Re Dunlevy's Trusts

• Jurisdiction: Ireland
• Judgment Date: 05 June 1882
• Date: 05 June 1882
• Court: Chancery Division (Ireland)

Appeal.

Before LAW, C., and DEASY and FITZ GIBBON, L.JJ.

IN RE DUNLEVY'S TRUSTS.

Smith v. OsborneENR 6 H. L. C. 376, 393.

Williams v. James 20 W. R. 1010.

In re Jackson's Trusts 14 Ir. Ch. R. 472.

Henry v. MorganELR L. R. 3 Eq. 152.

Wake v. Varah 2 Ch. Div. 348.

Beckwith v. BeckwithUNK 46. L. J. (Ch.) 97; 25 W. Rep. 282; 36. L. T. (N. S.) 128.

Walker's Estate 12 Ch. Div. 205.

Beckwith v. Beckwith 46 L. J. Ch. 975.

Pomfret v. Graham 19 Ch. Div. 186.

Crowder v. StoneENR 3 Russ. 217.

Davidson v. Dallas 14 Ves. 578.

Cooper v. MacdonaldELR L. R. 16 Eq. 258.

Smith v. Osborne 6 H. L. Cas. 376.

Beckwith v. Beckwith 46 L. J. Ch. 97.

Waite v. LittlewoodELR L. R. 8 Ch. App. 70.

Badger v. GregoryELR L. R. 8 Eq. 78.

Re Keep's WillENR 32 Beav. 122.

De Garagnol v. LiardetENR 32 Beav. 608.

Lucena v. Lucena 7 Ch. Div. 255.

Will Construction "Survive" Class.

Tor- IX.] CHANCERY DIVISION. 349 ht RE DUNLEVY'S TRUSTS (1). Will-Construction-" Survive"-Class. A testatrix bequeathed two sums of money upon trust for her nieces M. and E. respectively. The legacy given to E. was bequeathed upon trust for her for life, for her separate use, and after her decease, for her children, if any, living at her death, as she should appoint, and in default of appointment equally among them, and if but one child, the whole to be in trust for such only child. The legacy to M. was bequeathed upon similar trusts ; and the testatrix directed that in case her said nieces, or either of them, should die without leavÂÂing issue, the legacy of the niece so dying should be equally divided between " the children of whichever of my said nieces shall happen to survive" and the children of C. in equal shares, on attaining twenty-one years or day of marÂÂriage ; and if but one child, issue of such her surviving niece or of C., then living, the share of the niece so dying without issue to go to such only child of her surviving niece or of C. There was no express gift over of the whole fund in the event of there being no child to take it. M. died in 1877. E. died in 1881, without issue, and at the time of her death there were living children of M. and children of C. :- Held (by LAw, C., and DEASY, L. J., diss. FITZ GIBBON, L. J.), affirming the decision of Chatterton, V. C., that the children of C. were entitled to the whole of the legacy so bequeathed to E., to the exclusion of M.'s children ; for that the words " whichever of my said nieces shall happen to survive" must bear their literal meaning, and could not be construed as equivalent to "the other." Held, by FITZ GIBBON, L. J., that the intention of the testatrix was to proÂÂvide, in the alternative, for the case (which happened) of only one niece dying without issue, and that the words "whichever of my said nieces shall happen to survive " had reference to the other niece not so dying ; a clue to the interÂÂpretation of the bequest being furnished by its containing in effect a gift over in the event (which did not happen) of both nieces dying without leaving issue. APPEAL by Emily Jane Heiden from an order of Chatterton, V. C., of the 21st December, 1881, made upon a petition under the Trustee Relief Act, declaring the fund in Court divisible beÂÂtween the Petitioner Anne Peppard and her sister Penelope Roe, as children of George Corker, deceased. The facts are fully stated (1) Before Lew, C., and DEASY and Fm GIBBON, L.JJ. 350 LAW REPORTS (IRELAND). [L. R. I. Appeal. in the report of the case in the Vice-Chancellor's Court, 7 L. It. Mr. Jackson, Q. C., and Mr. G. Hart, for the Respondents. The following cases, not mentioned in the report below, were referred to : Smith v. Osborne (1); Williams v. James (2) ; In re Jackson's Trusts (3) ; Henry v. Morgan (4). June 5. LAW, L. C. :- The controversy in this case is as to the true construction of the will of Judith Dunlevy, dated the 19th September, 1833. The testatrix had two nephews and two nieces, who seem to have been the chief objects of her bounty, viz., her nephews George and William Corker, and her nieces Elizabeth Ellard and Catherine Mayer. Accordingly, after bequeathing 1200 to her nephew George, and providing that if he should die in her lifetime, the legacy should go to his children, or such of them as should attain twenty-one or marry, and that if he left no child, the legacy should be paid to such of the children of her two nieces Elizabeth and Catherine as should be " then surviving," the testatrix beÂÂqueathed a sum of 3800 to trustees, upon trust to invest the same and pay the income of 1400, part of the fund, to her niece Catherine Mayer, and the income of 1200, further part of the fund, to her niece Elizabeth Ellard-in each case for the niece's life, for her separate use-declaring that, upon the death of each, her share of the trust fund should go to her children living at her death, in such shares as she should appoint ; and in default of appointment, to her children equally, or if but one, then " to such her only child." Then follows the passage on which the question here arises :- " And in case my said nieces, or either of them, shall die without leaving any child her surviving, then it is my will that her share of the said sum of (1) 6 IL L. C. 376, 393. (3) 14 Ir. Ch. R. 472. (2) 20 W. R. 1010. (4) L. R. 3 Eq. 152. VOL. IX.] CHANCERY DIVISION. 351 3800, with any interest then due, or growing due thereon, shall go to and be Appew, equally divided between the children of whichever of my said nieces shall happen 188°. to survive, and the children of my said nephew George Corker, share and share - re alike, upon their respectively attaining the age of twenty-one years, or day of DuNLEVY's marriage ; and if there shall happen to be but one child, issue of such my sur- Tuusis. viving niece, or of my said nephew George Corker then living, it is my will that the share of the said sum of 3800 of my niece, so dying without issue as aforesaid, shall go to such only child of my surviving niece or my nephew George Corker." The testatrix subsequently declared the trusts of the remaining part (1200) of the fund, settling it on her nephew William Corker for life, and after his death upon his children, but nothing turns on that part of the will. Now what happened was this-First, Catherine Mayer died in the year 1877, leaving three children Emily Jane Heiden (the Appellant here), Joseph Thomas Mayer, and Annette Elizabeth Mayer, all of whom attained twenty-one. Next, George Corker died, leaving two children-viz., Mrs. Penelope Roe and Mrs. Peppard, both aged twenty-one, and married. And, lastly, ElizaÂÂbeth Ellard died (on the 17th January, 1881) without leaving any child. Her share of the trust fund was then lodged in Court by the trustees, under the Trustee Relief Act ; and Mrs. Peppard, joined by her husband, applied to have it paid out to her and her sister Penelope Roe, as being the children of George Corker, and as such exclusively entitled thereto. This application was opposed by the present Appellant, Mrs. Helden, one of the chilÂÂdren of Catherine Mayer, who contended that, though Catherine Mayer died before Elizabeth Ellard, yet still, as she left children, viz., the Appellant and a brother and sister, who had all attained the prescribed age, they were entitled to a share of the fund as well as George Corker's two children, and accordingly, that it was to be divided into five parts instead of two. The Vice-Chancellor decided that the children of George Corker were exclusively entitled to the fund, and so declared by an order dated the 21st December, 1881, from which Mrs. Heiden, one of the three children of CatheÂÂrine Mayer, has now appealed. The question as to the true construction of the word " surÂÂvivors," or words of similar import, in a clause like that now before us, is one which has long exercised Courts of Justice. The dispo Appeal. sition which is naturally felt by Judges so to read a testator's will 1882. as not to exclude any of those objects for whom they suppose he In re must have intended to provide have in many of the earlier cases DUNLEVY'S TRUSTS. led them to read " survivors " as simply meaning " others," even where there was nothing in the context sufficient to warrant such an interpretation of the word. I take it, however, to be now definitively settled, that where a fund is given to several persons, or to a class, in certain shares for life, with trusts as to the share of each for the legatee's children, and with a gift over of the share of any dying childless to the " survivors," or to those " who hapÂÂpen to survive," the words indicating survivorship, as part of the description of the persons to take under such gift over, must be read in their ordinary and natural sense, unless by the addition of an ultimate gift over of the whole fund, on failure of issue of all the original legatees, or some other equally conclusive context, it is clearly shown that such could not have been the testator's meaning. This, I think, is the result of the later authorities, such as Wake v. Varali (1) and Beckwith v. Beckwith (2), decided by the Court of Appeal in England. By the contingent gift over of the whole fund in a mass, in the event of all the original legatees dying childless, it is plainly shown that the testator meant the children to take in every other contingency ; and this can only be secured by implying trusts in the nature of cross-remainders beÂÂtween them, or, in other words, by taking "survivors" to mean " others." It seems, indeed, to have been the opinion of some that the circumstance of the accruing share being settled on the " surÂÂvivors" for life, and afterwards upon their children, in the same way as their original shares, was sufficient to show that actual survivorship of the persons so to take for life only under the gift over, with trusts for their children after them, could not have been intended, and that such settlement of the accruing share would per se justify the...