RENDLE SHAM. [ *522 ] take the first, the eldest second, the third the fourth, the fourth THELLUSSON the third, and so on, as the ages of the different individuals of those different branches might happen to be at the period of division. Now, this must strike any one as extremely eccentric, and unlikely to have entered into the contemplation of a man of ordinary sense and reason. It is quite true that the singularity and apparent absurdity of a testator's intention will not prevent its taking effect, if his meaning is clear; but if the words are capable of bearing two constructions, one which would make the bequest probable, and consistent with the rest of the will, and another which is strange and singular, and approaching to the absurd, the former ought certainly to be adopted. If the testator had intended to make the strange and whimsical provision which is attributed to him, he would naturally have said the eldest man or the eldest in age among the male lineal descendants. And then undoubtedly his intent must have been carried into effect, and its strangeness and eccentricity would not have prevented its operation. But the words used are not only quite consistent with the reasonable and probable intent to prefer the eldest in point of blood, but probably ought to be held to have that meaning without any context, and, with the additional context to explain them, there seems to me to be no reasonable doubt as to their meaning. The remainder is to the second, third, fourth, and all and every other male lineal descendant or descendants then living of Peter Isaac Thellusson successively in tail male. The words "second, third," &c., are used relatively to the eldest. And it is much more reasonable to hold that they give the sense of first to "eldest," that is, first in respect of primogeniture, or first in blood inheritable by descent, rather than that the word "eldest" is to qualify the words "second and third," and to cause them to be read as "second oldest, third oldest," &c. And if the testator had intended to give the estate according to their respective ages, one cannot doubt he would have used the words "second in age, third in age," &c., or an equivalent expression. I think, therefore, that the true construction of the clause in question is, that the "eldest" means, not eldest in years, but in the priority of succession, eldest in inheritable blood. It was, however, urged by Sir Richard Bethell in his most able argument, that what has been termed the "parenthetical clause," on which he mainly relied, explained in what sense the word "eldest" was used, because that clause, on the supposition that it meant the most aged, was useful and indeed necessary, but that if it meant the eldest in respect of primogeniture it was useless. I do not think that if considered as surplusage it would be of [ *523 ] RENDLE- THELLUSSON much importance in such a case as this. But if I rightly understand his argument, the parenthetical clause was as necessary and useful in one supposition as the other. If "eldest" is to be taken as the most aged, it might happen that at the period of division the descendant who was eldest in point of years might have an eldest son, who might be the next eldest, older than all the other descendants of Peter Isaac Thellusson. The clause requires that in that case such eldest son who would be capable of taking as heir in tail of his father, should not have a remainder limited to him in tail as a purchaser. [ *524 ] But suppose the term "eldest" to mean the eldest having the privilege of primogeniture, the eldest in heritable blood, his eldest son might be considered as a second descendant in the same sense, the second in the line of heritable blood. And it would be as useful and necessary to introduce the clause in this case as in the other. It may be fit to notice another argument that was used at the Bar in favour of the hypothesis that the testator meant the eldest in age to have the estate at the expiration of the time of accumulation. It was said that his object was to cause a greater uncertainty as to the person who was to be entitled, and thereby to diminish the chance of anticipation by sale of the future interest. It is true, indeed, that if the eldest in age was to take, he would at any given time have a worse chance of succeeding to the estate, because it was less likely that he would survive the lives during which the accumulation was to take place, than the eldest in blood if he was to take, save in the case of his happening to be the same person, and would be able to sell that chance for less than the eldest in blood, and in that respect would be less likely to anticipate. This supposition is, however, very fanciful and improbable. The chance of anticipation would depend, not upon the value of the interest (for each person could sell it for its true value), but upon the habits, character, and pecuniary circumstances of the person entitled, of which the testator could not possibly form an opinion. I think it cannot be for a moment supposed that an idea of this sort could have entered into his mind. As to the advowson clause, opposite inferences have been drawn on both sides by the learned Judges, Mr. Justice CROMPTON, Mr. Justice BYLES, and Mr. Justice WIGHTMAN, on the one side, and Barons MARTIN and BRAMWELL on the other. On the supposition that the testator thought that infancy was a disqualification, I think any argument derived from this clause, on one side or the other, is very unsatisfactory, and ought to be entirely rejected; and, indeed, the learned Judges respectively do not seem to place much reliance on this clause. * 2. RENDLE SHAM. [ *525 ] Nor do I think it necessary to advert to the numerous cases of THELLUSSON the construction of other wills with different words, which were quoted at great length at your Lordships' Bar, and with no advantage. And I quite agree in the observation of Sir Richard Bethell as to the inutility of attempting to illustrate the words of one will by those of another. Cases as to the construction of the words. "elder" and "younger" son throw no light whatever on this. The result, in my opinion, is that the word "eldest" is, in this will, from the subject to which it refers, and the whole context, to be construed in the sense, not of oldest in point of age, but eldest in point of primogeniture, eldest in heritable blood. And I agree with Mr. Justice CROMPTON, that looking at the whole will, the construction by which the estate goes, as it would have done if the estate tail had commenced earlier in the succession, is the one in accordance with the general scope of the will, and that the construction according to which, at the end of the period of accumulation, the estates are to be conveyed and the remainder limited according to the relative age of the descendants, is so strange, fantastical, and little reconcilable with the clear intention of the testator to make three family estates, each to descend in the usual way of limitation of large estates, that it ought not to be adopted without the clearest possible words incapable of any other rational construction. And the words in the will are clearly not of that character; quite the contrary. With this opinion, it is hardly necessary to say that I think it impossible to hold that the will is void for uncertainty. And it becomes unnecessary to consider the objection of my noble and learned friend opposite, that that question is already concluded. I have made up my mind upon the great question in the case on considering the will itself; but it is a great satisfaction to know that the result accords with the much considered opinion of Lord ELDON in Oddie v. Woodford (1) and with that of Mr. Justice BULLER expressed in the case of Thellusson v. Woodford (2). It remains to observe, upon a point suggested by the SolicitorGeneral, viz., that there is an intestacy as to part of the trust funds. The trust is to employ the personalty in the purchase of real estates, and then to collect the rents and profits, both of the lands devised and of the lands purchased as aforesaid, and invest the money arising from these rents and profits in similar purchases, and then to collect and invest the rents and profits of those lands so purchased as last aforesaid, in the same manner as those of the lands devised and first purchased. He contended, that there is no trust as to the rents and profits of any lands purchased with the rents (1) 45 R. R. 331 (3 My. & Cr. 584, (2) 4 Ves. Jr. 376. 596). [ *526 ] RENDLE- THELLUSSON and profits of the lands secondly purchased. A similar argument was used as to the money arising from the sale of timber on the estates secondly purchased. The direction is to cut down timber upon the lands devised and those directed to be purchased, and sell the timber and lay out the produce in the purchase of other estates. I think it clear, that this includes the timber upon all the lands directed to be purchased at any time, and purchased at any time, either first or secondly, and that there is no intestacy as to the produce of the sales of timber. I think it clear also, that the clause empowering investment in the funds until a proper purchase was to be made, applies to the rents and profits of all the lands purchased under the directions of the will, whether purchased first or secondly, or at any other time, and, therefore, implicitly authorises the investment in land of all the rents and profits of all the estates. The objection, therefore, of the Solicitor-General cannot prevail. [527] [*528] I, therefore, entirely concur in recommending your Lordships to affirm the judgment of the COURT below. As to the costs, I think they ought to be paid out of the estate. LORD BROUGHAM: My Lords, not having had the advantage of hearing the whole of the argument, I purposely abstain from taking any part in the decision farther than to state that I entirely agree with my noble and learned friends in the conclusion at which they have arrived, from all my recollection of that large part of the argument which I did hear, and from reading the opinions of the learned Judges. The learned Judges differ upon this subject: the two views principally taken, which were most ably argued at the Bar, and which have been most ably argued on either side by the learned Judges, relate to the question whether "eldest" is to be taken to mean oldest in point of years, or first in point of lineal male succession. Both those views have been fully and elaborately argued; and I quite agree with my noble and learned friends in the opinion at which they have arrived upon that question. My Lords, that there is any room for holding the will void for uncertainty, that there is any ground for saying that no intelligible construction can be put upon it, I deny, and also that there is any ground for saying (which is a barely possible case to happen) that the two conflicting opinions are supported by reasons so accurately and nicely and completely balanced, that it is impossible to decide either way, in which case the will might be said to be void for uncertainty, but no such case as that arises here. The arguments were most ably stated at the Bar, and they have been most ably stated also by the minority of the learned Judges, Mr. Baron MARTIN and Mr. Baron BRAMWELL, *for the construction of oldest in point ፖ. RENDLE SHAM. of age; but taking the arguments on the other side, without regard THELLUSSON to the weight of authority, and having regard only to the weight of argument, I am clearly of opinion that there is no balance whatever, but that the preponderance is decidedly in favour of the view taken by the majority of the learned Judges. I am, therefore, of opinion, that my noble and learned friends have come to a right conclusion, and that the proposition of my noble and learned friend who spoke first, to affirm the judgment of the COURT below, ought to be adopted. THE LORD CHANCELLOR: My Lords, having been counsel for one of the appellants in the Court below, and having also signed the case and the reasons for the appeal to your Lordships, I determined that I would take no part in the decision, unless it should happen that there was an equal division of opinion amongst your Lordships. Fortunately there' is an unanimous concurrence of judgment amongst your Lordships, and, therefore, I think it proper to decline to express any opinion on the subject, but I thought it right to give this explanation, because from the position which I have the honour to hold in your Lordships' House and from my having been present during the whole course of the argument, it might otherwise have excited surprise that I should take no part in the judgment in this most important case. [His Lordship then expressed his opinion that the question of uncertainty had not been determined by the previous decision of the House of Lords. Lord CRANWORTH and Lord WENSLEYDALE concurred in that view, but Lord ST. LEONARDS was of the contrary opinion, saying, "It was a question concluded against the next of kin and the heir-at-law that there was no uncertainty." Decree affirmed. Appeals dismissed with directions that the EVERS v. CHALLIS (1). (7 H. L. C. 531-557; S. C. 29 L. J. Q. B. 121; 5 Jur. N. S. 825; 7 W. R. 622.) Though a gift over may as to one alternative operate as an executory devise, it will not necessarily do so as to another; and if the second is that which in fact occurs, the gift may be treated as a good contingent remainder. The invalidity of one alternative will not necessarily defeat the other. (1) But gifts over cannot be split in this way unless the testator has expressed them as alternative contingencies: In re Bence, Smith v. Bence [1891] 3 Ch. 242, 60 L. J. Ch. 636, 65 L. T. 530; overruling Watson v. Young (1885) 28 Ch. D. 436, 54 L. J. Ch. 502. And see In re Hancock, Watson v. Watson R.R. VOL. CXV. 17 |