IN RE CORBETT'S TRUSTS. (Johnson, 591–600; S. C. 29 L. J. Ch. 458; 6 Jur. N. S. 339; 8 W. R. 257.) A legacy in trust for A., and to pay the income to her, with limitations over to her issue, and to the survivors of A., B., and C., and their issue: Held, to vest absolutely in A., on failure of the subsequent limitations (1). 66 On a gift to a class and their issue, and in case of the death of one without leaving issue to the survivors or survivor and their issue: Held, that the word survivors" could not be read "others," merely on the ground of the improbability of the testator intending the interests of the issue to depend on the period of their parents' death (2). THIS was a petition for payment out of Court of a fund paid in by the trustees of the will of W. Corbett, who died in 1803. The testator bequeathed 3,000l. to trustees: as to 1,000l. upon trusts in favour of his daughter Elizabeth, identical with the trusts hereinafter stated as to Sarah Dallett; as to 1,000l. on similar trusts for his daughter Mary; and then proceeded as follows: "And as to 1,000l. principal, remainder of the said 3,000l., and the interest and dividends arising from the said 1,000l., in trust for my niece Sarah Dallett, and to pay and apply the interest and dividends thereof from time to time to and for her benefit, until she shall attain her age of twenty-one years. or marriage, which shall first happen; and upon her attaining that age or marriage, I direct one moiety of the said principal sum of 1,000l., or the funds or securities whereon the same shall be then invested, to be paid or assigned to my said niece, to and for her own absolute use and benefit; and as to the other moiety thereof, and the interest and dividends thence arising from and after my said niece attaining her said age or marriage, I direct the interest and dividends, as the same shall from time to time arise, to be paid into the proper hands of my said niece during her natural life, to and for her own peculiar use and benefit only, and for which her own receipt alone shall from time to time be a sufficient discharge, it being my will that the same shall not be subjected to the power or control of any husband, nor shall she have power to alienate, dispose of, or anticipate the same or any part thereof; and from and after the decease of my said niece leaving a child or children, I order and direct my said executors to stand possessed of and interested in the principal of the said last-mentioned moiety, and the funds and securities whereon the same *shall be then invested, and all future interest and dividends thence arising, in trust for all and every the child and children of my said niece (1) Marriott v. Abell (1869) L. R. 7 Eq. 478, 38 L. J. Ch. 451, 20 L. T. 690; Kellett v. Kellett (1868) L. R. 3 H. L. 160. (2) See numerous csaes on this point collected in King v. Frost (1890) 15 App. Cas. 548, 63 L. T. 422; and see Harrison v. Harrison [1901] 2 Ch. 136, 1850. Feb. 13, 14, WOOD, V.-C. [591] [ *592 ] In re CORBETT'S TRUSTS. [593] Sarah Dallett; such children, if more than one, to be entitled in equal shares, and to pay and assign the same accordingly. Provided always, that if any or either of my said daughters and niece shall die before attaining the age of twenty-one and unmarried, then it is my will that the sum or sums, as well original as accruing, of her or them so dying, shall go and accrue unto the survivor or survivors, such survivors, if more than one, to be entitled equally. And I order and direct my said executors to stand possessed of and interested in such sum and sums, and all future interest and dividends thereof, upon trust for the survivors and the survivor of my said daughters and niece accordingly, in such manner nevertheless, and under such restrictions in every respect, as are herein before prescribed or directed with regard to the original sums, and the interest and dividends thereof. Provided also, that, in case of the death of any or either of my said daughters or niece after attaining the age of twenty-one years without leaving a child or children, then it is my will that the moiety or moieties herein before reserved for the benefit of the child or children of or them so dying shall from thenceforth remain vested in my said executors, as to the interest and dividends thence arising, in trust for the peculiar use and benefit of the survivors and survivor during their or her natural lives or life, such survivors, if more than one, to be entitled equally; and as to the principal in trust for the child or children of such survivor and survivors, in such manner nevertheless, and under such restrictions in every respect, as are herein before prescribed with regard to the original reserved moieties, and the interest and dividends thereof; and I further declare it to be my will that the surviving issue, if any, of any child or children of any or either of my said daughters or niece *shall stand in the place of the deceased parent or parents of such issue, and be entitled to such share and interest as such parent or parents would have been entitled to if living at the decease of such my daughter or daughters or niece." The residuary gift was as follows: “And all the rest, residue, and remainder of my estate, property, and effects, whatsoever and wheresoever, I direct my executors to put the same out at interest in some one of the Government Funds, and the interest and produce thereof I give and bequeath in the manner following, that is to say: Unto my said niece, Sarah Dallett, one fourth part thereof, and the remaining three fourth parts thereof I do hereby give and bequeath unto my said two daughters, Elizabeth and Mary, in equal shares and proportions, to and for the sole and peculiar use and benefit of them the said Sarah Dallett and my said two daughters, Elizabeth and Mary, respectively, and for which their respective receipts alone shall be sufficient discharges; it being my will that the same shall not be subject to the power or control of any husband they may respectively have, nor shall they have. power to alienate, dispose of, or anticipate the same or any part thereof; and after the decease of my said daughters and niece Sarah Dallett, or either of them, leaving a child or children, I hereby declare that my said executors shall stand possessed of and interested in the principal of such share and proportion belonging to either of my said daughters or niece so dying, and the funds and securities whereon the same shall be then invested, and all future interest and dividends thence arising, in trust for all and every the child and children of such of my said daughters or niece so dying, such children, if more than one, to be entitled in equal shares, and if but one, then the whole to go and belong to such only child, and I direct my said executors to pay and assign the same *accordingly; but in case of the decease of any or either of my said daughters or niece unmarried or without issue, then I give and bequeath the share of her or them so dying unto the aforesaid survivors or survivor of them my said niece, equally to be divided between them: Provided always, that, if there shall be any deficiency in my property, so that the same may not extend to answer and pay all my pecuniary legacies in full, then I direct that the sums hereinbefore given to or in trust for my said wife, daughters, and niece Sarah Dallett, and all the several other annuities herein before given, shall abate in proportion." The testator's daughter Elizabeth died in 1827, leaving several children; and his daughter Mary, in 1837, also leaving several children. Sarah Dallett died in 1859, without having been married: and the unpaid moiety of the bequest of 1,000l., and one-fourth of the residue, were paid into Court. Mr. Rolt, Q.C., and Mr. Prendergast, for the executors of Sarah Dallett, claimed the 500l. and the residue absolutely. (They cited Lassence v. Tierney (1), Jackson v. Noble (2).) Mr. Hemming, for grandchildren of the testator, who were residuary legatees under Sarah Dallett's will, supported the same view, and cited Crowder v. Stone (3), Hulme v. Hulme (4), Campbell v. Brownrigg (5), Ferguson v. Dunbar (6), and Davidson v. Dallas (7); and distinguished Eyre v. Marsden (8). Sir H. Cairns, Q.C., and Mr. (1) 84 R. R. 158 (1 Mac. & G. 551). Dawney, for assignees of the (6) 3 Br. C. C. 468, n. (7) 9 R. R. 350 (14 Ves. 576). In re CORBETT'S TRUSTS. [ *594 ] [595] In re CORBETT'S TRUSTS. Feb. 14. [ *596 ] husband of testator's daughter Mary, argued that "survivors " must be read "others," and that the gifts over took effect: Eyre v. Marsden, Hawkins v. Hamerton (1). Mr. Roupell, for children of one of the daughters, supported the same view. Mr. Ware, for the husband of testator's daughter Elizabeth, argued for an intestacy. Mr. Miller for the trustees. VICE-CHANCELLOR SIR W. PAGE WOOD: The questions on this petition arise upon the construction of a bequest of 1,000l., as to one moiety thereof, and of the residuary gift in the will of a Mr. Corbett. The trusts of the 1,000l. are declared by a clause which directs the trustees to hold the principal and dividends in trust for testator's niece, Sarah Dallett, and to pay the income to her until marriage; and then proceeds to indicate the disposition of the property, as to one moiety, in favour of Sarah Dallett and her issue, in the following terms: (His Honour read the clause as far as the limitations to children of Sarah Dallett.) It seems to me that if the will stopped there, the first trust for Sarah Dallett would be sufficient to bring the case within that class of authorities where gifts of this *kind, modified by subsequent limitations, have been treated as absolute gifts, subject only to such modifications; so that, on those subsequent limitations failing, the original gift remains in force. I think that would be so on the terms of the gift itself; but it becomes still more clear from the last clause in the will, where the testator speaks of "the sums hereinbefore given to or in trust for my daughters and niece," and directs that they shall abate in proportion with other legacies. This is a distinct indication that the testator considered the three sums of 1,000l. as absolutely given. If, therefore, the subsequent limitations have failed, the petitioners are entitled to the whole of the unpaid moiety of Sarah Dallett's 1,000l. (His Honour then read the limitations over in the gift of 1,000l. and the residuary clause.) The question as to both clauses is, whether the words "survivors or survivor" can be read "others or other; and I am bound to say, that the later authorities lean more strongly than the earlier ones to the strict construction of words; although, in cases where it is necessary to do so in order to render a will (1) 80 R. R. 105 (16 Sim. 410). 66 intelligible, or where a clear and necessary inference can bo drawn from the terms of the will, the Court will not hesitate to construe the words "survivors or survivor as others or other." But even the earlier authorities, especially Ferguson v. Dunbar, and a case which was not cited, Milsom v. Audry (1), are adverse to such a construction on a will *like the present. There are two classes of cases in which this construction has been adoptedone relating especially to realty, where there are limitations to members of a class for life, and then to their issue in tail, and in default of issue of any, then over to the survivors or survivor. In such a case, the words "survivors or survivor" are almost of necessity construed "others or other," on account of the extreme improbability of the testator contemplating the members of the original class as likely to be in existence at the time of an indefinite failure of issue of any of them. The other class of cases more nearly resemble the present. They are cases where there is a gift over on the death of one of the original class, for the benefit of the survivors and of their issue. It is certainly a strange intention to impute to a testator, to make his bounty to the issue depend on the accident of their parent surviving the person whose share is given over. But such a consideration alone will not justify the Court in construing the words "survivors or survivor" in any other than their natural sense. The authorities on this point are very numerous. Eyre v. Marsden, which was relied on in argument, really turned, both in Lord LANGDALE's judgment and in that of Lord COTTENHAM, upon the fact, that original gifts were made to a class of grandchildren, accompanied with a proviso that the issue of grandchildren who should die before the period of distribution should stand in the place of their parents. Then, on the death of any grandchild without issue, there was a gift over to the "survivors or survivor in the same manner as the original shares; and Lord COTTENHAM laid hold of the words "in the same manner," as a reason for importing into the gift of accruing shares the same proviso for issue of deceased grandchildren which was *annexed to the original gift. Still Lord COTTENHAM says, he should have had very great difficulty in coming to this conclusion, if it were necessary to consider the word "surviving as meaning "living at the time of the accruer taking place." That, of course, is a very different case from the present, where I find this peculiarity, that there is a provision for substituting the issue of deceased children of the daughters and niece for their parents, but no such provision for the issue of (1) 5 R. R. 102 (5 Ves. 465). R.R.-VOL. CXXIII. 17 In re CORBETT'S TRUSTS. [ *597 ] [ *598 ] |