wick v. Doleman (i), an early and leading case on this subject, an appointment in favour of a second son made under a power to appoint a specified sum for younger children's portions, was considered to have failed upon the second son becoming eldest son by the death of his elder brother, and a subsequent appointment of the same sum in favour of a daughter was supported. So where, upon the second marriage of the settlor, a term was limited upon trust to raise a specified sum for the portions of the three younger children of his former marriage (by name), to vest in the two sons at twenty-one, and in the daughter at twenty-one or marriage, with benefit of survivorship, it was held that the second son, who by the death of the eldest son in the

Eng. & Ir. Ap. 52 et seq. The principle referred to in the text furnishes a rule of interpretation according to the presumed intention of the settlor, by means of which the construction may often materially deviate from what it would be if proceeding on the mere language of the instrument, but the question is still one of intention, so that the words may be sufficiently strong to rebut the ordinary presumption, as in Incledon v. Northcote, 3 Atk. 438, in which a charge upon the estate being devised equally among all the children, the eldest son who

took the estate was held en-
titled to participate in the
charge;
and see Wood v.
Wood, L. R. 4 Eq. 48 (a case,
however, not of portions, but
of a trust by will of a resi-
duary fund for the testator's
grandchildren, as to which
see infra, pp. 421 et seq.), in
which the eldest son was
excluded by name, and the
doctrine in question was held
not to apply. As to the ex-
clusion of the eldest son by
name, see Sug. Pow. 8th ed.
679.

(i) 2 Vern. 528. See also Broadmead v. Wood, 1 Bro. C. C. 77.

father's lifetime succeeded to the estate, was not entitled to a share in the sum raiseable for portions, but that the whole fund was divisible between the two other children (k); and where there was a trust for all the children except the eldest son, a younger son becoming the eldest was excluded (); and under a like trust, a daughter, who by the death of her brother had become the only child and entitled to the next remainder in tail, was excluded, though at her marriage (when the portion would have vested) the parents were living, and her remainder would have been defeasible by the birth of a son, and partially so by the birth of an after-born daughter (m). On the other hand, under a provi

(k) Savage v. Carroll, 1 Ball & Beat. 265.

(1) Lord Teynham v. Webb, 2 Ves. Sen. 197. In this case the provision for the children was voluntary, and made by the maternal grandmother, but under the circumstances it was held, that it must be construed in the same manner as a provision of the like description in a marriage settlement; and that the grandmother providing for the younger children of her daughter was acting as a parent. It does not appear how the estate charged with the portions was settled, but the eldest son was obviously regarded as such with reference

to the father's estate, and not with reference to the estate charged with the portions.

(m) Simpson v. Frew, 5 Ir. Ch. Rep. 517. In this case, Lord Chancellor Brady remarked that as there was a limitation to daughters, the words "other than " [an eldest or only son] had the same effect which was attributed to "besides" in Walcott v. Bloomfield (cited, p. 407 supra, note), i.e. that of making the portions raiseable in the event only of there being as well a child succeeding to the estate as another or other child or children.

What amounts
to accession to
estate so as

to exclude right

to portion.

sion for younger children, an eldest (n) or only daughter (o), and an eldest son not taking the estate (p), have been admitted to participate. So also an eldest son who dies before the time of raising the portions without having come into the possession and enjoyment of the estate, though at his Elder son succeeding decease he had acquired a title for life or in tail in as not to share port remainder, has been admitted to a share of the portions as a younger child; as in Ellison v. Thomas (q), where the portions were directed to be raised on the decease of the survivor of A. and B. for the children of C., "other than an eldest or only son for the time being entitled to the estate in possession or

portions. Reid Hoare 24CD363

(n) Beale v. Beale, 1 P. Wms. 244.

(0) Butler v. Duncomb, 1 P. Wms. 448.

(p) Duke v. Doidge, 2 Ves. Sen. 203, note. In this case Lord Hardwicke said, that every child except the heir is considered in equity as a younger, and that eldership not carrying the estate along with it, is considered not such an eldership as shall exclude by virtue of such clauses; and it would be hard that the right of eldership should be taken away, and yet not have the benefit of it as a younger child.

(q) 2 Dr. & Sm. 111, 1 De G. J. & S. 18. The words of exclusion were considered in the

court below to be capable of repeated operation, so as to exclude every son who at any time before the raising of the portions should answer the description of the son entitled to the estate; but on the appeal it was held that the time for raising the portions was the only period which could be looked to for the purpose of ascertaining the character of eldest son. Considerable reliance was placed on the appeal on the words "for the time being in the clause of exclusion, but in Davies v. Huguenin (infra), the case was treated as an authority of general application.

remainder expectant on the decease of the survivor of B. and C.," and the second son, having succeeded to the estate (which was settled after the life estates on the sons successively in tail) by the death without issue of the eldest son, was held to be excluded; and it was also held on the appeal (reversing on this point the decision of Kindersley, V.C.) that the representatives of the eldest son, who had attained twenty-one, were entitled to share; and a similar decision on both points was arrived at in Davies v. Huguenin (r), where the trust was for the children "other than an eldest or only son. On the other hand, where the eldest son, whether he survives the period of distribution or not, has previously joined with the tenant for life of the estate in barring the entail so as in effect to obtain the

(r) 1 Hem. & Mil. 730. The case of Gray v. The Earl of Limerick, 2 De G. & Sm. 370, in which under similar circumstances the representatives of the eldest son were excluded from participation, appears to be in effect overruled by the two last mentioned cases; but it is conceived that such decisions as those in Ellison v. Thomas and Davies v. Huguenin, although they may legitimately result from the presumptions of law applicable to the subject, are opposed to convenience and

to what is usually the intention, namely, that a portion once vested in a younger son is not afterwards to be divested by the portionist becoming eldest son before it is payable; and that, on the other hand, an eldest son who is once excluded by acquiring a title to the estate, although only in remainder, is not afterwards to be admitted to a portion by reason of his death without issue before succeeding to the possession and before the portions are pay

able.

full enjoyment of the estate, the clause of exclusion would in general apply; as in Stanhope v. Collingwood (s), where the trust was for the children, "other than an eldest son for the time being entitled [under a will] to an estate in tail male in possession or remainder expectant on the death of A.," who was tenant for life of the estate, with remainder to his first and other sons in tail; and the eldest son having joined with his father in barring the entail and making a resettlement, was held nevertheless by the House of Lords (reversing the decision of the Court below) to be within the spirit, if not the letter, of the words of exclusion.

(s) L. R. 4 Eq. 286, 4 Eng. & Ir. Ap. 43 (cited supra, p. 376 note (f), with reference to the distinction between questions as to the shifting of the second estate, on accession to the family estate, and questions on the accruer of portions on a younger child succeeding to the estate). See, however, Wyndham v. Fane, 11 Hare, 287, in which the testator's residuary estate was made divisible among the children of his daughter, except any who should, under his will, be entitled in possession to the settled estate; and it was held, that the daughter's eldest daughter, who had become first tenant in tail

in remainder, and concurred in a recovery and resettlement, but afterwards died in the lifetime of the tenant for life, was entitled to a share of the residuary estate. Upon the question, what is such an acquisition of title to the estate as to exclude from a portion, reference may also be made to Sing v. Leslie, 2 Hem. & Mil. 68, in which the acquisition of the estate by descent, and not under the instrument referred to in the trust of the portions, was held not to disentitle the son to a portion; and to Johnson v. Foulds, L. R. 5 Eq. 268, where the succession of the only son to the estate was