upon mortgage or Government security, and the interest, dividends, or produce thereof, shall be equally divided between my four sisters, for their sole and separate use, and independent of the control or authority of their husbands, during their natural lives; and on the death of my sisters, I will and direct that the interest of their respective shares shall, at the discretion of my executors, be applied in the maintenance and education or accumulate for the benefit of the children of each of my sisters so dying, until they shall severally attain the age of twenty-two years; and, upon any of their attainment to that age, they shall be entitled to their proportion of their mother's share of the principal; and in case of any of their decease under that age, leaving lawful issue, such issue shall be entitled to their respective parent's share at such time as such parent would have been entitled, if living, thereto, with the benefit of the interest or produce thereof in the meantime; but in case any such children shall die under the said age without leaving issue, or such issue shall die before they are entitled to [204] the principal of their shares, that then the other children of my said sisters shall be entitled thereto, together with the issue of any of them who shall be then dead, in like manner, and with the like benefits of survivorship as their original shares: but in case all the children of any of my said sisters shall die without issue, or, there being such issue, they shall die before the principal of their respective shares shall become payable, then the share of such of my sisters, whose children shall so die, shall be paid and applied to and for the benefit of my other sisters, and their respective children or issue, in like manner as their original shares; and upon the decease of my sister Hannah Evans, leaving no issue, I will that my brother-in-law, William David Evans, shall have the interest and produce of her share during his natural life, and that, upon his decease, the same shall be applied to and for the benefit of my other sisters and their children, in like manner and with like power of survivorship as the shares of my other sisters are."

The testatrix died in 1798.

Catherine Perrin, one of the four sisters mentioned in the will, died in February 1803, leaving an only child, Sarah, born in the testatrix's lifetime: Sarah intermarried with William Geddes, and afterwards died in the lifetime of her husband, at the age of nineteen, leaving a son, the defendant Archibald Perrin Geddes, who subsequently attained the age of twenty-two years. Elizabeth Nicholson, another of the four sisters of the testatrix, died in 1810, leaving the Defendant Peter Nicholson, her only child, who was born in the testatrix's lifetime, and had long since attained his age of twentytwo years. The other two sisters of the testatrix were still living: one of them had never had any child; the other had several children, who were born in the life-[205]time of the testatrix, and had all attained the age of twenty-two.

The bill was filed for the purpose of ascertaining the interests of the parties in the residue, and of having it declared by the Court who were the persons now entitled to the shares of the two deceased sisters.

Mr. Duckworth, for the Plaintiff.

Mr. Bickersteth and Mr. Koe, for some of the Defendants.

All the limitations after the life estates are void. The bequest is to the sisters of the testatrix for their respective lives, with a gift in remainder to such of their children as shall attain twenty-two, and a limitation over, in case of the death of any of them under that age. The gift in remainder is to a class comprising persons not in esse, and whose interests are not to vest till they attain twenty-two: it is consequently too remote. Leake v. Robinson (2 Mer., 363); Bull v. Pritchard (1 Russ., 213).

Mr. Pemberton and Mr. Simpkinson, for the representatives of a grandchild who died under twenty-two.

The gift to the children of the sisters gives each child, as it comes into existence, a vested interest, subject to the contingency of being devested in the event of such child dying under twenty-two years of age. At twenty-two, and not before, the trustees are to pay over the fund to the legatees; but the interest is to be applied in the maintenance and education of the children, or to accumulate for their benefit until they respectively attain twenty-two. Upon the death of any of the sisters, the whole interest of her share is given to her children; it [206] must either be applied to their maintenance and education, or accumulated for their benefit: and the rule is that, if the whole of the interest of a legacy is to be applied for the benefit of the legatee, the legacy vests as soon as the right to interest commences,

though the bequest is, in form, a gift to the legatee, only upon the happening of some future contingency. Booth v. Booth (4 Ves., 399); Hanson v. Graham (6 Ves., 239). In Murray v. Addenbrooke (4 Russ., 407), a residue was given, after the death of the testator's widow, to the eldest surviving son of Sir John Murray, upon his attaining twenty-five; and the trustees were directed to apply the interest to his use till he attained that age: the Lord Chancellor held that the eldest son of Sir John Murray, living at the death of the widow, would take a vested interest in the residue, though he should not have then attained the age of twenty-five. Upon the principle of that case the children of each sister must be held to have taken, upon her death, a vested interest in their respective shares of the residue.

The testatrix then goes on to provide, that the interest given to the children of the sisters respectively shall be devested, if they die under twenty-two, and, upon that event, to limit the fund over to other persons. This proviso and this limitation over are clearly too remote. The consequence is that the interest, which the children take under the preceding clause, remains absolute.

Mr. Temple, for a grandchild who had attained twenty-two. The bequest may fairly be confined to such children of the sisters as were in esse at the death of the testatrix. Blandford v. Thackerell (2 Ves., jun., 238). Even if the gift of the prin[207]-cipal had been too remote, the interest is directed to accumulate for their benefit; and though the accumulation for twenty-two years would be void, yet it might be good for twenty-one years under the 39 and 40 G. 3, c. 98, or by analogy to the construction of that statute. Longdon v. Simson (12 Ves., 295).

THE MASTER OF THE ROLLS [Sir John Leach]. I am not able to distinguish this case from the residuary gift in Leake v. Robinson (2 Mer., 363). There, as here, it was the gift of a residue; there, as here, the trustees were at their discretion to apply the rents, interest, and dividends to the maintenance and education of the children, until they attained the prescribed age; and there, as here, if any of the children died before that age, their shares were to go over to the surviving children. In that case, the shares of the children were not only to take effect upon their attaining the prescribed age, but also upon marriage, which is not the case here; but that, in principle, can make no difference. In that case Sir William Grant proceeds upon this principle, that the prescribed time cannot be considered as marking only a time of postponed payment, because there is no antecedent gift-no gift but in the direction to pay at the particular period.

It was argued that the children took vested interests, because the trustees had a discretion either to apply the income in the maintenance or education or to accumulate it for the benefit of the children; and that this is, in effect, a gift of the whole interest until the prescribed age, subject, however, to be devested. But, if the whole interest had been expressly given to [208] the children until they attained twentytwo, I do not agree that the shares of the children would therefore have vested, subjected to be devested. The case of Batsford v. Kebbell, which is referred to by Sir William Grant in Leake v. Robinson, is an authority directly in point against that proposition. Where interim interest is given, it is presumed that the testator meant an immediate gift, because, for the purpose of interest, the particular legacy is to be immediately separated from the bulk of the property; but that presumption fails entirely when the testator has expressly declared that the legacy is to go over, in case of the death of the legatee before a particular period. I speak here of gifts of personal estate, and not of real estate.

The language of this will gives an equal interest to all children of the sisters, whether born before or after the death of the testatrix.

The Statute of Accumulation was passed subsequently to the death of the testatrix, and can have no effect upon this will.

My opinion, therefore, is, that the gifts over to the children of the sisters, whether born before or after the death of the testatrix, not being to take effect until the age of twenty-two, are too remote and void.

[209] ARNOLD v. CONGREVE. Feb. 4, 1830.

A testatrix, having a son and two daughters, gave £6000 3 per cent. stock to her son for life, remainder as to one moiety of it, to his eldest male child living at her decease; and as to the other moiety, to his other children; she also gave £6000

like stock to her daughters for their respective lives, in equal shares, remainder to their children; and she further gave a sum of Bank stock to her three children in equal shares during their lives, and the share of each was, at his or her death, to revert to their issue in equal shares. Subsequently she made a codicil, in which she desired that her grandchildren's shares of these two stocks should be settled upon them for their lives, and afterwards upon their children: Held, that, by the operation of the codicil, the moiety of £6000 3 per cent. stock, which, by the will, was given absolutely to the eldest male child of the testatrix's son living at her death, was well limited to that male child for life, with remainder to his children; that, as to all the other bequests, the attempt to extend the limitations to great grandchildren was ineffectual: and that the absolute interests given by the will to the grandchildren were not destroyed or restricted by the codicil.

The will of Susannah Olivier, dated the 20th of September 1792, contained, among other clauses, the following:-"I leave and bequeath £12,000 3 per cent. Reduced annuities, which I have now transferred from the 4 per cent. stocks; the same to be put in trust in the hands of my three executors, to be employed in the following manner :-One half, or £6000, of the said trust, the interest thereof shall be for the use of my son, the Rev. Daniel Stephen Olivier, during his life, and shall be duly paid unto him as his property; and, at his death, one half, which will be £3000 stock, shall revert to my son's eldest male child living at my demise, and the other half, or £3000 stock 3 per cent. Reduced, shall be divided in equal shares between his other children lawfully begotten; but, should my son die without leaving issue, in that case the whole of his moiety, or £6000 3 per cent. Reduced stock, shall revert in equal shares between my other two children, during their lives, and, at their death, it shall revert to their issue; or, should either of them die without leaving issue, it shall, in that case, revert in equal parts to those of my grandchildren that shall then remain. The other moiety, or £6000 of the £12,000 3 per cent. Reduced stock, in trust, shall be [210] divided in equal shares between my two daughters, namely, Julia Elizabeth Eyre and Margaret Esther Cony beare, the interest of which shall be duly paid them during their lives, and, at their death, each one's share shall revert to her children; but, should either of my daughters die without leaving issue, in that case their share of the trust, which will be £3000 3 per cent. Reduced, shall revert in equal shares between my surviving children, and, at their death, to revert to my surviving grandchildren in equal shares."

Another clause was as follows:-"I also leave, and order to be put in trust by my executors, £10,000 Bank stock, which now stands in my name, the interest of which shall be duly paid in equal shares to each one of my three children, during their lives, and, at their death, each one's share or thirds of the £10,000 Bank stock, shall revert in equal shares between their issue; but, should either of my children die without leaving issue, in that case their share or thirds of the Bank stock shall revert to the remainder of my children; and, at their death, to revert to their issue, or whatever issue shall remain from either of my children, in equal shares."

"All lapsed legacies," said the testatrix in a subsequent part of the will, "are to return to the bulk of my fortune, excepting those that are entailed, and the £700 3 per cent. Consols that I leave to Mrs. Passmer, which reverts to my son, the Rev. Daniel Stephen Olivier, after her death, at his own disposal; neither shall any unentailed legacy return to the bulk that I leave to either of my children, in case they have any issue; and all the legacies that I leave to my grandchildren shall revert to their brothers and sisters, if they die minors; if such legacies are not entailed, and even should they die in [211] my lifetime, their share shall equally revert from the time this will is written."

The testatrix made a codicil, dated 30th of March 1800, which contained the following clause :-"I now furthermore request that, at the death of each one of my children, who have any issue, the £10,000 Bank stock, and also the £12,000 3 per cent. Reduced, which by my will I have entailed upon my grandchildren, I would also have these, my grandchildren's share of the same two stocks, be also settled upon them to enjoy the interest thereof during their lives, and afterwards to revert to their children lawfully begotten; but, in default of any issue, they may dispose of it as they may think proper."

The testatrix died on the 7th of January 1803, leaving Daniel Stephen Olivier, Margaret Esther Conybeare, and Julia Elizabeth Eyre, afterwards the wife of Sir William Congreve, Bart., her only children, her surviving.

Daniel Stephen Olivier had five children, of whom Daniel Josias was the eldest ; and all of them were living at the death of the testatrix. Margaret Esther Conybeare had two children, both of whom were living at the death of the testatrix. Lady Congreve never had any children. All the grandchildren of the testatrix were in esse at the time of her death; and afterwards several of them had children.

The questions, in the cause were, what extent of interest the grandchildren of the testatrix took under the will and codicil, and whether there was any valid gift to the issue of the grandchildren.

[212] Mr. Bickersteth, for the Plaintiffs.

Mr. Tinney and Mr. W. O. Carr, for Daniel Josias Olivier.

Daniel Josias, as the eldest male child of the testatrix's son, living at her decease, took under the will an absolute interest in the £3000 3 per cent. Reduced annuities; and though the codicil affects to reduce the interests of grandchildren to life estates, the direction that, in default of issue, they are to dispose of their shares as they may think proper, will give them a quasi estate tail. The Court will the more readily adopt this construction, as the limitations to great grandchildren must be void, as being too remote. In this respect there can be no difference between the £3000 and the rest of the property, or between Daniel Josias's children and the other great grandchildren; for though the £3000 is limited to him by a particular description in the will, his children are not specially designated in the codicil: they could claim. nothing under that instrument, except as individuals included in the class of children of the testatrix's grandchildren; but a gift to such a class is void, because it may include children of persons not in esse at the testatrix's death; and, therefore, no individual or individuals, claiming, not as being specially described, but merely as being comprehended in the class, can take under such a gift. As to all the rest of the property, except the £3000, it is clear that there is no distinction between Daniel Josias or his children, and any of the other grandchildren or their children.

In support of these positions the following cases were cited: Hodges v. Middleton (Douglas, 451); Robinson v. Robinson (1 Burr., 38); [213] Seale v. Barter (2 Bos. & Pul., ́ 485); Tothill v. Pitt (1 Mad., 488); Routledge v. Dorril (2 Ves., jun., 357); Leake v. Robinson (2 Mer., 363.); Sibley v. Perry (7 Ves., 522.)

Mr. Pemberton and Mr. Skirrow, for other grandchildren of the testatrix. It is evident that the testatrix, when she speaks of issue of her children, means merely their children, and that she does not include more remote descendants. Putting out of the question the interest of Daniel Josias in the £3000 stock, the rest of the property is given, after the death of the testatrix's children, to her grandchildren as a class; and they take their respective shares absolutely. The codicil shews that the testatrix afterwards entertained the purpose of confining the grandchildren to a life interest, and of limiting over the principal to their children; but a limitation. after the death of persons not in esse is too remote and as the law will not permit the purpose expressed in the codicil to be carried into effect, that instrument ought not to be allowed to operate upon the interests created by the will. The codicil does not express any absolute intention to take away the interests which the will had given to the children: it merely intimates the wish of the testatrix that the property should be so settled as to go to the children of the grandchildren; and if there are no great grandchildren to take, the grandchildren are to retain full power of disposition. As the particular intention of the testatrix in favour of great grandchildren necessarily fails, her general intention will be best carried into effect by leaving the rights of the parties in the same state as if the codicil had never been in existence.

[214] Mr. Sidebottom, Mr. West, Mr. Teed, and Mr. Elderton, for great grandchildren. There is not a single phrase in the will or codicil which shews that the testatrix had in contemplation grandchildren who might be born after her death; and, in fact, there never was any person answering the description of a grandchild, who was not in esse during her life. When she speaks of her grandchildren, or the issue of her grandchildren, she must be considered as describing by the term grandchildren a class of persons who were living at the time of her death: and this construction should be adopted the rather, as, in disposing of the first-mentioned sum of £3000, she gives it, after her son's death, to his eldest male child living at

her death. The consequence will be that the limitations to the children of grandchildren, being expectant on the determination of the life interests of persons in esse at the death of the testatrix, will be valid.

Mr. Treslove, Mr. Boteler, Mr. Roupell, and Mr. Lowndes, for other Defendants. THE MASTER OF THE ROLLS [Sir John Leach] stated that, the £3000 being given to the eldest male child of the testatrix's son living at her decease, a life interest might be well limited to him, with remainder to his unborn children; that the will gave that sum absolutely to Daniel Josias as such eldest male child; but that the codicil ought to be read reddendo singula singulis; that the codicil, as applied to this bequest, amounted to a direction that Daniel Josias should enjoy the interest of the £3000 during his life, and that the capital should, at his death, go to his children; and that these limitations of the £3000 were within the rule of law.

His Honour further stated that the other bequests to the grandchildren of the testatrix could not be confined [215] to grandchildren living at her death; that the words included every child whom her son or either of her daughters might at any time have; and, consequently, that, as to those bequests, limitations to the children of the grandchildren were void; that the testatrix, having, by the will, given her grandchildren absolute interests, had made a codicil expressing her desire that they should take only life estates, in order that their children might take in succession after their deaths; that her sole object in making the codicil was to let in those children of grandchildren; that that purpose necessarily failed; and that, as the great grandchildren could not take, the intention of the testatrix would be best effectuated by holding that the absolute interests given to the grandchildren by the will were not destroyed by the codicil.

The decree declared that Daniel Josias Olivier, as the eldest male child of Daniel Stephen Olivier living at the time of the testatrix's decease, was entitled, during his life, and from the death of his father, to the dividends of the sum of £3000 Bank 3 per cent. Reduced annuities in the will mentioned; that, as to the sum of £10,000 Bank stock, and all other the legacies and bequests to the testatrix's grandchildren in the will and codicils contained, except as to the said sum of £3000 Bank 3 per cent. Reduced annuities, the limitations over to the issue of the testatrix's grandchildren contained in the codicil of the 30th of March 1801, were void for remoteness; that, as to the sum of £10,000 Bank stock, Daniel Josias Olivier, as one of the grandchildren of the testatrix, and the issue of her son, Daniel Stephen Olivier, was absolutely entitled to a fifth of a third part of the sum of £10,000 Bank stock; that the four other children of Daniel Stephen Olivier became absolutely entitled to the sum of £3000 Bank 3 per cent. Reduced [216] annuities, further part of £12,000 like annuities, and to four-fifths of the one-third of the sum of £10,000 Bank stock in equal shares; that the children of Margaret Esther Conybeare were entitled to onehalf part of the sum of £6000 Bank 3 per cent. Reduced annuities, being the residue of the sum of £12,000 like annuities, and to one other third part of the sum of £10,000 Bank stock, in equal shares; and that Lady Congreve was entitled, during her life, to the dividends of the remaining £3000 Bank 3 per cent. annuities, and of the remaining third part of the £10,000 Bank stock.

BANKS. SLADEN. Rolls. Feb. 18, [1830].

A testator gave a legacy of £12,500 4 per cent. annuities. At the making of his will there was a stock called New 4 per cent., in which he had a small sum, and a stock called 4 per cents. Consolidated, in which he was a holder to a very large amount. Before the death of the testator, the latter stock was reduced to 3 per cent., and another 4 per cent. stock was created. The investment of the legacy is to be made in an existing 4 per cent. stock, and not in the stock which had been reduced to 3 per cent.

Joseph Sladen, by his will, dated the 14th of October 1822, bequeathed as follows: -"Also I give and bequeath unto my executors, George Ralph Payne, Jarvis Joseph Sladen, and John Baker Sladen, their executors and administrators, the sum of £12,500 4 per cent. Bank annuities, upon trust that they, the said George Ralph