Will-Construction-Devise to Children on attaining Twenty-one-Time of Vesting.

A testator gave and bequeathed all his real and personal estate to his trustees upon trust to convey, assure and divide the same unto and amongst all his children in equal shares, as tenants in common, on their respectively attaining twenty-one; and in case of the decease of any or either of his said children without issue under that age, or before they should acquire vested interests therein, then the trustees were to convey, assure, pay and divide the shares of the children so dying to the survivors: Held, that the testator's children, on attaining twenty-one, acquired absolute vested interests in the real and personal estate.

The

This bill was filed for the specific performance of a contract for sale of a certain freehold estate, which the plaintiff alleged to have become vested in him upon his atttaining the age of twenty-one for an absolute and indefeasible estate of inheritance under the will of his father, Henry Wheable. bill stated that Henry Wheable, by his will, gave and bequeathed all his personal estate, and also all his messuages, lands, tenements, hereditaments and real estate whatsoever and wheresoever, unto his trustees to hold the same unto and to the use of his said trustees, their heirs, executors, administrators and assigns, upon certain trusts for the benefit of his wife during her life, which said trusts had wholly ceased and determined, and afterwards upon trust to convey and assure, pay, share and divide his said real and personal estate unto and amongst all and every his children and child then born, or thereafter to be born, in equal shares and proportions as tenants in common, and not as joint tenants, on their respectively attaining the age of twenty-one years. And in case of the decease of any or either of his said children without issue under the age of twenty-one years, or before they, he, or she should acquire vested interests or a vested interest therein, then he directed his said trustees to convey, assure, pay and divide the part, share, estate and interest, of such children or child so dying, of and in his said real and

personal estate unto and amongst the survivors of his said children and their respective heirs, executors, administrators and assigns, in equal shares and proportions if more than one, and if but one survivor, then the whole of such part, share, estate and interest to such only survivor, his or her heirs, executors, administrators, or assigns, to and for his and their own use and benefit; but in case any or either of his said children should die at any time, either before or after him, having issue, then and in such case the testator directed his trustees to convey, assure, pay, share and divide the part or parts, shares or share of them, him, or her so dying of and in his said real and personal estate unto and amongst the issue whom they or he should respectively have in equal shares and proportions, and to their respective heirs, executors, administrators and assigns, if more than one, and if but one, then the whole of each parent's respective share, estate and interest to such only child, his or her heirs, executors, administrators, or assigns, on their or his attaining the age of twenty-one years.

The bill stated that soon after the plaintiff attained his age of twenty-one a partition was made of the said testator's estate, so devised and bequeathed as aforesaid, between the plaintiff and the other children of the testator, and the trustees of the will had duly conveyed to the plaintiff, as his share thereof, the messuages or tenements, lands and hereditaments which he had since contracted to sell to the defendant.

The cause came on as a short cause, and the only question raised was whether the plaintiff was or was not entitled to an absolute estate of inheritance in the said property under his father's will.

Mr. Bethell, Mr. Palmer, and Mr. Karslake appeared for different parties interested.

The VICE CHANCELLOR.-The testator does not seem to me to have had quite an easy command of language. It appears that after having made a provision for his wife there is a trust for the trustees to convey and assure, pay, share and divide the real and personal estate amongst all the children in equal shares as tenants in common on their respectively attaining twenty-one. Nothing is plainer than that the testator intended, if

the children attained twenty-one, there should be a conveyance to them as tenants in common in fee. Now when he comes to the next sentence he says, "and in case of the decease of any or either of my said children without issue under the said age of twenty-one years, or before he or she shall acquire vested interests in the estates, then the trustees were to divide the shares of such children so dying amongst the survivors of them and their respective heirs, executors, administrators and assigns in equal shares. Now, when the testator uses the expression "under the age of twentyone," he expresses that which afterwards he thinks he has not expressed, and continues, "or before they, he, or she should acquire vested interests or a vested interest therein." The testator, in fact, uses different expressions but describes the same thing. It appears to me that nothing was necessary before attaining a vested interest but attaining twenty-one. In case of no issue under twenty-one, then there was to be a conveyance to the survivors. The testator's children, therefore, on attaining twenty-one, acquired absolute vested interests in the real and personal estate devised and bequeathed to them. Decree for specific performance.

Mr. Walpole and Mr. Sidebottom, for the petitioners.-This is a special application and made by parties who are all adult, with the consent of the purchaser. It would be a security to the purchaser if the purchase-money was paid into court, especially as it amounts to a sum of not less than 100,000l.

Mr. Kyle, for the trustees of the estates, supported the application.

Mr. Milne, for the purchaser, was willing to pay the money into court, if the Court thought proper to make the order.

The MASTER OF THE ROLLS said that to make such an order would be contrary to the ordinary rule of the Court. Could he, therefore, because the purchase-money was large, deviate from a rule established in cases where the purchase-money is small? The rule was not inflexible, and he believed that in several instances, where there has been special circumstances, he had been induced to deviate from it. In the present case he did not feel that he could, but the parties might, if they thought proper, apply to the Lord Chancellor.

A testatrix made the following bequest: "to the three children of B. 500l. each." At the date of the will and at her death there were nine children of B. Evidence was tendered to the effect that at the time when B. had three children the testatrix had made a will containing the same bequest; that when B. had six children she had made another will, containing the same bequest; that when B. had nine children she had made another will, containing the same bequest (the will in question being the fourth will), and that she, at all four times, knew the numbers of B.'s children :—Held, that on the assumption that this evidence was admissible (but without deciding that point) each of the nine children was entitled to a legacy of 5001.

This suit was instituted for the administration of the estate of Susanna Orr, and, under the usual reference made to the Master to inquire as to the legacies bequeathed by her will, the following question arose.

Susanna Orr, by her will, dated the 17th of December 1844, made the following bequests" To the three children of my niece Fanny Waring the sum of 500l. each." At the date of the will, and at the death of the testatrix, Mrs. Waring had nine children. The question was, what was the effect of the above bequest under these circumstances.

As to this point the Master, upon the evidence adduced before him, stated the following facts:-In 1825 Frances Grace Waring (being the person described as Fanny Waring) was married to Henry Waring. In 1831 Mrs. Waring had three children living, namely, Thomas Waring, Mary Louisa Waring, and Elizabeth Mary Waring; and in that year, the testatrix, with the knowledge that Mrs. Waring had then three children, made a will, whereby she made the following bequest :-"To the three children of my niece Fanny Waring 500l. each." In 1835 Mrs. Waring had another child, and in 1836 the testatrix, with the knowledge that Mrs. Waring had four children, revoked her first will, and made a second will, whereby she made a bequest in exactly the same words as those contained in the first will. Between 1836 and 1841 Mrs. Waring had five other children; and in 1841, the testatrix, with the knowledge that Mrs. Waring had nine children, made a third will, whereby she revoked her second will, and made a bequest in exactly the same words as those contained in the first will. Mrs. Waring had the same nine children at the date of the fourth and last will of the testatrix. On the 17th of December 1844 the testatrix, with the knowledge that her niece had the above-mentioned nine children, made her fourth and last will, in which was contained the bequest which was the subject of the present question. All the nine children survived the testatrix. Upon these facts the Master found that, upon consideration of the several matters aforesaid, he was of opinion that the said testatrix, by the bequest to the three children of her niece

Fanny Waring of the sum of 500l. each in her will contained, intended to give three legacies only, each of the sum of 500l., and that the persons referred to by her by the description of "the three children of her niece Fanny Waring," were the said Thomas Waring, Mary Louisa Waring, and Elizabeth Mary Waring.

This report was excepted to by the six younger children of Mrs. Waring, on the grounds that the Master ought not to have received evidence of the facts stated in his report, and that he ought to have found that each of the nine children was entitled to a legacy of 500l.

This cause now came on upon the exceptions and for further directions.

Mr. Russell and Mr. Charles Webster, for the exceptions.-First, each of the nine children is entitled to a legacy of 500l. The principle is that, where benefits are given to any number of children—as to the three children—of A, A. having a larger number of children, as four or five, at the date of the will, the Court will reject the number mentioned in the will, upon the presumption of mistake, and all the children of A. will be entitled to have their benefits-Scott v. Fenoulhett (1), Stebbing v. Walkey (2), Garvey v. Hibbert (3), Lee v. Pain (4), Morrison v. Martin (5). Secondly, parol evidence of intention, admitted by the Master, ought not to have been received by him. (They also raised, but afterwards abandoned, a question as to the competency of the witnesses examined before the Master.)

Mr. Bacon and Mr. Speed, for the report, contended, first, that extrinsic evidence was admissible to prove the intention of the testatrix, there being a latent ambiguity-Cheyney's case (6), Counden v. Clerke (7), Jones v. Newman (8), Hampshire v. Peirse (9), Price v. Page (10),

Beaumont v. Fell (11), Still v. Hoste (12), Selwood v. Mildmay (13), Doe d. Le Chevalier v. Huthwaite (14), Doe d. Hiscocks v. Hiscocks (15), Doe d. Thomas v. Beynon (16), Doe d. Allen v. Allen (17); and, secondly, that upon the admission of this evidence, it was clear that the intention of the testatrix was to benefit the three eldest children only.

KNIGHT BRUCE, V.C.- Evidence is clearly admissible to shew whether, when the will was made, Mrs. Waring had any children, and how many. It is proved or admitted, and, for every purpose in the cause, must be taken, that she then had nine children living, all born before the making of the will. The first question then is whether, upon the assumption of the inadmissibility, or of the absence, of other evidence to shew that the testatrix intended a benefit in favour of some only of the nine children, the bequest is void for uncertainty. I apprehend that such a construction would be unnecessarily harsh, and contrary to the sound principles of jurisprudence, and would be opposed to authority. I apprehend that, upon the assumption just mentioned, I am bound by authority to say that the bequest must be construed as if the word "three" had been omitted, or the word " nine" had been used.

Suppose, however, that evidence is admissible for shewing, and that evidence should be adduced whereby it is demonstrated, that the testatrix intended some only of the nine children to take; but that the evidence should be insufficient to shew which of them she intended to benefit, is the bequest then void for uncertainty? This is a question which I would rather not answer until I am obliged to do so, and I think that I am not under any such obligation in this instance. In the case before the Court, assuming the competency of all the wit

(11) 2 P. Wms. 140; a case which had been referred to with approbation in 6 Term Rep. 676, 7 Term Rep. 148, and 3 Taunt. 156.

(12) 6 Mad. 192.

(13) 3 Ves. 306.

(14) 3 B. & Ald. 632.

(15) 5 Mee. & W. 363; s. c. 9 Law J. Rep. (N.S.) Exch. 27.

(16) 12 Ad. & E. 431.

(17) 12 Ibid. 451.

nesses, and the admissibility of the whole of the evidence (although I purposely avoid deciding either point) I am of opinion that the evidence is not sufficient to support a judicial determination against the claim of the six younger of the nine children to be considered legatees, as well as the three elder, and upon the footing that the legatees are to have 500l, each. To this conclusion I have rather unwillingly come, because it differs from that of the Master, whose judgment I hold in the very highest estimation and respect; and because I think that, if the testatrix herself could interpose in the matter, she would reverse my decision, and maintain his. The order must be upon the exceptions and further directions, neither allowing nor overruling the exceptions.

Vendor and Purchaser-Conditions of Sale-Interest on Purchase-money-Delay of Vendor-Compensation to Purchaser for Loss of Interest.

By the conditions of sale it was stipulated that the purchaser should pay the remainder of the purchase-money, after deducting the deposit, into court on or before the 26th of December 1845; but if he should fail in making such payment, &c. then and from whatever cause the delay might have arisen, he should pay interest at 5l. per cent. per annum on the said balance, from that day until the day of payment. The purchaser deposited the balance on the 23rd of December with his bankers at 21. per cent. per annum, and gave notice thereof to the vendors. The title was not completed until August 1847, but the purchaser being satisfied with the title, paid the balance and interest at 51. per cent. into court in the July previously, reserving the question of his right to compensation for loss of the difference between interest at 211. and 51. per cent., occasioned by the delay of the vendors :-Held, on petition, that the vendors were not liable to make compensation for such loss.

On motion (the costs of which were reserved) made on the 17th of July 1847, by a purchaser of certain property sold

under a decree in this cause, the purchaser, declaring himself by his counsel content with the title, was ordered to pay in the balance of his purchase-money, with interest, at 51. per cent. per annum, from the 25th of December 1845 to the 7th of August 1847; but without prejudice to his right, if any, for compensation or allowance by reason of any alleged delay on the part of the plaintiffs in completing their title. The purchaser died on the 6th of November 1848, and his executor and executrix now presented a petition under the above reservation. The petition stated, inter alia, the following facts:-By the fourth condition of sale it was stipulated that the purchaser of each lot should pay 201. per cent. deposit; and by the fifth, that he should pay the remainder of his purchase-money into the Bank of England on or before the 26th of December then next (1845), and should be entitled to the rents and profits from the 25th of the same month; but if he should fail in making such payment at the time and in manner aforesaid, then and in such case, and from whatever cause the delay might have arisen, he should pay interest at the rate of 5l. per cent. per annum on the balance of his purchasemoney from that day until the payment thereof. By the sixth, it was provided that every purchaser should obtain, at his own expense, the usual orders for confirm ing and allowing his purchase, and the payment of his purchase-money into the Bank of England; and by the seventh, that the vendors should, within three days from the confirmation of the order nisi on the Master's report of the purchase, deliver an abstract and deduce a good title to the several lots agreeably to the conditions and particulars of sale.

The order nisi on the report allowing the present purchase was confirmed absolutely on the 4th of December 1845. On the 13th of the same month, the purchaser's solicitors applied for an abstract, and at the same time expressly informed the solicitors of the vendors, that the order nisi had been confirmed absolutely; but no abstract was delivered until the 2nd or 3rd of January 1846. On the 23rd of December 1845 the purchaser specifically appropriated the balance (9,4321.) of his purchase-money,

by paying it into a separate account in his name with Messrs. Farley & Co., bankers at Worcester, to remain with them at interest at 241. per cent. per annum, and where the same did so remain appropriated until the 9th of August 1847. On the 29th of December 1845, the purchaser's solicitors wrote to the solicitors of the vendors, complaining that the abstract had not then been delivered, although the order nisi had been confirmed on the 4th then instant, stating that the vendors were committing a continuing breach of the contract, and that the purchaser would demand compensation, and giving notice of the abovementioned appropriation and investment of the balance at the aforesaid rate of interest, and that as the purchaser was required by the conditions of sale to pay 51. per cent. interest from the 26th then instant, the difference of interest must be at the loss of the vendors, so long as they delayed the delivery of the abstract since the 7th then instant. No reply was made to this application. The first part of the abstract was sent on the 2nd or 3rd of January 1846; and further parts of considerable length were severally delivered on the 20th of March and 17th of August 1846, and on the 8th of January and the 11th of July 1847. The title was not completed until the lastmentioned date, and the conveyance was duly executed and delivered in the August following.

The petition prayed a reference to the Master to inquire and state, whether the seventh condition of sale relating to the delivery of the abstract was or was not duly complied with by the vendors; and if he should find that it was not, then that he might also inquire and state what damage the said purchaser had sustained, or what compensation in respect thereof the petitioners, as his legal personal representatives, were entitled to, either by way of reduction of interest or otherwise, and that the amount of compensation might be deducted from the sum of stock, in which a part of the balance of the purchase-money then remained invested. The petitioners also asked for the costs of their present application, and of the purchaser's extra costs in respect of certain affidavits on his motion for leave to pay his purchase-money into

court,