. Hall in the same interest. VICE-CHANCELLOR SIR W. PAGE WOOD: I think it is open to me to say, that there is no such clear, express, and positive necessity for construing the words used as referring to a future time, as to overcome the general rule that the words next of kin mean next of kin at the death. The phrase employed is not quite so strong as if it had been next of kin according to the statute; but it does not require me to depart from the primâ facie construction. I do not overlook the argument which may be founded on the words "for the time being," that, to refer next of kin to the period of death is, in effect, to reduce the words " for the time being" to a nullity. But this is never a conclusive argument. It is a matter of constant occurrence to find in an instrument more words than are necessary; and in this will there are many examples of the same kind. For instance, the testator says, that the will is not to affect his own life interest, and he is careful to reserve to himself a power of revocation. But for these words "for the time being," it would be perfectly clear that the whole fund was meant to go together, both that which consisted of residue. divisible forthwith, and that which was to result from the (1) 116 R. R. 417 (4 K. & J. 483). (2) 3 Br. C. C. 355. (3) 85 R. R. 297 (8 Hare, 301). Moss v. DUNLOP. [ *495 ] dropping of the annuities. The scheme of the will is this: First, the testator directs a fund to be set apart for the annuities; then what may remain of the estate, in the event of the residue being more than sufficient to provide for the annuities, together with the sums which may become available by the determination of the annuities, is to be applied as the testator may appoint, and failing such appointment the trustees are to pay the same to his next of kin for the time being. These words "the same " must mean both the surplus and the money which may fall in by the determination of the annuities. The argument in favour of the next of kin at the time of the falling in of the annuity is slightly advanced by the direction that the trustees are to be the sole judges of what should be deemed requisite to provide for the annuities. It looks somewhat as if the testator meant to say: "I will fix the time of distribution, and then the trustees may ascertain at once what surplus there will be, and may ascertain, as occasion shall arise, the amount set free by the expiration of the annuities." Reading the will in this way, the words "for the time being would refer to the times when the trustees should ascertain the successive sums available for distribution. But, on the other hand, it is to be observed, that there are no such words as "from time to time" in the direction to pay; and I think it is not irrational to read the words "for the time being" as referring, in the testator's mind, to the language in which he speaks of an appointment by himself, and to the clause in which he reserves a power of revocation and new appointment. He may be taken to have meant this: "When I die, if you find that I have made no appointment, then you are to pay the fund to the next of kin." The words will, in this view, mean the time when it is ascertained that there is no appointment-i.e., the time of death. There are no words here so strong as the phrase "then be," in Wharton v. Barker. Nor is there any question here, as there was in *Spink v. Lewis, of survivorship among the next of kin. It would be an extremely inconvenient construction to constitute a fresh class of next of kin, to be ascertained as each of these numerous annuities fell in; and having regard to the absence of such words as "from time to time" in the direction to pay, and to the inference from which the words "to pay the same" treat the whole as a single fund, to go altogether in one direction, I am of opinion, that the true construction is, that the next of kin at the testator's death are entitled to the whole residuary estate, including both the surplus after providing for the annuities and the sums set free from time to time by their determination. |