By a codicil to his will the testator gave the first-mentioned moiety to Sir Charles Salusbury absolutely, subject to the Plaintiff's life interest therein.

The testator died in 1837, leaving the Plaintiff his only child.

His widow died in 1856, without having made any will or any disposition of the second moiety; and administration of her estate and effects was granted to the Defendant, Maria Newberry.

The proceeds of the policy were now represented by £11,619, 16s. 2d. 3 per cent. consols.

The bill prayed that the trusts of the will, so far as related to this sum, might be carried into execution under the direction of the Court.

Mr. Rolt, Q.C., and Mr. T. C. Thompson, for the Plaintiff,

Claimed the whole of the moiety over which the widow had a power of disposition. A bequest for "the foundation of a charity school" was void under the statute 9 Geo. 2, c. 36; and although there was an alternative, in favour of another charitable endowment, that did not bring the case within the authority of Sorresby v. Hollins (9 Mad. 221), because it was to be "such other charitable endowment," which brought it back to the former words, "foundation of a charity school;" which, requir-[531]-ing something new to be built, had a tendency to bring new land into mortmain, and was therefore void; Attorney-General v. Williams (2 Cox, 387), Longstaff v. Rennison (1 Drew. 28), Dunn v. Bownas (1 K. & J. 596), and Philpott v. St. George's Hospital (26 Law Journ. (N. S.) Ch. 33; S. C. reversed on appeal by the House of Lords, 24th July 1857, since the hearing reported in the text).

The whole of the moiety in question became, therefore, subject to the trust in favour of the testator's "relatives." Now a bequest to "relatives," without saying what relatives, is limited to such relatives as are capable of taking within the Statutes of Distribution, for the relation may be infinite; per Lord St. Leonards (2 Sug. Pow. 237). And although the widow might have exercised her power so as to include a larger class, as she has died without doing so the power is gone; and the Plaintiff, therefore, as the testator's only child, is entitled to the whole: Hardiny v. Glyn (1 Atk. 469; S. C. 5 Ves. 501), Cole v. Wade (16 Ves. 27).

Mr. Cairns, Q.C., and Mr. G. L. Russell, for Sir Charles Salusbury, did not dispute the Plaintiff's right to a life interest in the other moiety of the fund.

Mr. Daniel, Q.C., and Mr. Bazalgette, for the Defendants Newberry and Maria his wife,

Contended that, the widow having died without exercising her discretionary power of determining what part was to go to charitable purposes, and what part was to go to the testator's relatives, it was impossible for the Court to exercise that power, and the gift to each was void for uncertainty: Porter v. Fox (6 Sim. 485). As to the whole of the second moiety, therefore, the gift failed; and the moiety passed [532] under the residuary bequests to the testator's relatives, now represented by the Defendant, Maria Newberry.

Harding v. Glyn and Brown v. Higgs (1) would be cited on behalf of the Crown, to shew that, the widow having died without exercising her power, the Court would divide the fund equally but, in both of these cases, the Court was of opinion, upon the whole of the will, that there was a duty and obligation imposed upon the donee of the power to exercise it, and that equality was intended. Here the power was not in the nature of a trust, but like that in Brown v. Pocock (6 Sim. 257), where it was left to the donee to exercise it or not at discretion.

Mr. Wickens, in the absence of the Attorney-General, for the Crown, Claimed one-half of the moiety in question for charitable purposes. If a gift for "the foundation of a charity school" would have been bad, taken alone, here there was a clear option to prefer some "such other charitable endowment" as was specified in the will; and where there is an alternative to select either of two charitable objects, and one only is void under the statute, the Court upholds the gift in favour of the other; as in the late case of a bequest for founding a hospital within ten miles of London or of Dublin.

Then, as to the argument from uncertainty, this is clearly a trust-a direction (1) 4 Ves. 708; S. C. affirmed on rehearing, 5 Id. 495, and on appeal, 8 Id. 561.

which the widow was under an obligation to obey; and as she died without obeying it the Court, acting on the maxim that equality is equity, would divide the moiety in question, and give one-half to charitable purposes: Malim v. Keighley (2 Ves. jun. 333; S. C. affirmed on appeal; Id. 529), Brown v. [533] Higgs (ubi supra), Birch v. Wade (3 Ves. & Bea. 198), Burrough v. Philcox (5 My. & Cr. 73), Fordyce v. Bridges (2 Phil. 497).

Mr. Thompson, in reply, cited Falkner v. Butler (1 Ambr. 513) and Clowes v. Clowes (9 Sim. 403).

THE VICE-CHANCELLOR. I have a very clear opinion that a bequest to the charitable purposes mentioned in this would not be void, for it is certain that we often speak of founding a charity, without any intention in any way connected with land. Here there is a clear option "to apply a part to the foundation of a charity school, or such other charitable endowment for the benefit of the poor of Offley as she may prefer." It is clear that one may found a charitable endowment without violating the statute; and as to the word "such," that does not relate back, as it was argued, to "a charity school," but refers to what follows the words "as she may prefer."

The other point, as to the uncertainty of the trust, in reference to which Fordyce v. Bridges was cited, will require a little consideration.

Judgment reserved.

His Honor was afterwards referred to Doyley v. The Attorney-General (4 Vin. Abr. 485, 486) and Down v. Worrall (1 My. & K. 561).

July 24. VICE-CHANCELLOR Sir W. PAGE WOOD. The question in this case arises upon the will of Lynch Burroughs, who having, upon his marriage, settled a certain [534] policy of insurance upon trust, as to £2000, part of the proceeds, for his wife absolutely; and as to the residue upon certain trusts under which, in the event of her surviving him, she would be entitled to a life interest therein, with remainder to himself absolutely, by his will disposes of his interest as follows:-[His Honour read the passage from the will set out above.] Then by a codicil the testator bequeathed the moiety, in which his daughter has a life interest, to Sir Charles Salusbury, subject to the life interest of his daughter, so that the only question is as to the second moiety. As regards this second moiety, he directs it to be at his wife's disposal by her will "to apply a part to the foundation of a charity school or such other charitable endowment for the benefit of the poor of Offley as she may prefer, and under such regulations as she may prescribe herself, and the remainder to be at her disposal among his relatives in such proportions as she may be pleased to direct."

The first question that was argued was whether, as to the part intended by the testator for charitable purposes, the gift was or was not void; and as to this part of the case I have no doubt, as I said at the close of the argument, that it was not void, because under the terms of the will the widow had an option-she was at liberty to apply that part "to the foundation of a charity school, or such other charitable endowment," as in the will mentioned. And whatever may be the effect of the words "foundation of a charity school" occurring in the first branch of that alternative it is clear as to the second-the foundation of a charitable endowment-that a bequest for such a purpose would be a lawful bequest, and not void under the stat. 9 Geo. 2, c. 36.

The gift, therefore, amounts to a bequest of the fund in [535] question to be at his wife's disposal by her will, therewith " to apply" a part to the foundation of such charitable endowment for the benefit of the poor of Offley as she may prefer, and under such regulations as she may prescribe, and the remainder " to be at her disposal among" the testator's relatives in such proportions as she may direct.

Now, if either of these purposes had been mentioned alone, the case would be disposed of at once. The words "to apply," "to be at her disposal among," are much stronger in favour of construing this as a trust than those in Brown v. Higgs, where the words "I authorise and empower" might have been said to create a mere authority, and not a trust. And this is clearly the view which Lord St. Leonards takes of a will like the present, in his treatise on "Powers," where he is discussing the case of The Duke of Marlborough v. Lord Godolphin (2 Ves. sen. 61) and that of Harding v. Glyn (1 Atk. 469; S. C. 5 Ves. 501). Admitting that there was a distinction between the two cases, he says, in effect, that where there is a power of selection among certain objects,

and an intention manifested that the objects should not be disappointed-for instance, where there is a bequest to the testator's wife for life, and, after her decease, to be divided or distributed amongst such of his children as she should appoint-as the right to exclude some does not prevent the class from taking in default of appointment, it would now be held, notwithstanding the decision in The Duke of Marlborough v. Lord Godolphin, that the children take in default of appointment, either by implication, or because the power is coupled with a trust. (2 Sug. Pow. 163.)

Here I can have no doubt that the words "to apply" and "to be at her disposal among" are clearly sufficient to [536] create a trust; and that, if this had been simply a bequest of the whole to be at the widow's disposal among the testator's relatives in such proportions as she might direct, the widow dying without having so disposed of it, the whole would go to the Plaintiff as the testator's only child, and the only one of his relatives capable of taking within the Statutes of Distribution (see 2 Sug. Pow. 237); although, having this power of disposal among his "relatives," the widow might have exercised it, had she been so minded, in such a manner as to include persons more distantly related to the testator. (See Harding v. Glyn, ubi supra.)

Then the question arises whether the bequest in this case is void for uncertainty, it being only to be at the disposal of the widow "as to a part" (without saying what part) for one set of objects, and "as to the remainder" for another.

In reference to this part of the case, Fordyce v. Bridges (2 Phil. 497) is an authority in point. There the bequest was upon trust that the trustees, or the survivor of them, or the executors, administrators or assigns of such survivor, should invest the residuary personal estate in the purchase of estates in England or Scotland; such estates, if in England, to be settled upon one set of trusts, and if in Scotland, upon another. The trustees invested the greater part of the residue in Scotch estates, and died; and, the Court being of opinion that the discretionary power of selecting between English and Scotch investments was, under the circumstances, at an end, it was held, upon a rehearing, that the fund remaining uninvested became divisible in equal moieties, one-half upon the uses of the English estates, and the other upon those of the Scotch; although the trustees, had they been so minded, might have exercised [537] their discretionary power so as to entirely vary those proportions.

So, again, in the case of Longmore v. Broom (7 Ves. 124), where the testator bequeathed all his personal estate to his executors upon trust that they should apply and dispose of his personal estate unto and amongst his two brothers Joseph and Benjamin, and his sister Hannah, or their children, in such shares and proportions, and at such time or times, as they, his trustees, or the major part or the survivor of them, his executors or administrators, should in their discretion think proper; Sir W. Grant said, "The inclination of my opinion is that the children have an interest. This is not a direct bequest to the objects; but a bequest to the executors with an authority to dispose among them. The cases are very different. In the former the Court must, of necessity, construe those words; for they bear no sense of themselves. You cannot execute that intention. You must either alter the word 'or' to 'and,' and say the children are to take either with or after their parents; or, letting the word 'or' stand, suppose a contingency in contemplation to the parent, if the parent is living; to the children, if the parent is not living.' But, in either case, you must make some addition to the bequest; otherwise it would be void for uncertainty. A bequest to A. or B.' is void; but a bequest 'to A. or B. at the discretion of C.' is good; for he may divide it between them. That is the case of this will." (7 Ves. 128.) Then he says that the executors had a discretion to say to whom the fund should be given the parents or the children; but the Court had not that discretion, but must give the fund equally between the parents and the children, although the executors themselves were not so restrained.

I have been referred, since the argument, to two cases, as [538] bearing upon this question, and which have been supposed to be in conflict with each other, viz., the case of Doyley v. The Attorney-General (4 Viner's Abr. 485, 486) and that of Down v. Worrall (1 My. & Kee. 561).

The first of these-the case of Doyley v. The Attorney-General-was very similar to the present. There the property in question was bequeathed in trust for certain purposes, and, subject thereto, the trustees and the survivor of them, and the heirs and

executors of the survivor, were to dispose of it to such of his relations of his mother's side who were most deserving, and in such manner as they thought fit, and for such charitable uses and purposes as they should also think most proper and convenient; and the Master of the Rolls (Sir Joseph Jekyll) directed that one-half of the estate should go to the testator's relatives on the mother's side, and the other half to charitable uses; the known rule that equality is equity being, as he said, the best measure to go by.

It appears to me that there is no possibility of distinguishing that case from the present; for there can be no substantial difference between a direction to dispose of property to such relations and for such charitable purposes as the trustees should think most proper, and a direction like the present, to apply a part" to such charitable purposes "and the remainder" among relatives with a like discretion. The two cases cannot be distinguished.

66

The case of Down v. Worrall (1 My. & Kee. 561) will be found on examination not to conflict with that to which I have last referred. In Down v. Worrall the testator left part of his residuary personal estate to his trustees to settle it either to or for charitable or pious purposes, at their discretion, or [539] otherwise for the separate benefit of his sister and all or any of her children, in such manner as his trustees should think fit. And there it was held that a sum which remained at the decease of the surviving trustee, and which had not been applied either to charitable purposes or for the benefit of the testator's sister and her children, was undisposed of, and belonged to the testator's next of kin.

Now, whether that case can or cannot be reconciled with all the others on this subject, it is very clearly distinguished from the present: for it is one thing to direct a trustee to give a part of a fund to one set of objects and the remainder to another, and it is a distinct thing to direct him to give "either" to one set of objects "or" to another. Down v. Worrall was a case of the latter description. There the trustees could give all to either of the objects. This is a case of the former description. Here the trustee was bound to give a part to each.

I am therefore of opinion that, even if the case of Down v. Worrall can be reconciled with the other authorities on this subject, it cannot affect my decision in the case before me. Here there is a plain direction to the widow to give a part to the charitable purposes referred to in the will as she may think fit, and the remainder among the testator's relatives as she may direct. And the widow having died without exercising that discretion, the moiety in question must be divided equally.

There will be a declaration that, as to one moiety, Sir Charles Salusbury is entitled absolutely, subject to the Plaintiffs' life interest therein, and that the other moiety is divisible in equal parts, one of such parts to be for charitable purposes, and the other for the Plaintiff absolutely, as the only person entitled under the Statutes of Distribution. There must also be a reference to Chambers to settle a scheme for the application of the part devoted to charitable purposes.

[540] KENNEDY v. SEDGWICK. July 22, 1857.

[See White v. Hill, 1867, L. R. 4 Eq. 270; Bryden v. Willett, 1869, L. R. 7 Eq. 476; In re Ball, 1887, 36 Ch. D. 512; 40 Ch. D. 11; In re Hamlet, 1888, 39 Ch. D. 437.]

Will. Construction. Vested Interests. Gift over, contradictory.

Leaving"

Bequest upon trust to pay and divide equally to and amongst all the children of testator's daughter when the youngest should attain 21, followed by a gift over in case of the death of his daughter" without leaving any child or children: " Held, the youngest child having attained 21, that the fund was divisible equally amongst all the children, and that such interests were not defeasible in the event of the death of the testator's daughter without leaving any child or children.

In such a case, the gift over being contradictory if the word "leaving" be construed literally, that word will be read as equivalent to "having."

Miles Burton, by his will in 1820, after giving an annuity to his daughter, Elizabeth Kennedy, directed his trustees, in case of the death of his said daughter leaving any child or children who should live to attain twenty-five years, being a son or sons, to convey and assure all his real estate to the eldest of such sons, if more than one; and, if only one, then to such only son, his heirs or assigns, on his attaining twenty-five years; but, if there should be no son, then to sell his real estate, and the proceeds to sink into and become part of the residue of his personal estate. And he directed his trustees to stand possessed of the clear residue of his estate and effects (subject to certain contingent pecuniary legacies), and all accumulations of interest thereof, upon trust, to pay and divide the same equally to and amongst all and every the child and children of his said daughter, when the youngest of such children should attain twenty-one. The will then contained a proviso that, in case of the death of his said daughter "without leaving any child or children," the trustees were to convey his real estate to the sons of his late sister Ann, as tenants in common, and to assign and transfer the residue of his personal estate unto and amongst all the children of his said deceased sister, both sons and daughters.

Elizabeth Kennedy had nine children, all of whom attained twenty-one. It appeared that she was now a widow, and fifty-seven years of age. It was conceded that the devise of the real estate was void for remoteness.

[541] Mr. Rolt, Q.C., and Mr. Giffard, for the Plaintiffs, the sons of Elizabeth Kennedy; and Mr. Greene, for the daughters, who were Defendants in the same interest, contended that there being a gift of the clear residue of the testator's estate and effects to all the children of Elizabeth, under which all such children took a vested interest, the gift over in case of the death of Elizabeth without leaving any child was contradictory. The Court, therefore, would read the word "leaving" as equivalent to "having," as had been done in many similar wills: In re Thompson's Trusts (5 De G. & S. 667), Maitland v. Chalie (Madd. & Gel. 243), Casamajor v. Strode (8 Jur. 14), Ex parte Hooper (1 Drew. 264), and Marshall v. Hill (2 Mau. & Selw. 608).

Mr. Sandys, for the children of Ann Holgate, contended that as to the real estate there was no vested interest in the children, consequently there could be no pretence as to that part of the testator's property for applying the rule of construction contended for by the children of Elizabeth; and as to the personalty, he submitted that the word "leaving" must be construed literally.

Mr. Prendergast, for the testator's daughter Elizabeth.

THE VICE-CHANCELLOR [Sir W. Page Wood] said, without hearing a reply, that the case was clearly one which fell within the rule of construction adopted in the authorities that had been referred to; and that, there being a gift of the residue under which all the children of Elizabeth had acquired vested interests, the gift over in case of the death of Elizabeth without leaving any child was contradictory, if the word "leaving" were read literally; and that the word "leaving" must [542] be read as equivalent to "having." There would, therefore, be a declaration as follows:

Declare that the devise of the real estate to vest at twenty-five is void for remoteness. And as to the personal estate, the youngest child of the testator's daughter Elizabeth having attained twenty-one, and it appearing that Elizabeth is now fifty-seven years of age, declare that the personal estate is now divisible equally among all the children of Elizabeth now living, and the personal representatives of such as are deceased, and that such interests are not defeasible in the event of the death of Elizabeth without leaving any child or children.

[542] WHATELEY v. SPOONER. July 17, 1857.

[See Smith v. Conder, 1878, 9 Ch. D. 172; In re Coyte, 1887, 56 L. T. 514.] Will. Unattested Document. Parol Evidence. Construction. "Which" for "As.” "Sums of Money." Shares.

Direction in a will that, "all and every such sums of money which I have already advanced or may hereafter advance to my children as will appear in a statement in