1856. LOVETT V. LOVETT. Judgment. When a case arises, and I do not think that any such case can be found in the books,-in which the Court sees it would be merely frivolous and vexatious to direct an issue, it may be time enough to determine the extent of the jurisdiction. I do not come to the conclusion that the present case is one of that description. In this case, I must say, that there is sufficient upon the evidence before me to satisfy me, that there is a question to be tried. That is all I have to do in the matter. Minute of ISSUE devisavit vel non as to the will of October, 1853, the codicil of June, 1855, and the will of May, 1853. Nov. 4th. Will-Construction Per Stirpes- A direction in a will for trustees to apply should think necessary, of the income of NOCKOLDS v. LOCKE. A SPECIAL CASE. A testator, by his will, directed his trustees to stand possessed of his residuary personal estate, upon trust, in the case of each of his three daughters, Ann, Elizabeth, and the whole, or so much as they Mary, to pay one-third of the interest to such daughter for her life; and, after her death, upon trust to pay and apply such one-third, or so much thereof as they should think necessary, in such manner as they should think proper, towards the maintenance, education, and advancement in life of all and every the child and children of such daughter, as well then born as thereafter to be born, until the decease of the survivor of his three daughters. property, un til the period of distribution, towards the maintenance, education, and advancement of testator's grandchildren per stirpes:Held, not to afford ground for presuming He then proceeded to bequeath as follows:-" And from that he intend- and immediately after the decease of the longest liver of them my said daughters, then, as to the whole of the principal moneys so to be placed out as aforesaid, and the ed a division per stirpes of the capital. stocks, funds, and securities thereof, and all such interest and dividends as may happen to be due thereon, and unapplied as aforesaid, upon trust, to pay, assign, transfer, and divide the same unto and amongst all and every the child and children of them my said daughters, as well now born as hereafter to be born, in equal shares and proportions; and I give and bequeath the same accordingly." The testator died in 1821, leaving twelve grandchildren, seven by his daughter Ann, four by Mary, and one by Elizabeth. Mary died in 1827, Ann in 1835, and Elizabeth in 1855. The question for the opinion of the Court was, whether, upon the death of Elizabeth, the testator's residuary personal estate became divisible among the grandchildren per stirpes, or per capita. 1856. NOCKOLDS v. LOCKE. Statement. Mr. Currey, for the only child of Elizabeth, contended, that the property was divisible per stirpes, and that his client was entitled to one-third, and not merely to onetwelfth. It was true, that the gift of the capital was in terms which, taken alone, would require a distribution per capita; but the cases shewed, that this mode of construction would " yield to a very faint glimpse of a different intention in the context" of the will (a). And here, there was evidence of such intention in the circumstance, that the annual income of each daughter's share was directed, after her death, and until the distribution of the capital, to be applied towards the maintenance, education, and advancement in life of her child or children. In Brett v. Hor (a) Jarman on Wills, vol. 2, p. 162. Argument. 1856. NOCKOLLS V. LOCKE. Argument. ton (a), such a direction, as to interest, had been held a sufficient ground for presuming that the testator intended a division per stirpes of the capital; since the Court could not impute to a testator the intention that the legatees were to take one-fourth until the period of distribution, but to have their shares reduced on that event (b). In all cases of this kind, it is a question simply of intention; and a very slight indication of an intention in favour of a division per stirpes will control a gift in terms quite as strong as the present: Abbay v. Howe (c), Flinn v. Jenkins (d), Arrow v. Mellish (e), Hawkins v. Hamerton (f). Hunt v. Dorsett (g). Mr. E. F. Smith, for the children of Mary, who were equally interested either way, took no part in the argument. Mr. Sweet, for the children of Ann, contended, that the division must be per capita, and not per stirpes. Brett v. Horton was of doubtful authority; but even if it were law, it was inapplicable, the direction here as to the income being not to apply the whole per stirpes, but only so much as the trustees should think necessary; so that there would not necessarily be a reduction of the interest of any child. The leaning of the Court, even in doubtful cases, is in favour of a division per capita: Lady Lincoln v. Pelham (h). Here, the terms of the gift are express: and that the testator intended such a division is clear, from his having postponed the distribution of the capital. He cited also Penny v. Turner (i). (a) 4 Beav. 239. (b) Per Lord Langdale, M. R., (d) 1 Coll. 365. (e) 1 De G. & S. 355. (g) 5 De G., M'N. & G. 570. Mr. Sheffield for Defendants in the same interest. Mr. Currey, in reply, cited Armstrong v. Stockham (a). 1856. NOCKOLDS บ. LOCKE. VICE-CHANCELLOR SIR W. PAGE WOOD: It is quite clear, and indeed it was conceded in the argument, that if this case depended simply upon the terms of the gift over after the decease of the testator's surviving daughter, the division would have to be per capita; and that it lies with the party claiming a division per stirpes, to shew that the testator contemplated a division per stirpes and not per capita. The terms of the gift over are these: "and from and immediately after the decease of the longest liver of them my said daughters, then as to the whole of the principal moneys so to be placed out as aforesaid, and the stocks, funds, and securities thereof, and all such interest and dividends as may happen to be due thereon and unapplied as aforesaid, upon trust to pay, assign, transfer, and divide the same unto and amongst all and every the child and children of them my said daughters, as well now born as hereafter to be born, in equal shares and proportions." The gift, therefore, comprehends the whole of the capital, and all such interest and dividends as may not have been applied by the trustees, pursuant to the previous direction as to maintenance, education, and advancement in life. The clause treats this as one fund, and gives a vested interest in that fund to all the children of the testator's daughters, but postpones the distribution until the death of the surviving daughter. Then, looking at the previous direction as to (a) 7 Jur. 230. Judgment. 1856. NOCKOLDS V. LOCKE. Judgment. maintenance, education, and advancement in life, it appears from the will, that, previously to the period fixed for distribution, the testator does not give the whole of the income of any share for the benefit of any particular family, but only so much of that income as the trustees may think necessary. The result, therefore, of the entire will is this: that the whole of the income is not disposed of until the death of the surviving daughter. No child of any of the daughters could insist on receiving anything, whether principal or interest" unapplied as aforesaid," until that event. Now, in all the cases which were cited in favour of a division per stirpes, with the exception of Brett v. Horton, and especially in the case of Hunt v. Dorset, the will contained expressions which pointed, in the opinion of the Court, to a division per stirpes. Here, I find no such expressions. Then, with regard to Brett v. Horton, the reasoning which was founded on that case does not apply. If, upon the death of each of his daughters, the testator had directed the whole of the income of her share to be applied, until the period of distribution, for the benefit of her children, then the reasoning founded upon Brett v. Horton would apply. But, here, he has not given the whole. He has given the whole, or so much of the income as should be thought necessary by the trustees-evidently intending that the trustees should exercise a discretion as to the amount to be applied for the maintenance, education, and advancement of the children of each family-and it is not until after the death of his surviving daughter that he disposes of the unapplied portion of that income. This being so, and the gift over of the capital and of the interest "unapplied as aforesaid" being in terms which, taken |