1872 Hicks v. Ross. V.-C.B. be sufficient to pay the annuities to the children of Mrs. Hicks. The proceeds of the sale of the said estate shall be invested in Victoria Bonds or shares, in the names of the said trustees for the benefit of the said children. Should the profits not reach £800 annually from the working of the estate or the sale of the estate, then the trustees shall charge the residue of my property to make up the said annual sum of £800. Should the sale of the estate realise more than enough, when invested, to pay the 143] said annuities, then the *extra proceeds shall be invested in the aforesaid bonds for the benefit of Mrs. Isabella Hicks; but the sum to be paid her from the said investment shall not exceed £500 annually, which is to continue for her sole use and benefit. For the working of the East Indian estate, I leave (in addition to the sums already forwarded to India for the working of the said estate) it to my trustees to set aside a sum of money which shall be used as a reserve fund, in case of blight, drought, or any similar cause; but such sum of money to be equal to only three months' working estate expenses; such sum of money not to be raised by mortgaging the property or the proceeds to be derived therefrom. The trustees shall be invested with power to invest the moneys for Mrs. Hicks and her children in India bonds or shares. I appoint my brother, Christian Jacob Ross, residuary legatee; but that the revenue from my various properties shall be appropriated to the payment of all debts due and demands due at my death. I appoint as my executors Christian Jacob Ross, James Theobold, and Alexander Neish. Should the said Alexander Neish decline to become a trustee and executor, then I appoint Thomas Southcott. This is my last will and testament. By the codicil dated the same 25th of August, he empowered his trustees to let the estate for a term not exceeding three years; and by a second codicil, dated the 27th of August, he appointed Thomas Southcott, a fourth executor and trustee. The estate was ample; but the East Indian estate (which had been sold and had realized about £3500) was insufficient to yield £800 a year. The bill was filed by Mrs. Hicks's children, who were infants, against the executors and trustees, and (by revivor) against the representatives of Christian Jacob Ross, who had since died, for administration, and the only important question was, whether the annuities to the widow and to the children of Mrs. Hicks were for life only or perpetual. Mr. Amphlett, Q.C., and Mr. Bush, for the plaintiffs: An annuity to a person named will generally be an annuity for life only; but where the gift is a gift of such an amount of property as will be sufficient to produce an annuity the Court V.-C.B. Hicks v. Ross. 1872 will infer an *intention that it should be perpetual. Here [144 the property given is the proceeds of the Indian estate. The proceeds are appropriated for the purpose. Here there is also a gift over on the death of a child. Suppose a child should die; for how long is the mother to have the benefit of the deceased child's share?" Unless the annuity is perpetual, the limitation over and the use of the word "share" are insensible. The authorities are Stokes v. Heron (1); Mansergh v. Campbell (2); Vaughan Hawkins on Wills (3); Bent v. Cullen (*). Where a life annuity only is intended, as (according to our view) in the case of the widow, the language is different and distinct. Mr. Eddis, Q.C., and Mr. Nulder, for Mrs. Hicks: Upon the question of the annuities we support the plaintiffs' contention. During the minorities of the children, the £800, or a proportional part of it, is payable to Mrs. Hicks: Crockett v. Crockett (5); Hammond v. Neame (*). Mr. Swanston, Q.C., and Mr. Housley, for the executors and trustees, and for the widow: The annuity to the widow is also perpetual, being charged on the testator's property " of every description," including his real estate: Kerr v. Middlesex Hospital (); Hill v. Rattey (8). The life annuity to Ann Lloyd and the provision for the dogs are clearly enough expressed. Mr. Kay, Q.C., and Mr. Terrell, for the representatives of Christian Jacob Ross: The annuities are for life only. Both propositions-first, that a gift of an annuity beyond the life of the first taker is of itself a sufficient indication of the intention that it should be perpetual; and, secondly, that an appropriation of property to meet the annuity is a sufficient indication are untena- [145 ble: Lett v. Randall (9); Yates v. Maddan (10); Blewitt v. Roberts (11). The principle of Bent v. Cullen (12) is that a gift of part of the income of a fund is a gift of so much of the fund as will produce that income. But a gift of so much a year, charged on a particular fund, is not a gift of the fund itself. The testator here has merely said that which the law would have said for him. The gift of an annuity without words of limitation is a mere (1) 12 Cl. & F., 161. (3) 3 De G. & J., 232. (3) Page 128. (*) Law Rep., 6 Ch., 235, 238. (*) 2 Ph., 553, 558. (°) 1 Sw., 35. (7) 2 D. M. & G., 576. (") 2 D. F. & J., 388. (19) 3 Mac. & G., 532. (11) 10 Sim., 491; Cr. & Ph., 274. 1872 Hicks v. Ross. V.C.M. gift for life. The omission of words of limitation will not enlarge the gift. The gift over on the death of a child is limited to the lifetime of the mother. The intention was that this provision for the children and their mother should go on during their joint lives; if a child should die, the mother was not to lose the benefit; but that after the mother's death the shares of children already dead or dying thereafter should fall into the residue. Why should not the word "share" apply to a share of income? The indication of intention is at least as strong in favor of the residuary legatee as of these children. SIR JAMES BACON, V.C.: The questions on which the decision of the Court is asked in this case are questions of construction, as to which it is the duty of the Court not to violate any established rule provided that the indications of intention are not so apparent as to control its application. In this instance the intention of the testator is not very apparent and his will, which was written by a layman, must be considered as a whole. First, as to the annual sum directed to be paid to his wife, it has been said that, where he wishes to give a life annuity, as to the legatee Ann Lloyd, and in the provision made for his dogs, he uses language about which there can be no doubt. That is so; but the remark is not wholly conclusive, if the will be read as an entirety. The testator begins by a devise and bequest to his executors and trustees of all his property of every description, "for the 146] following *uses, intents, and purposes." That bequest does not, in my opinion, alter the construction in any way. It is simply an expression of that which is the necessary consequence of almost every testamentary disposition which is not specific or demonstrative. Then he gives to his wife "the sum of £56 per annum, to be paid quarterly," which I think is an annuity to the wife for her life only. A greater difficulty arises on the gift to the children of Mrs. Hicks. The testator has clearly placed himself towards these children in loco parentis. He is providing for his grandchildren, and he desires that they shall take his name, which is a very significant fact. Having an estate in India, which he estimates will produce £800 a year, he directs his trustees to appropriate that sum to the maintenance and education of these children. [His Honor read the clause to the end of the provision as to the increased profit of the estate, and continued:] If the bequest had stopped there, the result might have been V.-C.B. Hicks v. Ross. 1872 to show an intention to benefit the children during their lives nly. But the testator goes on to say: If any of the said children shall die, their mother shall have the benefit of the deceased child or children's share or shares. The trustees shall have the power, should any one of the said children get into debt, to forfeit their share or shares and divide it with the other children." He then gives the trustees power to sell the estate, "should the profits of the working not be sufficient to pay the annuities to the children;" the proceeds of the sale to be invested in Victoria bonds "in the name of the trustees, for the benefit of the said children." Then the testator, who seems to have anticipated a great many events which have actually happened, says: "Should the profits not reach £800 annually from the working of the estate, or the sale of the estate, then the trustees shall charge the residue of my property to make up the said annual sum of £800." If the result of the sale should be less than enough, the trustees were at once to make up the difference; if the result should be more than enough, the extra proceeds, up to £500 a year, were to be invested for the benefit of Mrs. Hicks. As to the general meaning of the testator, therefore, there can be no doubt. Having taken upon himself to provide for his eight *grandchildren, he has done so in terms which make his [147 Indian estate liable to make up this £800 a year, and if that fails, then his whole estate is liable to make up the amount. It is an absolute gift, unlimited in time and in terms. The whole of the testator's estate is liable for so much money as will give to each child a fund capable of producing £100 a year. The estate is pointed out as the fund out of which this amount is to be satisfied. I cannot think, upon the whole of these clauses, that the testator meant less than an out and out gift. The gift of residue to the brother amounts to no more than this, that the testator desires that all which shall remain, after his wishes have been accomplished, shall go to his brother. I am of opinion that, as to the wife, the annuity is for life only; but that as to the children of Mrs. Hicks, each of them is to take such an amount as will yield £100 a year. As to the claim made on behalf of Mrs. Hicks, I think the point raised in Crockett v. Crockett (1) does not arise here. There the gift was for the benefit of the wife and children pari passu, and Lord Cottenham thought the money ought to be paid to her. Here the direction is that the £800 a year is to be “ appropriated by" the trustees. The fund must therefore be applied by the trustees, and not paid to Mrs. Hicks. Solicitors: Mr. Theobald; Messrs. Fladgate, Clarke, Smith, & Forster. Will-Construction - Tenancy for Life - Gift of Residue in Fee-" Surviving Children or their Families". Children or Descendants - Partition SuitJurisdiction - Form of Decree. Testator, who died in 1854, gave all his property to his wife for life, and after giving certain pecuniary legacies and annuities, devised and bequeathed to his son C. all the residue, after his mother's decease, and to his heirs, and in case C. should die leaving no issue, then his freehold estate was to be equally divided between his (testator's) surviving children or their families. All the children of the testator survived their mother, who died in 1861, and, excepting one, all (two without issue, two leaving children, one leaving a child, and the issue of another child) died in the lifetime of C., who died in 1869 a bachelor and intestate: Held, that this was, like that in King v. Cleaveland ('), a gift on the death of C. without leaving issue living at his death to the other children of the testator then living, and to the families of such of them as were dead : Held, also, that" families" meant children, and not descendants of the testator's children. In a suit for partition a question of law arose; but the Court, no one objecting, exercised jurisdiction, but ordered the decree to be prefaced with a statement of the desire of all parties, other than that of an infant, that the case should be decided in this Court. THOMAS HELLYAR, who died on the 27th of September, 1854, by his will of that date, after directing that his debts, funeral expenses, and certain costs should be paid by his wife, to whom he gave all his property for life, whether freehold, leasehold lands, tenements, hereditaments, goods, chattels, credits, or effects, and after giving certain annuities (since determined) and pecuniary legacies, proceeded as follows: "All the rest, residue, and remainder of my estate and effects, . . . whatsoever and wheresoever situate, of which I may die seised or possessed,. I give, devise, and bequeath to my son Charles after his mother's decease, and to his heirs; in case he should die leaving no issue, then my freehold estate shall be equally divided between my surviving children or their families." He appointed his son Charles sole executor of his will. 161] *The testator's widow died in December, 1861. Charles Hellyar proved the will, and died in July, 1869, a bachelor and intestate. The testator left seven children, six sons, William, Charles, Francis, John, Samuel, and Richard, and one daughter, Mary Ann. Francis died in the lifetime of Charles, leaving seven children. John died in October, 1863, leaving a grandson and a daughter. Samuel died in March, 1864, leaving three children. Richard died in 1867 a bachelor and intestate. (1) 4 De G. & J., 477. |