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within one general desci"iption — as "my sons John (ieorge
and Thomas" -then lliev take a>- iiidi\ idiials { Or/nnl \.
Orj'nnl. [1903] 1 I. K. 121). If (.11 ilie .itliei- hand \u-
intended them to take a> a cla-^. even tlii)ii;^li they do not
all come within one general ilocript ic»n a- •" the children
ot' A. and r>. respectively'* — they will take :i> a cla->
(Fletrhr V. I'lelrh.'r (1«.S2), '.• L. K. Ir. .'.Ol) : and mm-

L<lilil Liliruli, V. I'rUuUn ( I.StU), lO \e>. hit'.j. See /\/'„<IS-
liiii'ii \. H iilli i\ siijini, and '/. //' /<' I riiii, Lnnlitii \.
Inifrani, [IIMMJ 1 ('Ir. .",2. and i'aprs v. Ihilloi, (l|t(l2).
.s<; L. T. 12'.l.



i»4 I'aki' II.— Dkscuii'Tion of Donkes.

Art. 15. Tim-, the mere I'xclii-ioii l»y ikuiic ot' a iicrson or jkm-soiis

who would otlicrwi-c Ix-loii^- to tlir cla-s. will not prevent
i!'w.i,wi".m'',>V' the ui*'^ lu'inu' const rued as a <iilt to a cdass. In h/nioiid v.
person, rioiiii- JJostock (l^To), 10 Ch. 1 ). 3'))^, the nit't was to the testa-
nation (Iocs , . » 1 1 ij 1 • 1 • u \ r • A
not prevent tnx s husband s nephew s and nieces wlio were livmo; at

donees taking ^]^j, ^i,„p q^' j^jg decease, except A. and B." : — J/cId, that
as a class. . , , * i t /-> w;

thi.s was a n;itt to a class. And see In re < ozens. Miles v.

Wilson, [190:i] 1 Ch. 138. Again, tlie inclusion hy name
of one who would be included if he were not named, does
not make a gift to him and the others of the class, not a gift
to a class {Re Allen, Wil.sou v. Alter (1881), -44 L. T. 240).
The rea.son given by Jessel, M.R., why the inclusion nomi-
natim should not make the gift a gift to an individual —
that the inclusion in such cases is probably due to some
doubt in the testator's mind as to the legitimacy of the
person included (ibid., p. 241) — would go to show that
the inclusion nominatiin of a person not a member of this
class would not make a gift to liini and the class a gift to
individuals, since, if the person included was illegitimate
in fact he would not be a member of the class {sujrra,
p. 76). And that has been decided in Porter v. Fox (1834),
6 Sim. 485, where, however, the construction was helped by
the context. As a rule, however, under a gift to " A. and
the children of B.," (or in like words) A. and the children
of B. will not take as a class (In re Featherstone' s Trusts
(1882), '1'2 Ch. D. Ill ; In re Venn, Lindon v. [n<iram,
supra, and cf. Kekeicich v. Barler (1903), 88 L. T. 130).
Namin>' ^he naming of tlie persons, who, at the time the instru-

persons wlio ment was made, constituted the class, will not prevent such

constituted • i i -j • i ^i ii i

(lass at date persons takmg as a class, provided it is clear that tne donor
of mstru- intended that they should. Thus, in la re Jackson, Skiers v.
Aslmorth (1883), 25 Ch. D. 162, the testator left the residue
of his property in trust for "my son (J., my daughters L. M.,
A. and F., and such of mv child or children if any here-
after to be born as shall attain the age of twenty-one years
or marry in equal shares as tenants in common but subject
as to any share of any daughter to be born to the trusts



('hap. hi. — ('la!>ses. 95

followino-,"" the share of such daui^htei- bein<i" .settled. At Art. 15.
the date of the will, the testator liad one other daughter
livino- besides those mentioned in the will, but no other
children were afterwards born to him : — Held, that the
five named children took as a class. See Re Stanhope's
Trusts (1859), 27 Beav. 201, and rf. In re Stans/ield,
Stansneld v. Stansfield (1880), 15 Oh. D. 84, and In re
Smith's Trusts (1878), 9 Ch. D. 117).



Akt. 10. — Gift subject to a Poiver of Selection.

1. Where under a gift or trust a power is given to
select the members of the class who shall take, then if
there is a clear intention to benefit the class in any
event, the gift or trust will be held, in so far as the
donee of the power fails to exercise it, to be a gift or
trust in favour equally of all members of the class who
were in existence at the time the power should have
been exercised.

'1. X specific gift over on default of selection is
sufficient to show that there was no intention to
benefit the class even when such gift over is void.

"It is jierfcetly elrar that wlicic there is a mere |i()\vei- Autlioritics.
of disjio.sing, and that |i()\vcr i- not e.xeeuted. the court
cannot execute it. It is eijually clear that wherever a tru>t
i.s created, and the execution of that tni>t lail- liv thi- deatli
of the trustee, or Ijy accident. tlii> cciurt will e.xeciiic the
tru.st. One (piestion therefore is. whether jtlie d(»ne<' of
tlu! power] had a tru«t to execute or a im re power " (/'<■/■
Lonl El.DoN. ( '.. in l>rnif,, \. ///./r/.v ( l.S(i;')). ,S \'e>. .')(;i.

at ji. 570).

*' Vou niu>t find ill the will an iiiiliealioii that the
tcstiitrix did intend the c|a-~ or -onie nf the cla - to take



96 Part II. I)l:^^•|;ll'^l(»^• ov Honkks,

Art. 16. int(>ii(l(Ml, in fact, that the jiowcr should Ijc rciiardcd

as in till nature of a trust — only a power of >(deetioii
heine- Miveii a-, foi- example, a ;i;ift to A. for life with a
eil't over to >ueh of a class as A. shall apjioiiit "' ( /'/-r
HoMEit, .1.. ill //, /v ir^Wr.s-' SeftlcDU'iit, []«D7] 1 Ch. 2.s:i,
at ]). 2'.i2).

A gift ovoi- 'riii> rule i> often stated in such a way as to sue-;.;('st that

on (let.iiilt (.t ^]|^, mere "ifant of a power to api)oin1 a fund ainoii"- a class
notnecessary. amounts to an implied eij't of the fund to the class in
default of appointment, unless fjiere is an express oift over
on that evei'.t. This is not so. To make the erant of a
]u)wer iinplv a eit't to tlic! class, there must he a clear
int(Mitiou to henefii the class, and the ])ower must amount
to a mere ])ower to sol(»ct the members of the class who are
to benefit. In other words, the intention of the donor, as
it ai){)ears from the instrument, must be to create a trust
in favour of the class eenerally. <;ivine; the donee of the
power a discretion as to which members of the class shall
take. Then, if the discretion is not exercised, the trust in
favour of the class takes etfect, and all members take
e<[ually.

The onlv importance of a gift over in default of appoint-
ment, is that the existence of such a <^ift over rebuts anv
inference the court might be inclined to draw from the
words of the instrument as to an intention to benefit the
class generally ( Goldrin(j\ . Inwood (1801), 3 GifiF. 131)). In
this connection it may be noted that a residuary gift is not
a gift over in default of appointment for this purpose {In re
Brierleij, Brievley v. Brierley (1894), 43 W. J{. 'M\). And
that if there be a gift over, the inference of an intention
to benefit the class is rebutted, even though the gift over
is void [Jie Spracfue, ^file>/ v. Cajie (1880), 43 L. T. 230).

Examples ai In the following cases, the court held that a general

cases where jutc-ntiou to benefit the class, was sufficiently indicated :

heW "olpply. In Brow), v. ///^/y.s' (ITDi)), 4 Yes. 708 ; (1803). 8 Ves. 501,

where the limitation was '" to such children of A. a> 15. shall



Vttw. III.— Classes. ii7

think most deserving or to the children of C." In Art. 16.
Burt'oiuih V. Philco.v (18-1()), 5 My. & Cr. 7o, where thi'
limitation was to the two children of the testator for Hfe,
and if they hoth died without hiwful issue, tlien the sur-
vivor was to have power to iHspose by his will of the
[irojierty " amongst my nephews and nieces or their
children either all to one of them or to as many of them "
as the surviving child should think proper. In Re Siisanni
(1877), 47 L. J. Ch. 6i), the limitation was to A. and B.
for life, and for such descendants of C. as B. should by
will appoint. Ln Lonamore v. Brown (1802), 7 Yes. 124,
where the limitation was to the testator's brothers and
sisters or their children, in such shares and proportions.
and at such times as the donees of the power should think
Ht. In all these cases in default of appointment, the t'und
was held to go to the class intended to be bcnetited, in
equal -hares per capita, and the class was held to consist
of all the objects mentioned, whether these objects were
joined by a conjunctive or disjunctive conjunction. Thus,
in Loivjinore v. JJrown, supra, the class was composed of
all the testator's lirothers and sisters, or their children.

In the following cases the court held that a general Kxampk-s of
intention to uenent the class was not sufiiciently indicateil. ^.^^l^, ^.^^ i^.i,)
In J/ealt/ v. Jjomwri/ (IS '/J), 3 Ir. (_'. L. K. 2i;5, thctol.r

.... , " 1 ^ ^ • !• • • 1 <'X»'luili'il.

limitatKJii was to the testtitor s daughter lor lite, with
power by dee<l or will to (lisj)osc of the freehold to and
among her children with no gift over in d<'tault of appoint-
ment. In /// /■'- Weekes' Settlentciit , .■<iijnii. \\u' liniitiitiun
wa< to the Ini.-banil of the testatrix lui' life, "and
I givi? f(j him power to <li>|io>e of all such pi<)|ierty
by will amongst (»ur children." There \v;i< no gilt
over. In C'tirhrrn/ v. .\/r('<irlli>/ (l^i^»l), 7 L. IJ. Ir.
!»2^<, any inference whi<-h might have been drawn I'rom
the words used in limiting the ;^ift and power, was hcM
to be n'butt<'(i bv a recital in the will to the ••tVeet that the
testiitor hud alreadv >iitticientl\ pro\iiled for the class
generally.



l'-"^ J*AUT II. — DksCMUI'TION OF DoNKES.

Art. 16. \\ luTc the class takc'- in ilctanlt ol' a|i[)oiiilm('Ut , all the

,,., , iiicnilxTs ot' it take in r(Hial shares per capita, and

\\ lion- ink- _ ' / ''

applii's, class apparently as tenants in coniinon ( \\/'lson v. Pinndd
itl^'vvX'"'''(l^^''^>' 1^4 Ch. I). i\\ : A'r Whites Trusts (1800), Johns.
()5(»). Ami they will all take the re.sidue in equal shares
wliere the j>o\ver to aj)point has heen exercised partially in
favour ot" eertain inemhers {Fordi/ce v. Bridges (l.'!i4:8),
2 I'hill. 4;i7). Wliere there are two or more distinct
classes of objects such as the relatives of the settlor on
the one hand, and certain charitable objects on the other,
the rule seems to be that in default of appointment the
fund is to be divided equally between the two or more
classes {^alas/nny v. Denton (1857), 'A K. & J. 529 ;
fjoiufmore v. JJrooni (1^02), 7 Ves. 124). And where
there are directions that one of the jiei-sons anions whom
the fund nuiy be appointed, is to take his share on
different terms or in a different mode from the others, this
constitutes him a separate object from the class which the
rest make up, and, accordingly, on failure of a})j)ointmeut
he will take a share equal to the whole of the class which
is the other object intended to be benefited. Thus, in
Little V. ^'^eil (1862), 10 W. R. 592, a fund was vested in
trustees to apply the income to such one or more of the
wife and children of A. as they should think fit, but any
provision for the wife was to be 1)V wav of auiiiiity for
her separate use, determinable on the death of her husband :
— field, in default of appointnu^.nt the wife took half the
fund.

Who oonsti- The objects who form the class or classes that will take
takhiVtn^ '^^^ ^^ default of appointment, depend, it is submitted, upon
defavilt of ^ the Ordinary rules regulating classes (see infra). If the
gift be immediate — e.c/., "to such cIiiMren of A. as B.
shall appoint " — -only such children as were living when
the instrument came into operation, would take in default
of appointment. If, on the other hand, the gift was ])0st-
poned — which is the usual case in gifts of this descri|ttion
— then those who would take would be those formino; the



ippointment.



C^HA]>. 111.— Classes. 99

class at the time tlu* power could be exercised. Thus, it' Art. 16.
the gift was to •' A. for life aud sul)jt^ct thereto to such of
A.'s children as A. might by deed or will appoint,'' then
in default of appointment, all tlie children of A. living
not merely at the time when the instrument came into
operation, but all those born iluring the life of A. (or if
dead, their representatives), would be entitled in default
of appointment. If. on the other hand, A. could only
apj>oint by will, only those children who were living at
A.*s death would, in default of appointment, be entitled
{Freeland v. Pearson (1807), L, H. '.i Eq. 658 ; S/'nnott v.
]Valsh (1880), 5 L. K. Ir. 27 : Be Shsunn/ (1877),
-47 L. J. Ch. Co).



Art. 17. — Gift to wrongly enumerated Class.

Where a gift is made in terms which would make it
a gift to a class simply but for the fact that the number
of persons constituting the class is stated and is
different from the real number, then the court in the
absence of anything to shew' that particular members
of the class were intended, will reject the enumeration
as a mistake and construe the gift as a gift to the class
simply.

"Authoritie!? establish, as is coiiti-nilrd. iliis piopositioii : Antlioiiiies.
tliat wherever then* is an mumiTaiiun dt persons in lie
benefiti'd, and that enunu'ratiou is crnMituii- and (hx-s not
lallv with thf facl>. tin- coiir; niav r<'jfcl lln' rniiincral ion.
J think that is stating tin' |ir()posilion much lixt widclv.
I think th<' pniposit ion mu-t be limited to this that
where the court, a- a matter (if con^I ruction. an-i\e^ at the
eoncju-ion that a partii-nlar class cd" persons is t(» \to
benetited accortling to tin- intention ol' the testator, if
there has been an ijiacenrai"- ennnieraiion nl' the persons



10(» Pakt TL- -Deschu'tion of Donkks.

Art. 17. (.'tiiniiosiiin- thut cl;i>s. the court will rrjcct tlic fiuiiucration.
I think the priiu-iplr of the cases goes no further than
tliat" {j)er Lord Khsskll ok Killowfa% L.C.I.. in /// re
Ste/iheiiKon, .1 hmaUl.'^on v. JJiini/'cr, [l<Si>7] 1 ( ii. 7'). at
J.. 81).

Ai)i)liciitioii This ruh' ai»j)lies equally wliether the real nunihcr of
..f the- rule. ^^^^ ^,,.^^^ .^ uroater (^;a/wv// v. Ifihhert (lbl2), 11) Ves.
124), or stnaUcr (/// ;r Dnfton W. X. (ISil^), 05) than
thr iHinilicr in the insfrunicnt of i^il't. or whether the gift
is a gift to the class generally {Jn re (irooni, Bootij v.
Groom, [1897] 2 (.h. 407), or to each nieinl)er of the
class imlividually (Jhinidl v. J)aniell (1849), ?> De G. &
Sin. IVM ). Soinetiin<'S it has heen carried very far indeed.
lllustraiious. Thus, in the last-mentioned case the testatrix made a will
leaving £500 each " to the three children of A." A., at
the date of tlie will, had to the testatrix's knowledge three
children and no moi"e. Suhsecinently six more were born
and the testatrix was didy informed of the fact. Never-
theless, in three later wills tjie testatrix continind merely
the gift to the three children of A. : — J/eld, thm all the
nine children of A. took legacies of £500 each. And see
Vcatsy. )'nits (1852), IG Beav. 170.

In In re Kmery^s Ustate, Jones v. Kmerij (187G), 3 Ch. D.
.'500, the facts were almost identical with those in Daniell v.
Jjaniell, supra, save that both the will and codicil w'ere
made before the actual birth of the fourth child, tjiough it
was then en ventre .svt nicre. Tiie court, however, held that
there was no ambiguity or mistake, and that the three
children living when the will and eodieil were made alone
took under the gift.

There must ll is to 1)0 noted that the rule ai)plies only where the

to bent-fit "ti.e ^■'^"''* ^'"^^'^ '"^ intenti(m to benetit the class generally,

cl.ias. which, however, will be assume(l to be the case until it i>

shown that the intention was to benefit only some meml)ers

of the class. When that is clear, then, if there is evidence

enough in the words of the will or in the surrounding



Chai>. IJ J. —(^lasses. 101

circuin.stancos to enable the court to itlentit'v the member.^ Art. 17,
to be benefited, these alone take, and if there is not evidence
enough the gift fails for uncertainty.

Ill Neirman v. Piercei/ (187(»),-1 C-h. D. 41, the testatrix. Illustrations,
by a will made in 1<S73, bequeathed " to ]\Irs. AValden
widow of the late William Walden one hundred jiounds
and to each of her three children a like sum of one hundred
pounds."' William Walden. who was the brother of the
testatrix, had tlied in l.^aT. leaving" his widow with three
children. In 18;38 Mrs. Walden remarried, and at the
date of the will had livino- six children by her second
marriage. One of the three by the first marriage had
died in 1870. but it was shown that there had been no
connnunication between the testatrix and IMrs. AValden
for six years before 1873 : — Jlehl. that the circumstances
disclosed an intention to benefit only the three ehildi'cn l)y
the first marriage.

And see //* re Emenj.^ Kstate, supra.

On the other hand, in //i re Stepltenson, J>onaldso)i v.
Bamher, [1807] 1 ( "h. 75, the facts were as follows : The
testator by his will made a gift of the residue of his estate
to •• the children of the dei-eased son (namecl Hamber) of
my father'.s sister shaic and shar<^ alike." The testator's
sister had hail in tact three sons named liamber, all of
whom had died belore the dateol' the will, leaving chihlren
living at the death of the testator : — //<-/</, that as there
was no intention here of benefiting the childicn of all the
testator's aunt's d(!cease(l sons named Hamlicr. but only
the children of on<' of them, tin- rule a- to iiii>t:dves in the
nuinl»i'r of a class intcndi'd to bi- bcnelilcd did not apjilv,
but that tluTe was an e(jiii\ocat ion as In which ol three
son^ children were to be beiKdited, and since no extrinsic
evidf'nc*' wa< ti'ndcri'(| to soI\r tin- <'iniivo(ation, the gift
failed tor nnc<'rtainty.

The rule stated in the article does not a|i|ily in the case
<if a gift to a class of r<-laiions where such relations uro



102 TAi;!' II. — Dkscrhtion of Donees.

Art. 17. illcnitiniatc. In such circiiinstaiK-cs as we have scciu no
natural rclat'nc can take as such nntil lie shows to the
satislaction of the court that he was intended to take.
Thus, in In re Ma//o, Chester x.Keirl, [I'JOl] 1 C;h. 404. a
testator left lo<j;acies to the "throe children res])ectively of
( 'aroline Lewis born prior to her marriage with her ]ii-esent
hushand." Besides three children of which the totator
was the reputed father, ('aroline Lewis had a fourth child
horn heibre she hecanie ac(|uainted with the testator, of
whose existence it was not clear that the testator was aware:
— //t'l(L that that cliild was not included in the gift.

In that case a further point was raised, nanudy. whether
direct extrinsic evidence of the testator's intention could
l)e given to rebut the presumption of mistake. The court
rejected this evidence. As there was no presumi)tion of
mistake this w^as clearly right. But if the childrcMi had
been legitimate it is not certain that direct evidence of
intention could not be given to su})port the express terms
of the will. Such evidence is constantly admitted to rebut
the presumption that a legacy has been adeemed or that a
person was intended to be an implied trustee of jiroperty
Itouuht in his name or transferred to him.



Art. 18. — Period of Distrihutinn amonrj Class.

In the case of a gift to a class, the time when the
gift is to take effect in enjoyment is called the period
of distribution.

When the period of distribution is the date of the
instrument of gift coming into operation, the gift is
said to be immediate ; when it is a date subsequent to



Chap. III. — C'lasses. 103

the instrument coming into operation, it is said to be Art. 18.
postponed.

•• You may have to take a testator's death as the time Authority,
when tlie class is ascertained ; but if* there is a Hfe estate
which prevents the distribution of the fund till tlie life
estate is over, then you look to the period of distribution
which is, in that case, the determination of the life estate,
ami then you iind, not who the })ersons who will take are,
but yoii fix the maximum number of which the class can
consist, ami then divide the shares, as far as they are
divisible upon that footinu". ... In the case of a
life estate the period of distribution is usually the death of
the tenant for life, but the period of distribution is not
necessarily the determination of the life estate. The period
at which the fund has to be distributed is the time that
actually has to be taken" (/>??• North, J,, in In re
Knapiis Settlement, h'naj'p v. \^assaU, [18J:>5] 1 Ch. 1*1,
at p. 0(j).

The existence of an annuity charged on the residuary
estate of a testator does not })Ostpone the period of
distribution of the residue. Thus, in In re W/u'teford,
Inylis V. W'/tite/'ord, [190:3] 1 Ch. 8b'.», ^\. had three sons,
H., 8., and B. On H.'s marriage. AV. a.lvanccd €4.(U»(t nnd
covenanted to leave £6,000 to H. Bv his will. W .. alter
giving hi- wife an annuity, lelt his residuary estate
equally to 11., S., an.l B., but directed that the V4,000
advanced and the .£(],( )0() to be left to H. should Itr taken
into hotchpot on W.'s widow's death : — //eld, that in
calculating the int(?rest on the £10,000 received by H.
the period of distribution was to be taken as AN'.s and
not W.'s widow's death.



K'l Pai;i' II. — Dkscimi'Iion (tF Donkks.

Art. 19.
Aet. V.).- Ascertainment of Class irhnr Gift

is specific.

Where a series of gifts of a specific amount is made
to each member of a class, whether such gifts are
immediate or postponed, no person can primd facie be
entitled to take under it who did not Ijclong to the class
when the instrument came into operation.

Illustration In Roijers V. Miitrk (187iS), 10 ell. ]). •>:), K. H.

ri'tv.'"' ^'^ l)e(|U('athed ''the sum of £100 to each of tlic children of
my niece E. M., who shall live to attain the age of twenty-
Three years."' At the death of E. H., E. ]\I. had no
children. In an action to administer E. H.'s estate, a
(juestion arose whether any, and if so what, amount should
he set aside to answer the legacies to the "children*' of
E. ]\I. : — Held, that no sum need be set aside, since no
children horn to E. M. after E. H.'s death coidd be
entitled to take under the gift. Jessel, M.E., in giving
judgment said : " The rule is a rule of convenience ;
unless you adopt it, you cannot divide the estate. In
Rinf/ronev. Bramham (1794), 2 Cox. 1^84, there were chil-
dren living at the death of the testator, but the same rule
applies where, as in the jiresent case, there are no children
living at the testator's death. If in such case, you are to
let in children born after tli<^ death, the estate is no more
divisible in the one case than in the other, and so Lord
Hatherley, when Vice-Chancellor, points out in AJann v.
Thompson (1854), Kay, 638."

Rule applies The rule a{)plies equally to gifts by deed. See the

and wills ^^ ^ reasoning in the judgment of North, J., in In re A'tiajip's

Settlement, Knapp v. Vassall, [18U5] 1 Ch, Ul.



Chap. III. — Classks. 10.')

Art. 20.
Art. "20. — Ascertainment of Class ichere Gift is

general.

"VMien a general gift is made among the members of
a class, the following rules apply :

(1) If it be immediate, no person can be entitled

prima facie to participate in it who was not a
member of the class when the instrument of
gift came into operation, provided there was
any person then in existence belonging to
the class.

(2) If it be postponed, then any person becoming a

member of the class after the instrument of
gift came into operation, and before the period
of distribution, may also be entitled to partici-
pate in the gift.

(3) "Where, in the latter case, the gift is of the corpus

of property, and the postponement of the
enjoyment is due to the conditions attached to
the gift, then for the purpose of determining
who can participate, the period of distribution
will be the time when the conditions are so
far performed as to entitle any member of the
class to the enjoyment of his share (tf the
gift.

•' WIktc a will ccjiitaiiis an iiiniicdiatc ;;ilt to llif cliil- .Xutliuiitifs.
(lit'ii <>r a living ]MTM»n. ami noiliing nion-. ami llinc arc
fliildrcM living at tlic il<-atli of tli«' l<".tal()r. I lio-c cliililrcn
only take ( Vimr V. Franris i 17M>), '2. < '«»x. H'" ; Parid-
Koii V. IhdluK (1H>NJ, 14 Ves. .'jU".). ir. liowrvrr. llir
iMTJod of «li"»tril)Ution is j»ost|»one«l, tin* gil'i \\ill :'I'l'lv, <i<'t



Online LibraryArthur UnderhillThe principles of the interpretation of wills and settlements → online text (page 14 of 42)