C. A.

1910

Bowyer Nichols as such executor and also the said legacy of 1000l. given to him as aforesaid "—that is, as executor—“ and I appoint Harry Freeman executor of my will." If you read into the declaration" and for this purpose" that would give a clear and sufficient meaning, and in view of the decision of the Court FREEMAN. of Appeal in In re Percival (1), it may be legitimate to insert Kennedy L.J. those words. But the contention of the respondent's counsel

FREEMAN,

In re.

HOPE

v.

66

that the declaration was put in to deal with some question of
either duty or power as trustee cannot stand with the suggestion
of the foregoing purpose, which is the purpose of dealing with
the appointment as executor and the legacy given to the executor
as executor. It has been further suggested by counsel for the
respondent that if the declaration were read literally the substi-
tution of the name Harry Freeman for Bowyer Nichols might
possibly apply to a part of the will to which it certainly was not
intended to apply, namely, to the legacy to Mrs. Bowyer Nichols.
That cannot be so, because the words are the name of the said
Bowyer Nichols" and the said Bowyer Nichols is described
before as the person who was named in the will as executor. I
confess I feel great difficulty after all the argument in saying
that this clause can be explained merely as a reference to the
trusteeship under the will and that it was put in ex majori
cautela to prevent a difficulty arising after the change which was
made by the earlier part of the codicil, and some difficulty in
treating this as a clause which is intended to refer only to what
preceded. But in the similar case of In re Percival (1), which was
a decision of the Court of Appeal, that Court appears to have
found no such difficulty. The words there were "in all
respects," and I cannot, I confess, draw a clear distinction
between "in all respects" and "
" and "throughout." Further, my
brethren, who are much more versed in matters of construction
in documents of this kind, are quite clear in their view, and I
certainly should not be justified in dissenting.

Solicitors: Mackrell, Maton, Godlee & Quincey, for Trewhitt, Clarke & Robson, Sunderland; Corbould, Rigby & Co.

(1) 59 L. T. 21.

H. B. H.

In re MASON.
MASON v. MASON.

[1909 M. 1759.]

Will-Construction-Gift of Income to Daughter until Marriage-Gift over on
Marriage-Death of Daughter unmarried—Indefinite Gift of Income-
Absolute Gift-Determinable Life Interest.

A testatrix directed the trustees of her will to pay the income of her residuary estate to her daughter until she should marry and after her marriage to pay to her thereout a legacy of 3000l. and divide the balance between all her (the testatrix's) sons surviving her :—

Held, (1.) that the interest of the daughter in the residue under the direction to pay her the income was for her life or until her marriage; (2.) that the gift over to the sons took effect on the death of the daughter unmarried.

Rishton v. Cobb, (1839) 5 My. & Cr. 145, distinguished.

APPEAL from a decision of Joyce J.

Charlotte Mason by her will, dated July 29, 1893, appointed her sons Percy Mason, Walter Mason, and Dan Mason executors and trustees of her will, and, after making a bequest of plate, jewellery, and furniture to her daughter Alice Mason absolutely, and bequeathing certain pecuniary legacies, she devised and bequeathed to her said daughter all her estate and interest in a hotel known as the Bell Inn, Guildford. The testatrix then devised and bequeathed all the residue of her real and personal estate to her trustees upon trust to sell and to pay thereout her funeral and testamentary expenses and debts and to invest the balance as therein mentioned, and she declared that "my trustees. . . . shall pay the income of the said trust premises unto my said daughter Alice Mason until she shall marry and after her marriage shall pay to her the legacy or sum of three thousand pounds free of legacy duty out of the said trust premises and then divide the balance thereof equally between all my sons surviving me."

The testatrix died on January 17, 1897, leaving her surviving her daughter Alice and six sons, one of whom, Ellis Tapley Mason, died intestate in June of the same year.

C. A.

1910

April 8.

C. A.

1910

MASON, In re.

MASON

v.

MASON.

The next of kin of Ellis Tapley Mason were his five brothers and his sister Alice Mason and the defendant Mrs. Jean Sturt, a sister by the half blood. Alice Mason died on January 6, 1908, having by her will, dated July 31, 1901, devised and bequeathed her residuary real and personal estate to her five surviving brothers in equal shares.

An originating summons was taken out by the trustees and executors of the will of Charlotte Mason against their two remaining brothers and Mrs. Sturt for the determination of the question whether the direction in the will of the testatrix to pay the income of the residuary estate to her daughter Alice Mason until she should marry was in the event that had happened of her dying unmarried an absolute gift or only a determinable life interest. Joyce J. held that he was bound by Rishton v. Cobb (1) to hold that this direction constituted an absolute gift of the residue to Alice.

The defendant Mrs. Sturt appealed.

St. John Clerke, for the appellant. Joyce J. considered that he was bound by Rishton v. Cobb. (1) Lord Cottenham there drew a distinction between a gift during widowhood and a gift to a lady while she remained single and unmarried, and in the latter case he held that the interest did not cease with her death, but could only be determined by the act of marriage. It is difficult to follow that distinction, and that case was much commented upon in In re Boddington. (2) Rishton v. Cobb (1) is distinguishable because there was not there any gift over on death or marriage. Here there is a gift over on the marriage, and, apart from authority, it cannot be doubted that the intention was that the sons should take if the daughter either married or died. In re Howard (3), where Farwell J. followed Rishton v. Cobb (1), is distinguishable on the same ground, because in that case also there was no gift over. Assuming that the daughter took a determinable life interest only, the gift over, though expressed to be on the marriage only, means upon the determination of the prior interest and takes effect on either (1) 5 My. & Cr. 145. (2) (1884) 25 Ch. D. 685.

(3) [1901] 1 Ch. 412.

marriage or death: Browne v. Hammond (1); Underhill v. Roden. (2)

Attwater, for the respondents, the other defendants. In the event which happened there was here an unlimited gift of income so as to carry the corpus. This case is covered by Rishton v. Cobb. (3)

St. John Clerke in reply.

COZENS-HARDY M.R. This is a will which apart from authority would not, I think, have occasioned me much doubt or difficulty, but I am bound to say that, having regard to a decision of great weight, which has endured for a long time, and also having regard to some modern decisions, it is a will which is by no means easy to construe. The question is whether under this will the testatrix's daughter Alice, although she died without ever having been married, although she died a spinster, took the residue of the estate absolutely, or whether on her death it went between all the sons of the testatrix living at her own death. That depends upon the construction of a few words which I will read. In the earlier part of the will there were certain absolute gifts to, amongst others, Alice. They were absolute gifts in terms-gifts of jewellery and articles of that kind. Then comes the disposition of the residue. The trustees are to sell and convert and to invest in certain securities, and then come these words, which are the only material words: "I declare that my trustees shall pay the income of the said trust premises unto my said daughter Alice Mason until she shall marry and after her marriage shall pay to her the legacy or sum of three thousand pounds free of legacy duty out of the said trust premises and then divide the balance thereof equally between all my sons surviving me." As I have said, Alice died a spinster. One of the sons died in the interval between the death of the testatrix and the death of Alice, and Alice gave all her property to her surviving brothers. The question arises between the estate of the brother who died in that interval and the surviving brothers. It will be observed here that there is not in form an absolute indefinite gift of income (2) (1876) 2 Ch. D. 494.

(1) (1858) John. 210.

(3) 5 My. & Cr. 145.

C. A.

1910 MASON, In re.

MASON

v.

MASON.

C. A.

1910

MASON,

In re.

MASON

v.

MASON.

Cozens

Hardy M.R.

to Alice. In form it is limited up to a time. It is until she shall marry. It will also be observed that there is a gift over of the residue to the sons in the event of her marriage-a gift over of the residue, diminished only in that event by a capital gift of 3000l. to the daughter. The question of construction for us to determine is whether on the face of this will, having regard to that gift over, we are bound to say that by construction there is an absolute indefinite gift of income to Alice, and that the period which and which alone was to limit it has never happened and can never happen, and that therefore the gift over can never take effect. Joyce J. reluctantly came to the conclusion that he was unable to give effect to that which he conceived to be the intention of the testatrix. Upon the whole I have come to the conclusion that I am able to give effect to that intention. I cannot doubt what the intention of the testatrix was. The testatrix directs payment of the income of the trust premises to her daughter without any other limitation than these words "until she shall marry." These words have been discussed again and again. The great difficulty is Lord Cottenham's decision in Rishton v. Cobb. (1) There the Lord Chancellor was dealing with a sum of 20001. given to trustees upon trust to authorize and empower Lady Fanny Campbell, widow of the late Major-General Sir Niel Campbell, to receive the dividends as they became due so long as she should continue single and unmarried. There was a gift over on alienation or attempted alienation, but no gift over in the event of her marriage. Lord Cottenham says this (2): "If, therefore, she had been single and unmarried, and had so remained, she would have been entitled to the dividends, without any limitation of time. Her interest would not have been determinable by her death, but (independently of the forfeiture upon alienation) only by her ceasing to be single and unmarried. This is different from a gift of dividends during widowhood. The state of widowhood must determine with the life of the widow; but the gift, so long as the legatee shall remain single and unmarried, must be considered as requiring the act of marriage to determine the interest." Now, but for one passage in the judgment which I will come to (2) 5 My. & Cr. 152.

(1) 5 My. & Cr. 145.