1844: 29th February and

1st March.

Will.
Construction.

Remoteness.
Vesting.

MILROY v. MILROY. Y

JOHN FRY, by his will dated the 30th June 1807, after directing all his just debts, funeral expenses and the charges of proving his will to be paid, and giving some specific legacies, gave and bequeathed as follows: "I give and bequeath unto my son-in-law Thomas Milroy and my friends Thomas Seymour and Augustine Hill, all those my several freehold and leasehold messuages or tenements, with the appurtenances thereto belonging, situate, lying and being in county of Middlesex or elsewhere, and also all and every my ready money, money in the funds, debts, goods, chattels and personal estate whatsoever and wheresoever, due, owing or belonging to me, at the time of my decease, by or from any person or persons whomsoever, to hold the same unto the said Thomas Milroy, Thomas Seymour and Augusof all and every tine Hill, their heirs, executors and administrators, upon the trusts and to and for the several uses, ends, intents

Testator gave
his real and
residuary per-
sonal estate, in
trust to pay an
annuity to his
nephew, and,
subject thereto,
in trust for his
daughter for
life, remainder
in trust to pay

the income for
the maintenance

such child or

children as she
might leave at
her decease, during his, her or their minority; and, when the
youngest should have attained twenty-five, to pay, assign and
transfer the income, together with the principal, to the children,
the same to be divided equally between them, share and share
alike; but if any of them should die leaving a child or children
who should attain twenty-one, then to pay and assign the share of
such child to such his or their child or children: and the testator
then expressed his further will to be that his trustees should, im-
mediately after his nephew's decease, convey, release and assign
all his freehold and leasehold estates unto the heir or heirs who
should be legally entitled thereto; and, in case his daughter
should leave no child or children, or they should die under age
and unmarried, then in trust to pay and assign the income toge-
ther with the whole residue unto and equally between his next of
kin. The daughter left five children living at her death, all of
whom attained twenty-five,

Held that the trust for them was not void for remoteness, but that
they took vested interests in the trust-property on their mother's
death.

Read & Gooding 21 Bears. 479.

Maddison & Chapman 4 Ray 88.723.73 Jez. V §. 537.
Hardcastles v Hardcastle 1 S. &. M. 408.

and purposes hereinafter mentioned, that is to say, upon trust that they, my said trustees or the survivor of them &c. do and shall, from time to time during the natural life of my nephew, William Fry, son of my brother George Fry, receive the rents and issues and profits which shall accrue or arise from my said freehold and leasehold estates, and also shall and do, as soon as conveniently may be after my decease, collect, get in and receive all such debts, sum and sums of money as shall be due, owing, payable or belonging unto me at the time of my decease, and also convert and turn into ready money all my goods, chattels and personal estate not hereinbefore disposed of or consisting of ready money, and, as soon as the same shall be so converted and turned into ready money as aforesaid, that they, my said trustees or the survivor of them &c. shall and do place out and invest the money arising therefrom or from any part of my said personal estate so to be converted and turned into ready money as aforesaid, together with my ready money which shall be remaining after my said debts, funeral expenses, and the charges of proving this my will, shall have been fully paid and satisfied, in the public funds or upon government or some other good and sufficient security; and that they, my said trustees or the survivor of them &c. shall and do, in the next place, for and during the natural life of my said nephew William Fry, pay unto him, my said nephew, or to whom he shall or may direct or appoint to receive the same, the clear, yearly sum of 20 l., to be paid and payable quarterly, the first quarterly payment thereof to be considered as due and to be paid on the day of my death; and also that they, my said trustees, or the survivor &c. shall and do, from time to time during the natural life of my daughter Sarah Milroy, the wife of the said Thomas Milroy, pay, VOL. XIV.

E

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MILROY.

unto my said daughter, the residue of the interest which
shall or may accrue or arise from the money to be placed
out upon government or other security or securities, as
well as the rents and profits which shall accrue or arise
from my said freehold and leasehold estates, by half-
yearly payments, the first half-yearly payment thereof
to begin and be made six months from the time of
my decease, and which paynient to my said daughter I
will shall be free and independent of her present or any
future husband or husbands with whom she shall or may
intermarry, and her receipt or receipts alone, from time
to time, shall be good and sufficient discharge and dis-
charges for the same; and, from and immediately after
the decease of my said daughter, in trust to pay the
interest of such residue and rents and profits, for and
towards the maintenance and education of all and every
such child or children as she shall or may leave at her
decease, during his, her or their minority; and, when and
as soon as the youngest of her child or children shall
have attained the age of twenty-five years, upon trust to
pay, assign and transfer the dividends and interest of all
such residue and rents, together with the principal money
as shall or may be remaining after reserving sufficient to
pay and discharge the said annuity of 207. unto my said
nephew in case he shall be living, the same to be divided
equally between them share and share alike; and, from
and immediately after the decease of my said nephew,
in trust to pay and assign the remainder of the said
interest of such residue and rents, unto her children in
like manner; and, in case there shall be but one child, then
upon
trust to pay and assign the same in like manner
to such one child; but, in case it shall happen that any
or either of my said daughter's children shall die leaving
a child or children who shall live to attain the age of
twenty-one years, then upon trust to pay and assign the

share of such child so dying, in like manner, to such his or their child or children: and it is iny further will and meaning that my said trustees or the survivor &c. shall and do, from and immediately after the decease of my said nephew and the trusts hereof are fully carried into execution, convey, release, and assign all and every my said freehold and leasehold estates unto the heir or heirs who shall be legally entitled to the same; to hold the same unto him, her or them so entitled, his, her, or their heirs and assigns for ever: and in case my said daughter shall leave no child or children, or they should die under age and unmarried, then upon trust and in like manner to pay and assign the said interest and rents and profits, together with the whole residue, unto and equally between my next of kin, share and share alike, reserving nevertheless sufficient to satisfy and discharge the said annuity of 20l. to my said nephew while living;" and the testator appointed the trustees to be the executors of his will.

The testator, by a codicil, dated in September 1811, revoked the appointment of Thomas Seymour to be one of the trustees and executors of his will, but confirmed his will in all other respects; and died, shortly afterwards, leaving his daughter, Sarah Milroy, his only child, his heir and next of kin. Thomas Milroy, her husband, was the only acting executor and trustee of the will.

Sarah Milroy (who died in 1823) had five children, the youngest of whom, William Fry Milroy, the Plaintiff in the suit, attained twenty-five in 1829; and all of them, except John, the eldest child, were still alive and were Defendants in the suit. John died in 1838: the Defendant Andrew Haigh Milroy was his personal

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representative, and the infant Defendant Sarah Laura Milroy, his daughter, was his heir and sole next of kin. Andrew Haigh Milroy was also the personal representative of Sarah Milroy.

The bill prayed that the rights and interests of all parties under the will, might be declared, and that the trusts, so far as they remained to be performed, might be carried into execution under the decree of the Court, the Plaintiff submitting that, according to the true construction of the will, he was entitled to one-fifth of the trust property, subject to the payment of the annuity of 201. to William Fry the testator's nephew.

Mr. Wakefield and Mr. Lovat appeared for the Plaintiff; and

Mr. Rogers, Mr. Kinglake and Mr. Randell for the Defendants in the same interest.

They contended that the direction, in the will, to pay the income of the trust-property to the children of Sarah Milroy, for their maintenance and education during their minority, must be considered as a direction to pay them the income until the youngest child should attain twenty-five: Jackson v. Marjoribanks (a); and that the children took vested interests in the property on their mother's death, and nothing but the conveyance of it was postponed until the youngest child should attain twenty-five: Farmer v. Francis (b); Ellis v. Maxwell (c); Blackwell v. Bull (d); and Home v. Pillans (e).

(a) Ante, Vol. XII. p. 93. (b) Bing. 151; and 2 Sim. & Stu 05.

(c) 3 Beav. 587.
(d) 1 Keen, 176.

(e) 2 Myl. & Keen, 15.