Edward Hill had been actually introduced into the deed by which the power was created. Now, in that view, it would be read thus in trust to pay the dividends to a person in existence for life (that is, to Mrs. Pownall); after her death to pay the dividends, a moiety, to another person for his life; after the death of the survivor of those tenants for life, to transfer the moiety unto and equally amongst all the children of Mr. and Mrs. Pownall, except that as to daughters of Mr. and Mrs. Pownall, their respective shares were to go to them not absolutely, but only for life, and then a limitation to the children of those daughters; which is here again precisely the same question in principle as arose in Cattlin v. Brown. In that case, the Vice Chancellor of England decided exactly what Vice Chancellor Wood decided in Cattlin v. Brown. It so happened that all Mr. and Mrs. Pownall's children were born before the date of the deed, and the Vice Chancellor decided that because they were all born before the date of the deed, the limitations over to the children of the daughters were perfectly good, because each share must be ascertained within the legal limits, and nothing that could afterwards happen could in any way augment or diminish the share which any one of these classes was intended to take; by "classes," meaning children respectively of the daughters of Mrs. Pownall. So that this decision in Griffith v. Pownall appears to me to be clearly a decision (and on the same principle too) in accordance with Cattlin v. Brown.

The next case I should refer to is Greenwood v. Roberts (5), where there was a bequest of personalty to trustees, upon trust to pay an annuity of 200l. to Thomas Nicholson for life. Now, Thomas Nicholson may be considered the first tenant for life standing in the place of Thomas Bannester Cattlin in Cattlin v. Brown, and standing in the place of Benjamin Bannester in the case before me, and the case appears to me to come precisely within the principle of Cattlin v. Brown. Richard, the son of Thomas Nicholson, who was living at the death of the testator, had three children, and the question was, whether the limitation to those three children after the death of

(5) 15 Beav. 92; s. c. 21 Law J. Rep. (N.S.) Chanc. 262.

Thomas Nicholson, and after the death of Richard, the father of these children, was a valid limitation? The Master of the Rolls held, that the gift to the children of Richard was too remote, and he decided it upon the principle of Leake v. Robinson; and it appears to me, that he seems to have considered that all the grandchildren of Thomas Nicholson (that is, all the children of the children of Thomas Nicholson) constituted one class. No doubt they constitute one natural class, but they do not constitute any class among whom some particular property is given indiscriminately. As in Cattlin v. Brown, and as in Griffith v. Pownall, and as in the case now before me, what is given to the third generation is not given to all the members indiscriminately of that class who constitute the third generation, but there is a distinct share given to such of them as should be the children of one of the children of Thomas Nicholson; another distinct share, quite independent of that, given to the children of another child of Thomas Nicholson; and so on, toties quoties; and, therefore, I confess it does appear to me that this decision is not reconcilable with the decision in Cattlin v. Brown. I am bound, however, to say, that in Cattlin v. Brown, upon this case of Greenwood v. Roberts being cited to Vice Chancellor Wood, he considered that the case was not in conflict with what he meant to decide, and did decide, in Cattlin v. Brown; and if Greenwood v. Roberts, according to the opinion of Vice Chancellor Wood, is not in conflict with his decision in Cattlin v. Brown, neither is it in conflict with that which I am asked to decide in favour of the plaintiffs in the case now before me.

I think I should hardly be honest if I did not say that I am not able to see the distinction which Vice Chancellor Wood refers to, between Greenwood v. Roberts and Cattlin v. Brown, which is this, that in Greenwood v. Roberts the children of Thomas Nicholson, the first tenant for life, who were born and in esse at the death of the testator, might all have been dead at the death of Thomas Nicholson. That is the ground on which he distinguishes it. Now, it appears to me that in Cattlin v. Brown precisely the same observations would arise, and that it would be equally

true that all the children of Thomas Bannester Cattlin, who were born in the lifetime, and alive at the death, of the testator, might die in the lifetime of Thomas Bannester Cattlin. I do not see how the observation, or the ground of distinction, applies, and I confess it strikes me that, for the same reason, Cattlin v. Brown ought to have been decided in the same way as Greenwood v. Roberts was decided.-[His Honour then referred to the observations on Greenwood v. Roberts (6), and continued:]-Either Greenwood v. Roberts does conflict with Cattlin v. Brown, in which case Vice Chancellor Wood said he could not follow it, or it does not, in which case it does not conflict with this case.

The next case I would refer to is Storrs v. Benbow (7). Here the distinction is, that the testator did not give the shares of an aggregate fund to the several children of a person, and to the children of those children, but gave a distinct sum of 500l. to each child that might be born to either of the children of either of his brothers. Sir J. Leach decided that the plaintiff, who was a son of a daughter of one of the testator's brothers, and who was en ventre sa mère at the testator's death, was entitled to one of the legacies of 500l. And on appeal, Lord Cranworth said: It mattered not which way the will was construed, whether as Sir J. Leach construed it, or otherwise; for even if it were construed to mean children born at any time, it would not be too remote as to the plaintiff, because this was not a gift to a class, but a separate gift to the children of each child; and it would be a mistake to compare this case with Leake v. Robinson and other cases, where the parties take as a class. Now, that case, as I have said, is not exactly this; but it appears to me, if it were the only case besides Cattlin v. Brown, to go a long way to decide the principle that was decided in Cattlin v. Brown; and Lord Cranworth takes care to distinguish between a class in the popular sense of the term, and a class created by the gift of the testator; and he says: This is not a gift to a class, but it is a gift of 500l. to the children of every child of every nephew

(6) 1 Jarman on Wills, 241-244, 3rd edit.

(7) 2 Myl. & K. 46; s. c. 3 De Gex, M. & G. 390; 22 Law J. Rep. (N.8.) Chanc. 201, 823. NEW SERIES, 34.-CHANC.

the testator then had, whether born before or after the testator's death; and therefore, even if you construed the will to mean any children, it would still be good as to the class which was constituted of children born of a nephew who was in existence at the time of the death of the testator. Therefore, that case, so far from being in conflict with Cattlin v. Brown, seems to me to be decided on the same principle as Vice Chancellor Wood decided Cattlin v. Brown.

The next case that followed was Cattlin v. Brown itself; and then, after Cattlin v. Brown, came three other cases, decided by the Master of the Rolls. One is Seaman v. Wood (8), where the bequest was held void for remoteness as to all the children and grandchildren of Edward Seaman, although the shares must necessarily be ascertained within a life or lives in being, and twentyone years after. But, in that case, it does not appear whether any child of Edward Seaman was in existence at the death of the testator; and therefore, very probably, it was decided not in conflict with Cattlin v. Brown. I may observe, that in that case neither Griffith v. Pownall nor Cattlin v. Brown were cited or adverted to.

The next case is Webster v. Boddington (9). At first sight it would appear as if the decision in that case was in conflict with Cattlin v. Brown; but, on careful consideration, it appears to me it is not at all so. Now, the construction put upon that will by the Master of the Rolls (about the propriety of which there can be no question) was, that it was a gift in equal shares to such of the children of Lady Webster who should be living at the period of distribution as, being sons, should attain twentyone, and being daughters, should attain twenty-one or marry, and to such of the issue of any of her children dying before the period of distribution as, being sons, should attain twenty-one, and being daughters, should attain twenty-one or marry. Now, if the requisition as to the attainment of twenty-one or marrying had been confined to the children of Lady Webster, and had not been extended to the issue of her children, then, indeed, the number of shares

(8) 22 Beav. 591. (9) 26 Ibid. 128.

C

into which the fund was to be divided, and consequently the share which each was to take must necessarily have been ascertained within a life in being, and twentyone years after. But the testator extended the same requisition (that is, as to the attaining twenty-one as to sons, or attaining that age or marriage as to daughters) to the issue of the children of Lady Webster. Now, Lady Webster might, after the testator's death, have had another child, say a daughter, and then she might die leaving that daughter an infant of tender years, which daughter might afterwards die under twenty-one, leaving an infant child. And until that last-mentioned child of the daughter should attain twenty-one, at least until it should be certain whether it did attain twenty-one or not (which might not be capable of being ascertained for more than twenty-one years after the death of Lady Webster, who was the life in being), it would be impossible to ascertain into how many shares the property would be divisible: that is, it would not necessarily be ascertainable what share each child of Lady Webster was to take. And, in that view, the decision of the Master of the Rolls, that the whole gift after the death of Lady Webster was void for remoteness, is not in the least degree inconsistent with Cattlin v. Brown; and I may observe, that in that case of Webster v. Boddington, the Master of the Rolls, referring to Cattlin v. Brown, expresses his unqualified approbation of it. He says, "I fully acquiesce in the propriety of that decision, and I fully concur in the five rules which the Vice Chancellor lays down in that case, in which he specifies what are the leading principles which govern those cases."

The next case is Wilson v. Wilson (10), before Vice Chancellor Wood; and the last case is Wilkinson v. Duncan (11), before the Master of the Rolls, both of which were decided in accordance with Cattlin v. Brown.

Those being the only authorities that bear very directly on the present question, it appears to me to stand thus: We have the decision, in Arnold v. Congreve, of Sir J. Leach, which, no doubt, as far as the decree goes, is inconsistent with Cattlin v.

(10) 28 Law J. Rep. (N.s.) Chanc. 95.

(11) 30 Beav. 111; s. c. 30 Law J. Rep. (N.S.) Chanc. 938.

Brown; but, as I have said, much of the weight that would be due to it is taken away, by the consideration that he had not the point raised before him, nor did it occur to his mind. Then I am not aware, unless Greenwood v. Roberts be an exception, that any one of those cases is in conflict with Cattlin v. Brown. On the contrary, with that exception, and disregarding Webster v. Boddington, which turned on a different question, and which is perfectly right, it appears to me they all confirm the principle in Cattlin v. Brown; Griffith v. Pownall more especially, Storrs v. Benbow to a certain extent, not precisely the same, but as it appears to me proceeding on the same principle. And I may observe, if Greenwood v. Roberts be an exception, that the very Judge who decided Greenwood v. Roberts in cases subsequent to Cattlin v. Brown, repeatedly expressed his entire approbation of the decision in Cattlin v. Brown, and that he never meant to decide anything inconsistent with it. That would, I think, be quite sufficient ground for me to proceed upon to decide this case in accordance with Cattlin v. Brown.

But further, looking at the broad question on principle, why is there any law about perpetuities at all? Simply because at a very early period of our legal history it was considered to be very much against public policy and against the interests of the community, that property should be capable of being tied up indefinitely; at the same time it was necessary, for the convenience and advantage of families that there should be a power to tie it up to a certain extent. By a series of what may be called, perhaps, judicial legislation (not by any act of parliament), by degrees it has been established, and now long established, that the rule is to be this, you cannot tie up property in such a manner as that it shall not absolutely vest in some person or persons within a life or lives in being, and twenty-one years afterwards, with the addition when, and when only, the occasion calls for it, of nine months, the period of gestation, so as to embrace a child en ventre sa mère. That is the elementary rule. Now, one question that arises is this, does the decision in Cattlin v. Brown, which I am asked to follow, in any way bring the case within the mischief intended to be guarded against by that rule?

Not in the least, because as to those children of Thomas Bannester Cattlin, the first tenant for life, who were in existence at the death of the testator, the testator had perfect power to give to each one of them for life, with a limitation to the children of those children, and therefore, in deciding that it would be good to the children of such of the children as were in existence at the death of the testator, you are not in the smallest degree infringing the principle of the rule with regard to perpetuities. On the other hand, consistently with the general rule as to perpetuities, Vice Chancellor Wood decides, that though it be good as to the children of such of the children of Thomas Bannester Cattlin as were alive at the death of the testator, it is bad as to the others. And why bad as to the others? Simply because if you hold it good, it would then be within the mischief intended to be guarded against by the rule of perpetuities; because then Thomas Bannester Cattlin might, long after the death of the testator, have had a child, which child might afterwards have children, and, of course, if the gift to those children of that after-born child had been held good, it would hold a limitation to be good where the property would not necessarily vest in any person whatever within a life in being at the death of the testator, and twenty-one years after the life. Then, both on authority and principle, there can be no fair question about the propriety of the decision in Cattlin v. Brown; and therefore I have only to make the same decree. In the case before me all the children were in esse, because I consider the child en ventre sa mère at the death of the testator was, for the purpose of the rule as to perpetuities, a child in esse, and therefore the limitation to the children of Caroline, that is to say, the two plaintiffs, is good as to them, and they take the share, the principle being that where there are distinct shares to children and their issue, if the shares can be ascertained within the legal limits, then the gift is good, the gifts of the shares being so many separate and independent gifts.

There will be the same decree and declaration in favour of the present plaintiffs as there was in favour of the plaintiffs in Cattlin v. Brown.

An administration suit was proceeding in one branch of the Court, while a society, in respect of which the estate then in course of administration had been declared a contributory, was being wound up in another. In an order made in the administration suit, refusing a motion by the official manager of the society, words were inserted, that the Court was of opinion that the official manager ought not to be allowed his costs of the motion out of the society's estate: Held, that whether this expression of opinion was to be regarded as judicial or extra-judicial, the question as to the allowance of the costs was exclusively within the jurisdiction of the Judge in whose branch of the Court the society was being wound up; and that the words referred to must be struck out of the order.

This was an appeal motion in an administration suit, which had been instituted in Vice Chancellor Stuart's Court.

The chief clerk had certified that the estate was liable in respect of shares in public companies; among others, in respect of 500 shares in the British Provident Life Assurance Society.

This society was being wound up in Vice Chancellor Kindersley's Court; and the estate of Jones, the testator, had been there declared a contributory in respect of the 500 shares.

The official manager of the society obtained leave from Vice Chancellor Kindersley to move, before Vice Chancellor Stuart, to arrest any distribution of Jones's estate in the suit of Jones v. Jones until the claim of the society in respect of the shares should have been satisfied.

This motion was refused by Vice Chancellor Stuart, with costs; and in the order the following words were inserted: "And this Court is of opinion that the costs of this motion ought not to be allowed to the said William Turquand (the official manager) out of the estate of the said society."

Vice Chancellor Kindersley believed himself to be bound by this expression of opin

ion on the part of Vice Chancellor Stuart, and to be precluded from going into the question as to the official manager's costs of the motion; but he gave the official manager leave to bring the present appeal motion, asking that those words might be struck out of the order.

Mr. Bacon and Mr. Karslake appeared for the official manager.

The LORDS JUSTICES stopped Mr. Bacon, and called upon the other side to shew what jurisdiction Vice Chancellor Stuart had to give any decision as to property which was attached to the Court of another Vice Chancellor.

Mr. Malins and Mr. Cecil Russell, for the persons representing Jones's estate, explained that these words were an extrajudicial expression of opinion. There were only 890 shares in the company on which a call could be made; and of these 890, 500 were held by Jones's estate. A call had been made upon the shares held by Jones's estate and paid; and at the time when the official manager made the application to Vice Chancellor Stuart in the suit, the estate of Jones was, in fact, a creditor of the company. Vice Chancellor Stuart thought the motion vexatious, and said it was so improper that the official manager's costs ought not to be allowed as against Jones's estate. Jones's estate held so large a proportion of the shares in the company that the costs of the proceedings before Vice Chancellor Kindersley, including the motion of the official manager before Vice Chancellor Stuart, would, to the extent of ten eighteenths, fall upon Jones's estate; and it was in the hope that Vice Chancellor Kindersley might not allow the costs of the official manager of the motion before Vice Chancellor Stuart, against Jones's estate, in the winding up of the company, that the words complained of were added.

Mr. Greene and Mr. G. Lake Russell, for other parties interested in Jones's estate, argued on the same side, that to enable Vice Chancellor Kindersley to decide on the merits of the motion before Vice Chancellor Stuart, the whole case would have to be re-argued; but Vice Chancellor Kindersley would by this order sufficiently see the expression of Vice Chancellor Stuart's opinion.

LORD JUSTICE KNIGHT BRUCE.-Through an accident a judicial declaration of opinion has been pronounced by one of the Vice Chancellors as to a matter not within his jurisdiction, but belonging to the jurisdiction of another Vice Chancellor. Assuming all the merits to be with the declaration, there was not, as I think, jurisdiction, according to the constitution of the Court, to pronounce it. I think, therefore, in effect, what is asked by this notice of motion should be granted, and that the costs of this motion should be paid by the parties, or some of the parties, in the cause of Jones v. Jones. We give no opinion, favourable or unfavourable, as to the merits of the question to be tried before Vice Chancellor Kindersley.

LORD JUSTICE TURNER.-I ventured to say, in the course of the argument, either this expression of opinion is extra-judicial or it is judicial. If it is extra-judicial, it clearly ought not to have found its way into the order of the Vice Chancellor. If it is judicial, I cannot see any jurisdiction to make it. It is said that Jones's estate, he being a shareholder in this concern, will be affected by Mr. Turquand's costs of this application being paid out of the assets of the company, and thereby Jones's estate be charged with a certain portion, say ten-eighteenths, of those costs. But, of course, that is a matter entirely in the jurisdiction of the Vice Chancellor, whether Jones's estate shall or shall not be so chargeable. If Jones's estate is injured by the application having been improperly made by Mr. Turquand, as, for instance, if Mr. Turquand, having a special power to take any particular course, chooses of his own will to take another and a different course, no doubt the Vice Chancellor will take care that Jones's estate is not saddled with those costs. But that is a question entirely in the jurisdiction of the Vice Chancellor in the administration of the winding up. I do not see on what possible ground another Vice Chancellor could judicially interfere with the course of proceeding under the winding up. No doubt, affidavits will be brought before Vice Chancellor Kindersley to shew what the opinion of Vice Chancellor Stuart was; but that is not to appear upon the face of the order so as to preclude