knowing the details of the account, but I have no doubt that the chief clerk will so frame his certificate that the matter may be brought before the Court in the most convenient way.

*451

*WALMSLEY v. FOXHALL.

1863. June 2. Before the LORDS JUSTICES.

A decree declared A. and B. to be entitled for their lives as tenants in common, with cross remainders between them. Upon the death of A., which took place more than five years after the decree, one of the parties entitled in remainder applied for leave to appeal against the declaration as to cross remainders. Held, that as the proper time for deciding whether there were cross remainders had not arrived when the decree was made, leave to appeal ought to be granted.1

THIS was a petition for leave to present a petition of rehearing after the expiration of five years from the time of making the decree.

Edward Foxhall, the testator in the cause, died in 1815, having made his will, the general scope of which was that, after bequeathing various legacies to his six children and other persons, he gave his residuary estate in trust to pay the income to the testator's wife for her life, and after her death to divide the income among his said children in equal proportions, share and share alike, during their respective natural lives, and after the decease of all the children upon trust for the testator's grandchildren in equal shares. There was a proviso that in case.of the death of any of the said children leaving issue, the respective legacies, share and interest of the child or children so dying should immediately become vested in his or their issue.

The testator left the six children named in his will surviving him, and all of them attained twenty-one. The testator's widow died in 1842, and Eleanor, one of the children, died in 1853, a spinster.

This suit having been instituted to carry into execution the trusts of the will, a decree was made on the 11th of November, 1854, by

1 See 2 Dan. Ch. Pr. (4th Am. ed.) 1476, and note (3).

which it was declared that, according to the true construction of the will, the surviving children of the testator were entitled to the whole income since the death of Eleanor, in equal shares for their lives, with cross remainders between them.

* Edward Martin Foxhall, another of the testator's chil- *452 dren, died in December, 1862, leaving one child surviving him. This child and her husband were the plaintiffs in the cause.

The plaintiffs were now desirous of having the words "with cross remainders between them" omitted from the decree, contending that, on the true construction of the will, Edward Martin Foxhall's share of the income did not go to the surviving children of the testator, but to E. M. Foxhall's own issue.

Mr. Hobhouse and Mr. Nalder, for the petitioners. - We submit that, although the ordinary time for appealing has elapsed, the special circumstances of this case will induce the Court to give leave to appeal. The decree was irregular in deciding a future right. The question could not be fairly argued at that time, for nobody could know how far he had any interest in opposing the. making of the declaration now complained of.

Mr. Baggallay, Mr. W. W. Cooper and Mr. Rasch, appeared for different respondents. In opposition to the application, it was contended that there were no special circumstances to take the case out of the operation of Consolidated Order XXXI., rule 1.

-I

THE LORD JUSTICE TURNER. — I am of opinion that the intention of the order was to prevent questions which have been decided by the Court in the ordinary exercise of its jurisdiction from being unsettled by an appeal after five years, unless under special circumstances. In the present case there has been a *453 departure from the course of the Court by the insertion in

the decree of a declaration as to future rights, and I think that leave to appeal ought to be given.

THE LORD JUSTICE KNIGHT BRUCE.-I am of the same opinion.

[351]

In the Matter of THARP'S ESTATE.

1863. June 2. Before the LORDS JUSTICES.

A testatrix devised real estate to her nephews A., B., and C. for their respective lives, share and share alike, and after the death of each or any of them his share to go to his first and other sons successively in tail male, with remainder to his daughters as tenants in common in tail, and in default of such issue "to such of my said nephews as shall survive and to their and his issue in the manner hereinbefore mentioned; and in case of the death of all my said nephews and their issue, I devise my said estate to my right heirs."

A. died, leaving a son; B. died next, without issue; C. died last, leaving a son. Held, reversing the decision of the Court below, that B.'s share did not belong to C.'s son alone, but to A.'s son and C.'s son in moieties.1

THIS was an appeal from a decision of Vice-Chancellor STUART on the construction of a will.

Eliza Mary Tharp, by will dated the 3d of August, 1830, devised to her trustees a plantation in Jamaica, with the slaves, cattle, stocks and plantation utensils thereon, being or thereunto belonging, upon trust that they should manage the estate, and after payment of all charges, "do and shall pay over the net proceeds to my nephews Thomas Newman, Esq., and Ben. Harding, Esq., the two eldest sons of my late brother Richard N. Harding Newman, and John Harding the son of my late brother John Harding, for and during the term of their respective natural lives, share and

share alike, and to their respective assigns; and in case of * 454 the death of* all, any or either of my said nephews, then

that my said trustees shall pay the net proceeds, or their or his share thereof, unto the eldest son of such of my nephews lawfully begotten or to be begotten, and the heirs male of the body of such first son issuing; and in default of such issue shall pay the same to the second, third, fourth and all and every other son or sons of my said nephews lawfully begotten or to be begotten, severally and respectively, and in remainder one after the other as they shall severally be in priority of birth, and the heirs male of the body and bodies of all and every such son and sons issuing, the elder of such sons and the heirs male of his and their body and bodies being always preferred and to take before the younger 1 See Post, 458, note.

of the said sons and the heirs male of his and their body and bodies issuing; and for want and in default of such issue, to pay the same to the daughter or daughters of my said nephews, share and share alike, and to the heirs of their bodies lawfully begotten, always giving a preference to the males over the females; and in case of the death of any or either of my said nephews without lawful issue, male or female, then to pay over the net proceeds to such of my said nephews as shall survive, and to their and his issue in the manner hereinbefore mentioned; and in case of the death of all of my said nephews and their issue, then I give and devise my said estate to my right heirs for ever."

The testatrix died in 1831. Her three nephews Thomas Newman, Ben. Harding, and John Harding survived her.

Thomas Newman died in 1856, leaving Thomas Harding Newman his eldest son.

Ben. Harding died in September, 1859, without issue.

* John Harding died in 1862, leaving John George Hard- * 455 ing his only son.

In 1835 the compensation payable under 3 & 4 Will. 4, c. 73, for the slaves, amounting to 22727. 188. new 37. per cent annuities, was transferred to the surviving trustee of the will. In 1861 his representative paid it into Court under the Trustee Relief Act. By an order made in June, 1861, one-third of the fund was transferred to Thomas Harding Newman; and it was ordered that the dividends on the remaining two-thirds should be paid to John Harding for life or until further order.

In 1863 John George Harding presented his petition, asking for payment of the remaining two-thirds to him, and Vice-Chancellor STUART on the 24th of April made an order as prayed, from which Thomas Harding Newman appealed.

Where there is a gift over on

Mr. Kekewich, for the appellant. the death of all the takers and failure of their issue, cross remainders will be implied. Atkinson v. Barton, (a) Doe v. Webb, (b) Livesey v. Harding, (c) Taaffe v. Conmee, (d) Jarman on Wills. (e) But if the case be held to turn on the meaning of the word survive, this is a case where "survivor" will be read "other."

(a) 10 W. R. 281.

(b) 1 Taunt. 234.

(c) 1 Russ. & Myl. 636.

VOL. I.

(d) 8 Jur. (N. S.) 919.

(e) Vol. 2, ch. 42, p. 510 (3d ed.).

23

[353]

Doe v. Wainwright, (a) Cole v. Sewell, (b) Wilmot v. Wilmot, (c) Holland v. Allsop, (d) Smith v. Osborne. (e)

* 456

*Mr. Greene and Mr. Jones Bateman, for the respondent. -The language of the will takes this case out of the authorities referred to on the other side. There is no occasion to resort to implication here: any implied estate would arise only after the express limitation to survivors and their issue is exhausted, and that limitation we contend provides in express terms for the events which have happened. If the testator intended what we say he did, what more apt words could he have used to express his intention?

[THE LORD JUSTICE KNIGHT BRUCE. Suppose the nephew, who died without issue to have outlived the others, how do you say that the estate would have gone?]

Probably the Court would in that case have implied a limitation, which would carry the estate to the issue of the others; but that would not interfere with any of the express limitations. The word "survivors" is not used here, but a verb defining exactly the class which is to take, and there is no instance of the word “survive" having been taken in any but its proper meaning. The general rule applicable to the present case is laid down by Lord CRANWORTH in Gundry v. Pinniger (g) and by the Lord Justice KNIGHT BRUCE in Bird v. Luckie, (h) to adhere as far as possible to the natural meaning of a testator's language, and not to depart from it on a mere conjecture, however probable, that it does not express his intentions. There is no case of cross remainders being implied so as to interfere with any cross remainders expressly limited Clache's Case, (i) and in Atkinson v. Barton, (k) the Lord Justice TURNER says, "I take the general principle upon

which the implication of cross remainders is founded to be, *457 that the Court upon examining the will finds that there * has been some omission, and it therefore introduces by implica