Their Lordships after conferring with the registrar said, that, according to the course of the Court, the applicant must pay the costs of the application.

Ordered, that defendant Lady H. C. Bentinck do pay to the next friend of the plaintiff and to defendants the Duke of Portland and Lord H. C. Bentinck their costs of this application, to be taxed, &c.

Reg. Lib. 1363, B. fol. 1427.

* 605

*WALMSLEY v. FOXHALL.

1863. June 27, 29. Before the LORDS JUSTICES.

A testator gave legacies to his children absolutely, and then gave the income of his residuary estate to his wife for her life, and directed that after her death the income should be divided equally among his said children during their respective lives, and after the death of all his children he directed the capital to be divided equally among all his grandchildren; provided, nevertheless, that in case of the death of any of his said children, leaving lawful issue, the respective legacy, share, and interest" of the child or children so dying should immediately thereupon become vested in such his, her, or their issue respectively. Held, that upon the death of a child leaving issue before the period of distribution the income of that share of the residue of which the child had been tenant for life was payable until the period of distribution to the issue as joint tenants, and not to the surviving children of the testator.

66

THIS was an appeal from part of an order of the Master of the Rolls declaring the construction of the will of Edward Foxhall dated the 14th of April, 1813.

The testator gave all his property to his executors, upon trust to pay certain legacies and life annuities, including a considerable legacy to each of his six children by name absolutely. He then directed the income of the residue to be paid to his wife for her life, and proceeded as follows:

"And from and after the decease of my said wife, then I do hereby direct that the whole of the said rents and profits of my said leasehold estates and premises, the interest, dividends, and

proceeds of the said capital, stocks or funds, and of all other my estate and effects, shall be upon further trust that my surviving executors or executor, his executors or administrators, shall and do from time to time as the same shall become due and payable divide and pay the same unto and among all my said children in equal proportions, share and share alike, for and during their respective natural lives, and from and immediately after the decease of all my children, then my will is, and I do hereby further direct, that the whole of my said leasehold messuages or tenements, buildings, and premises, and other effects, shall be forth- *606 with sold and disposed of by my surviving executors or

*

executor, his executors or administrators, either by public auction or private contract, for the most money that can or may be reasonably gotten for the same; and as to, for and concerning the money to be produced by such sale or disposition, the said remaining capital, stocks or funds, and other moneys or securities which shall or may be then due and owing to the said trust estate, and all other the residue and remainder of my estates and effects whatsoever and wheresoever, I give and bequeath the same, and every part thereof, unto and among all my grandchildren in equal proportions, share and share alike, to and for their several and respective absolute use and benefit, and if there shall happen to be but one, then to such only grandchild, his or her executors, administrators, or assigns; provided nevertheless, and I do hereby expressly declare, that in case of the death of any or either of my said children leaving lawful issue, the respective legacy, share and interest under this my will of the child or children so dying shall immediately thereupon go to and become vested in such his, her, or their issue respectively, any thing herein contained to the contrary notwithstanding."

The testator died in 1815 leaving six children; all of them survived the widow, who died in 1842. One of the children died without issue in 1853, and on the 11th of November, 1854, an order was made in this suit declaring that the surviving children of the testator were entitled to the income in equal shares for their lives, with cross remainders between them.

Another child of the testator died in 1862, leaving a daughter, the plaintiff in this suit, who obtained leave to appeal *607

from the above order, so far as it declared that there were cross remainders between the children. (a)

Taking the

Mr. Hobhouse and Mr. Nalder, for the appellants. gift to the issue literally, it gives over to them absolutely the share of which their parent was tenant for life. This, however, would conflict with the previous gift of the whole fund to the grandchil dren and we do not press it. We contend rather that it was intended to dispose of what was not in terms previously disposed of, and to carry to the issue of a deceased child until the period of distribution the income of that share of which the child was tenant for life.

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Mr. Selwyn and Mr. Rasch, for three of the surviving children. The original gifts to the children are for life only, and at the death of the survivor the fund is given over as a whole. Thus far it is clear that there would be cross remainders. Neighbour v. Thurlow. (b) The proviso alone raises a ground for argument. Now there are benefits given by the will sufficient to satisfy the terms of the proviso, and this being so, there is no reason for straining the language of the proviso, so as to make it apply to the residue, to which its wording is inappropriate, for a deceased child having only possessed a life-estate had no "share and interest capable of going over. We do not say that the words "legacy, share and interest" would not have applied to the residue if transmissible interests in the residue had been first given, or if there had been no other gifts to the children except their life-interests in the residue. The word share will apply to a pecuniary legacy, and there being transmissible gifts to satisfy the proviso *608 it ought not to be stretched so as to apply to interests not transmissible. Alt v. Gregory, (c) Armstrong v. Eldridge, (d) Pearce v. Edmeades. (e)

*

Mr. Baggallay and Mr. Bagshawe, for other parties in the same interest. Apart from the proviso, the will is perfectly clear; the applicability of the proviso to the residue is at best extremely

(a) Ante, p. 451.

(b) 28 Beav. 33.

(c) 8 De G., M. & G. 221.

(d) 3 Bro. C. C. 215.

(e) 3 Y. & C. 246.

doubtful, and what is clear should not be cut down by what is doubtful.

Mr. W. W. Cooper, for other parties in the same interest, referred to Vanderplank v. King, (a) Begley v. Cook, (b) and Malcolm v. Martin. (c)

Mr. Hobhouse, in reply. I submit that the proviso does not apply to the absolute gifts, for it is mixed up with dispositions exclusively applicable to the residue. At all events, the words legacy, share and interest must apply to the interests in the residue, for the words share and interest have no meaning as applied to the particular gifts to the children, which are absolute. The construction for which we contend gives effect to the most reasonable and natural scheme, besides being, as we say, consistent with the proper construction of the language used.

*

* 609

THE LORD JUSTICE TURNER.-It is impossible to come to a perfectly satisfactory conclusion as to the construction of an instrument worded like the present will, but my learned brother and myself have independently arrived at the same conclusion upon it. The first question is, what meaning is to be attributed to the words" in case of the death of any or either of my said children leaving lawful issue." They cannot be confined to death in the lifetime of the testator, for the direction is, that "immediately thereupon" the legacy, share, and interest of each child so dying shall become vested in his or her issue, which could not take place upon death in the lifetime of the testator. Then arises the question, whether these words were intended to affect the capital of the shares in which the deceased children had life-estates. I think not, and for this reason, that if they affect the capital, we have a direction that immediately on the death of a child who leaves issue, the share of capital in which that child had a life-interest shall go over to the child's issue, which is inconsistent with the previous directions to keep the capital together till all the children are dead, and so contravenes the scope of the will. If, then, these words are not confined to death in the lifetime of the testator, and do not affect the capital, they must virtu(a) 3 Hare, 1. (b) 3 Drew. 662.

(c) 3 Bro. C. C. 49.

ally be struck out of the will, unless they be held to take effect by way of extension of the interests given to the children. The difficulty in doing this arises from the words "legacy, share, and interest." If the word "interest" had alone been used, there would, I think, have been little doubt upon the point, and, in my opinion, the testator must have intended to say "legacy, that is to say, share and interest." It appears to me, therefore, that this clause is intended to apply only to the interest of the share which the deceased child took for life, and that it carries the income of that share to the issue of the child.

The question remains, who are included under the word "issue"? I cannot see enough in this will to restrict the generality of that word, and I therefore think that the children of the plain*610 tiff take, concurrently with her as joint-tenants, the income of that share to which the plaintiff's mother was entitled for life.

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

LODGE v. PRICHARD.

1863. June 23. July 23. Before the LORDS JUSTICES.

The testator was a partner in a trading firm, and shortly after his death the surviving partner became bankrupt. A dividend was paid on the joint debts, and after the joint estate had been fully distributed a decree was made for the administration of the testator's estate. Held, that the joint creditors were not entitled to prove under the decree for the unpaid residue of their debts pari passu with the testator's separate creditors, but must be postponed to them.'

1 See Kellock's Case, L. R. 3 Ch. Ap. 777; Allen v. Wells, 22 Pick. 453455; McCulloh v. Dashiell, 1 H. & Gill, 96; Dalghren v. Duncan, 7 Sm. & M. 280; Simmons v. Tongue, 3 Bland, 356; Woddrop v. Ward, 3 Desaus. 203; Hall v. Hall, 2 McCord Ch. 302; Wilder v. Keeler, 3 Paige, 167; Morgan v. His Creditors, 20 Martin (La.) 599; Payne v. Matthews, 6 Paige, 19; Bowden v. Schatzell, 1 Bailey Eq. 260; Cammack v. Johnson, 1 Green (N. J.) 163; Crockett v. Crain, 33 N. H. 542; Jarvis v. Brooks, 23 N. H. 136; Murray v. Murray, 5 John. Ch. 50; Merrill v. Neill, 8 How. (U. S.) 414; Bell v. Newman, 5 Serg. & R. 93; Walker v. Eyth, 25 Penn. St. 216; Morrison v.