The Estate of Joseph Harrison, Owner; Mary Harrison, Petitioner

• Jurisdiction: Ireland
• Judgment Date: 25 January 1879
• Date: 25 January 1879
• Court: Chancery Division (Ireland)

Appeal.

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

IN THE MATTER OF THE ESTATE OF JOSEPH HARRISON,

OWNER;

MARY HARRISON,

PETITIONER

Ridgeway v. Munkittrick 1 Dr. & War. 84, 93.

Campbell v. Sandys 1 Sch. & Lef. 281, 292.

Roche v. RocheUNK 2 J. & Lat. 561, 568.

Edwards v. EdwardsENR 12 Beav. 97.

Rhodes v. RhodesENR 27 Beav. 413.

Foster v. Wybrants I. R. 11 Eq. 40, 45.

In re Pattison's Trusts Not reported.

In re Carpendale's Trusts Not reported.

In re Biron's Contract 1 L. R. I. 258.

Westwood v. SoutheyENR 2 Sim. (N. S.) 192.

Re Merceron's TrustsELR 4 Ch. D. 182, 186.

Hopkins' TrustsELR 9 Ch. D. 131, 135.

Davenport v. Hanbury 3 Ves. 257.

Leigh v. Norbury 13 Ves. 340.

Carter v. BentallENR 2 Beav. 551.

Weldon v. Hoyland 4 De G. F. & Jo. 564.

Roche v. RocheENR 2 Jo. & Lat. 561.

Freeman v. Parsley 3 Ves. 421.

Re Denis' Trusts I. R. 10 Eq. 81.

Re Dixon's Trusts I. R. 4 Eq. 12.

Dalzell v. WelchENR 2 Sim. 319.

Re Dixon's Trusts I. R. 4 Eq. 1.

Cancellor v. CancellorENR 2 Dr. & Sm. 199.

Dixon's Trusts Ir. R. 4 Eq. 13.

Biron's Contract 1 L. R. I. 258.

Will — Construction — "Issue" — Whether equivalent to "children" or to "descendants" — Uniformity of interpretation.

Appeal. IN THE MATTER OF THE ESTATE OF JOSEPH HARRISON, 1878. OWNER; MARY HARRISON, PETITIONER (1). Dec. 17. Will--Construction-" Issue" - Whether equivalent to " children" or to 1879. Jan. 25. " descendants "-Uniformity of interpretation. Where the term " issue " has been frequently and clearly restricted by a testator to the meaning of " children," and nowhere previously used by him as necessarily equivalent to " descendants," the Court, favouring the principle of uniform interpretation laid down in Ridgeway v. Munkittrick (1 Dr. & War. 92), will not put an expanded construction upon the word in an ultimate gift of one legacy, especially where the legatees take interests vesting at birth, and. not contingent upon surviving a tenant for life. H. devised lands to his eldest son G. for life, with remainder to "all and every such son and sons, daughter and daughters " of G. attaining twenty-one, as G. should appoint ; and in default of appointment, equally, and if but one " such child," to such one " child " ; and in default of " such issue" of G. living at his death, or, there being such, if they should all die under twenty-one, then over. The will also gave other lands to the testator's four younger sons, and settled them by reference to the limitations in the case of G. and his " issue," the word " issue " being plainly used throughout (some twenty times) in the sense of " children." The testator then charged one set of the lands with £4000 for each of his daughters R. and M., the interest to be paid her till marriage, and then the principal ; if either daughter died. unmarried, the survivor's fortune to be increased to £5000, divisible at her death unmarried among H.'s then surviving younger sons, or, if they should then be all dead, among their " issue " equally. Both daughters died without having been married, one of them surviving all her younger brothers : Held, on appeal (reversing the decision of Flanagan, J.), that " issue" in the ultimate gift was to be construed as " children," and not as " deÂscendants." APPEAL by Mrs. Mary Leeche and Mrs. Elizabeth Manders, from an order of Judge Flanagan, of the 24th June, 1878, so far as it declared with respect to the ultimate trust of the legacy conÂtained in the will of Michael Harrison, of the 16th July, 1811, forming the subject of the order, and now represented by £1929 lls. 10d., Government new Three per cent. Stock, and £57 3s. 2d. (1) Before BALL, C., and DEASY and Firs GIBBON, L.JJ. VoL. III.] CHANCERY DIVISION. cash dividends thereon, " that the word issue' is not to be conÂstrued as children' only, and that all issue of the testator's sons Thomas, Joseph, William, and Samuel, who were alive at the testator's death, or who were born after his death, and in the lifeÂtime of Mary Harrison, the survivor of the testator's two daughters, became entitled to the said sum of stock and cash in equal shares." The testator, who died in 1812, devised his lands of BallinaÂhind to trustees, upon trust to permit and suffer his eldest son George to receive the rents for his life, and after his decease " to the use of all and every such son and sons, daughter and daughters" of George absolutely, as George should by deed or will appoint, if they should attain twenty-one, and in default of such appointÂment, equally, " and if there should be but one such child " who should attain twenty-one, the entire to go to such one " child." In default of " such issue " of George living at his death, or, there being such, if he, she or they, should die before respectively attainÂing twenty-one, then to the use of such of the testator's younger sons Thomas, Joseph, William and Samuel as, upon the happenÂing of such contingency, should be the eldest surviving son, " for such estate, and with such limitations to his issue lawfully begotten, and with such power of appointment, as is hereinbefore limited with respect to the said George and his issue." The testator then proceeded to devise his lands of Lota and others, in the city of Cork (subject to certain charges thereinafter mentioned), upon trust to permit and suffer his second son, Thomas, to take the rents for life, " with such remainder to the -son and sons, daughter and daughters of the said Thomas, lawfully to be begotten, his, her and their heirs, executors and adminisÂtrators, on such contingency and with the like power of appointÂment, and with such provision for want of any appointment, as is hereinbefore limited with respect to my son George and his issue." Other denominations of lands were next successively given to the testator's third, fourth and fifth sons respectively, with a form of limitation in each case substantially identical with that last mentioned, and made by reference to that " hereinbefore limited with respect to my said other sons and their issue." And in case any of his four younger sons should die without leaving " such issue as aforesaid" living at his death and attaining twenty-one, 116 LAW REPORTS (IRELAND). [L. R. I. Appeal. the testator devised the lands to which the son so dying should be 1878. entitled to such of his said four younger sons as should then be the 1n re eldest surviving, " for the like estate and with such remainder to ESTATE. S his child or children, on such contingencies and with such power of appointment and provisions respecting the same, as herein conÂtained respecting that part of my property originally bequeathed to his use." And if, at the time of the death of any of his said four sons without leaving "such issue as aforesaid " at his decease who should attain twenty-one, none of the others of his four said sons should be living, then the share to which the son so dying would be entitled should go to the " issue " of the last mentioned sons equally, on their attaining twenty-one ; and if there should be but one "such child of the issue of my said sons" who should attain twenty-one, the entire to go " to such one child." And in case all the testator's said sons should die without leaving " such issue as aforesaid," or "such the issue " of all of them should die without attaining twenty-one, then upon trust that all his lands should go to his daughters Rachel and Mary equally, if then living, " for such estate and with such remainder to their respective issues and with such power of appointment as hereinbefore menÂtioned." And if there should be but one daughter then living, the entire to go to her in like manner ; and if neither daughter should be then living, the entire to go to such of their " issue " as should attain twenty-one ; and if both daughters should die without leaving " such issue as aforesaid" who should attain twenty-one, then to the testator's heirs and personal representatives. The will next provided that in case any of the testator's said sons should die leaving " such issue as aforesaid," the rents of his lands should be applied towards the maintenance and education of " such his issue," as therein mentioned. After creating' leasing, jointuring and portioning powers, and giving annuities to other daughters, the testator bequeathed £4000 to his trustees, on trust to pay the interest to his daughter Rachel from time to time, and the principal on her marriage, and a similar sum upon like trusts for his daughter Mary, both sums being charged upon the lands devised to Thomas ; and in case of the death of either of his daughters unmarried, the testator directed that the fortune of the survivor should be increased to £5000, and that the remaining VoL. III.] CHANCERY DIVISION. 117 £3000 should go to such of his said four younger sons as should Appeal. be then living, equally, and, if but one of them should be then liv- 1878. bag, to such one. The next clause in the will was that upon which In re limuasoN'i the question in the case arose, as to the meaning of the word EsTATE. "issue," and it was as follows :- " And if the survivor of my said daughters sball die unmarried, then the entire of such sum as she shall be entitled to shall go in like manner among such of my said last mentioned sons as shall be then living ; and if they shall be all dead at the time of the decease of either of their said sisters, or of the survivor of them unmarried, then the entire to go equally among their issue share and share alike." The will concluded by giving a few pecuniary legacies, and appointing the testator's son Thomas residuary devisee and legatee. Mrs. Elizabeth Harrison, widow of the testator's son Samuel, made an affidavit in the matter as to the state of the family, from which it appeared that the testator was survived by his four sons Thomas, Joseph, William and Samuel, and by his daughters Rachel and Mary, and that some of them were married at the...