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106 rAiiT II. — Description of Donees.

Art. 20. only lo llic cliildrcii li\ in;;- ;il llic (tcatli of the tcstatoi-. liut
:il>c) tf) tlii)>^e l)oi'n hclbrc tlic ]irri()il of (li>i rilpiitioii
{Aiulrors V. rart/iKilon (17'.»1), W Wvo. V. V. -lOl ; Jn re
Kmnu-I's A'.s/a^' (l^.SU), \\\ ( 'ji. D. ■t.S4), tliosc liviii;;- at
the (lentil ol" the testator takiii;j; vested interests liable to
be divested pro tanio by the birth of each additional child
(Oj)j>enheim v. J lean/ (185)}), 10 Hare, 441 ; JiaUUcln v.
Rogevs (1853), 3 D. M. & U. 64*.)). In Andrews v.
Partint/fon, sujwa, the bequest was to the children ol' A., the
daughters' shares to be paid at twenty -one or on marriage,
and the sons' shares at twenty-one. It was tlieretbre a
case wliere the ^it't and dii-ection as to ]ia\'nient were
distinct. The same rule has been a[)plie(l in cases where
the "ift was continiicnt. In such cases, all who come into
existence ])efore tlie first member attains ;i vested interest
will (if the contingency is satisfied as regards them) be
entitled to share {Whlthread v. Lord St. John (1804),
10 Yes. 152 ; Gilhert v. Boorman (1805). 11 Yes. 238 ;
Clarke v. Clarke (1836), 8 Sim. 59 ; (tlllnmn v. Daunt
(1856), 3 K.& J. 48 '' : per Stirling, J., in In re Mervin,
Mervin v. Crossman, [1891] 3 Ch. 197, at p. 202).

Who consti- This article sets out the rule adojited by the coui'ts for
tute the class .i ,• , • • i i. i • i i i •

when gift is '^^^'' P^'^'posc ot ascertauiHig who are to t)e included m a

general. class where a gift is made to it generally, as for example

a gift of £10,000 "to my sister's children." The rule

First part of consists of three parts. The first deals with immediate
gifts, that is, gifts the enjoyment of which is not postponed
till some period after the instrument comes into operation,
either by the nature of the property given, as for example,
its being a reversionary interest, or by the nature of the
conditions attached to the gift, as for example, by a
condition that it shall not be paid to any member of the

Second part class until he or she attains the age of twenty-one. The

second ])art deals with gifts the enjoyment of which is

postponed to some period after the instrument of gift comes

into operation, which period is usually called the period

Tliinl part qI distrii)ution : and the third part deals with the question
of rule. ' '■ ^

Chap. III. — Classes. K^T

as to when this |ierioJ of distribution is to be assumed to Art. 20.
have arrived when the shares of the diflPerent members of
the chiss may by the conditions attached to the gift
become distributable at ditierent times, as for example
when the members of the class are of diflterent ages, and
each member's share is to be paiil to him on his attaining
twenty-one. The rule applies equally to settlements by
deed (//( re Knai>i>^s Settlement, K)uij>j>y. }'assall, [1895]
1 rli. V7).

Paragraph (1).

As to thi- rirsr parr of the rule the law is clear and First part of
simple, Provid<'d there is or are any meml)er or members i,n,no<liatc
of the class to take the gift when the instrument of gift g^^s.
comes into operation, then that iiuMubci- or tliose members
are alone entitled to share in the gift unless an intention
to the contrary appears on the face of the instrument
(Viner v. Francis (1780), 2 Cox, IW). And the rule
applies whether the gift is of the corjius or merely of the
income of property {In re Powell, Crosland v. Jlolliday,
[1898] 1 Ch. 227)'.

In the cax- last cited, a testator directed the trustees of
his will to pay the annual ])rofits of a third portion of the
residue of his estate to the children of his sister P], H.. and
to divide the same among them equally during their lives,
and after their deaths, to divide the said |>ortion equally
between their children. JO. 11. ilieil shortly after the
testator, leaving several children. Tlie trustees of the will
then applied to the court to decide whether the gill over
to tiie chil(h-en of the children of 10. J I. was good, it \\a>
contended by the testator's next-of-kin, relying on /// n
Wenmotlix Extate, \\',',nnntt, v. W'nnnall, (1887), ;J7 < 'li. 1 ».
2tj»j. that it was bad, as violating the rule again-l |<er-
petiiities, since being a gift onlv (d tin' income, and not ol
the '•'//•//»/.'• of the e-tate, tin- nil.- the ;;iti. b.-iii;; iin-
mediiite. vestcfl only in the children living at the te>t;i!nr"-
death did not apply, and that as, therelore, a child of 10. 11.,

108 Pakt II. — Description of Donees.

Art. 20. lioni utter the ilcnili ot' the tcst-.itor would he cntitlcil. the
Para (1) limitation oNcr to the child ot' .-iicli a rliild was had : I hid,
that the limitation to the ohildrcii of \\. 1 1 ."< chijihcii was
;:;ood, as the ^it't ot" iiiconio vested only in I he eliildi-eii hx in;^"
at the testator's death. Kkkewich, J., in deliveiin^ jud;;-
rnent.said : '"All the children,' is intended to mean 'all the
eliildren liviii<r at the testator's death.' No lawyer could
douhr that a git't of a sum of money to the ' members of a
club' would extend only to those who fultilled the descrip-
tion at the time of the testator"? death . . . ClIlTTV,.!.,
in /// ri' Wcnmotli'x Ksfati', SW-mnoth \. \\ cnninl h. sn/ira
(and see infrn. ]>. .SlI), was dealin<i- solely with thr rule w hidi
tixes the period of distribution anionic- children at the time
when the first child becomes entitled. It is that rule which
he declines to extend to a case where income only is ^^iven,
and I do not think it occurrecl to him to consider in any
way whether it would be right to depart from the rule as to
children being ascertjiined at the testator's death because
they were only interestetl in income, or for any other
reason. ... I therefore hold that, under the gift of
income, only the children of Elizabeth Holmes living at
the testator's death take, and that tlie gift over to the
children of such children is not void for remoteness, and
there must be a declaration to that (^ft'ect."

First pari of The rule on this ])oint applies ecpially to direct gifts by

rule applies ^^.jjj ,j,, ,[,.,.,]_ .j]^,l njfts by wav of ai.noilitineiit. Thus, on

eciiially to , .

direct'gifts an inunediate be(|uest to such of the children of A. as B.

melitl?^'''"^ shall api)oint, B. can appoint among such children only of

A. as were in existence when the testator died ( I'md v.

Compton (1803), « Ves. 375).

Rule does not The rule does not apply where there is no member of

apply where ^jie class in existence when the instrument of gift comes

no member of ^ .... ,

class in into operation, in this respect ditiering from the rule as to

exisunee. specific gifts to members of a class. When the instrument

is a will, if there is no person in existence to take under it,

then in the absence of an expression of a different inten-

Chap. III.— Classes. lOi)

tion, all persons who at any time hcoome niemliers ot' the Art. 20.
class intlicated, would become entitled to share in the o;itt iv^TTTi)-
{J/an-is V. Lliv/il ( Ls-2:V). T. ct K. :U0). When the oift is
by deed, then, if the limitation be directly to a class not in
existence, the gift, of course, fails (Crone v. Chlell (l<sll),
1 Ball A: B. 449, at p. 458 ). But where the oift is by way
of use or trust in tlie case of realty, or l)y way of trust in
personalty, there seems to bo no reason why the same rule
should not apply as applies to ^ifts by will. The same rule
undoubtedly applies where there are members of the class
in existence, and they only are entitled to take ( Warren v.
Johnson (1672), 2 Rep. in ( 'h. tJ'.V).

The rule may, of course, be excluded by express words First part of
as in Scott v. Lord ScarhoroiKih (1838), 1 Beav. 154. where Kxclu^ion l>v
the limitation was "to all grandchildren now born or here- express
after to be born during the lifetime of their respective
[tarents." Here a definite period is fixed — the lifetime of
the parents — and so no ditHculty arises as to the class to
be included: bur where the words are merely " born or
hereafter to be born," or other like words, it is hardly
settled whether they are sufficient to indicate an intention
on the part of a testator to admit children born after lii>
death. In Jiutler v. f.oice (1?^:U>). 1<> Sim. :U7, it was held
thev were not, the court holding" tliat they showed only
that the testator contemplated children to be born after the
date of his will, and before his d<;ath. A contrary decision
was come to in Moqij v, }[i><io (1815), 1 Mer. ()54, and in
Goock V. (joocit (lS5:-}j, i\ 1). ;M. (fe (t. :56(;, but tliese
decisions were not follow<'<l in Amiltntir \. Asltton (l^tllt).
2(1 L.T. 102, where, howev.'r, the court held that to include
children born after the testatrix's death would prevent the
other trusts (jf the will being carried out.

It is submitted tliat \\liate\er may be the cii-e in :i will,
in a dee»l a gift to children burn and to be born, or in like
words, must be con>trned to include al'terborn cliildien.
since the deei] conie'^ into operation innnediatelv on


V\nT II. — DHsciurriON' of Donkes.

Art. 20. cxct-ution, and it' the words "'to l>e l)uni " do not lucan to Ix'
Para. (I). l)orn after t'Xt'cutioii of tlic deed, they can have no nicaiiin;^

Second part
of rule :

Remoteness :
To avoid it
i-ule is not to
lie excluded.

Paua(;kai>h (2).

The seeoiid part of the rule is ('(jually clear and ecrtaiii.
Wlien the oifr is postponed, whether the [jostponcmcnt
aris(>s throno;h conditions expressly attached to the oift. as,
tor example, bv a condition that tlie share of each ineniher
of the class is to be })aid to him only on his attaining-
the age of twenty-one ( Aitdreics v. PartiiKjton (IT'JlJ,
3 Bro. C C. 401). or tIn-ou;;h tlie nature of the property
given, as by its being a remainder following a life estate
{Harvey v. Stracey (1852), 1 Drew. 73), in the absence of
any words in the instrument of gift to the contrary effect,
all persons who w-ere members of the class at the time the
instrument came into operation, or who became members
of it l)efore the period of distribution, belong to the class
in whose favour the gift accrues. If the postponement
arises through the pro})erty given being reversionary in
its nature, it makes no difference whether the interest in
possession was or was not created imder the instrument of
gift ( Walker v. Shore (1808), 15 Ves. 122). Nor does it
matter whether the interest given in the postponed gitt is
vested or contingent (In re Mervin, Mervin v. Crossman,
[1891] 3 Ch. U>7. and see Bhu-hnan v. F>jsh, [1892]
3 Ch. 209). Provided the whole gift is. in fact, postponed,
the class to whom it is given will remain unfixed until ir
has become enjoyable in possession. If, however, the gift
is partly immediate and partly postponed for the purpose
of ascertaining the class, it will be regarded as an immediate
gift, and only those belonging to the class when the instru-
ment came into operation can claim under it (///// v.
Chapman (1791), 3 Bro. 0. C. 391).

: Formerlv. there seemed to be a disposition to disregard
this rule, where the effect of observing it was to make tlw

Chai>. 111.— Classes. Ill

gift void for remoteness. lu such cases, the rcmlenoy of Art. 20.
the court was to hokl that the chiss to take was Hunted to para. (2).
those members of it who were existino- wheu the iustru-
meut came into operation. See Elliott v. Elliott (18-41),

12 Sim. 270 : In re CoppanVs Estate (1887), 35 Ch. D.
350. This, however, has now ceased to be the case, and
the rule adopted in construing a gift to a chiss is now thus
stated l)y Lord Selborne in Pearks v. Mo.<eleij (1880),
5 App. ('as. 714, at ]). 7 lit : "You do not import the hiw
of remoteness into the construction of the instrument by
which you investigate the expressed intention of the
testator. You take his words, and endeavour to arrive at
their meaning, exactly in the same manner as if there had
been no such law, and as if the whole intention expressed
by the words could lawfully take eifect." See also
Cnnlirf'e v. Brawkev (1870), 3 Ch. D. 3^13.

This doctrine must be taken subject to tlie rule as to a
grant or devise being construed c>/ prh. See In re
Richardson, Parrij v. J/olme.<. [11)04] 1 Ch. 332 : In re
W'riohtson, Battie-\Vri<jhtson v. 'J'homas, [11)04] 2 Ch. 95.
And in this connection it is important to note that where
there is a gift to a class, and it is possible the number of the
class may not be ascertained within the period allowed by
the rule against perpetuities, the whole gift fails (PearLs v.
MoseUy, supra).

Para<;1!A]'H (3).

The rule set out in the third part of the article is thus Thinl i)iui
<'Xj»lain<Ml by Jessel, M.K., in In re EmtnrCs Estate {IHHO), Aiitlnditiis.

13 Ch. D. 4«4, at p. 41M). -There has," lie says, "been
established a rule of convenience not foundcil nii any view
of the testator's intention, that since when a eliild wants
it* >hare, it is convenient tliat tlie payment of the >hare
shoid'i not \ii- deferred, it -hall be made jiayalile by pre-
venting any cliild bc^rn alter that time I'rom |(artiei|ialing
in the fund. The rule \< that, so >oon as any child would,
if tile class were not susceptible ol' incr<a-e, be entitled to

112 l*.\i;i' II. — I)i:sci;iiTU)N' of Donkks.

Art. 20. rail t'oi' iiavmciit, tlii' (•l:i<s shall Iiccoikc iiu'a]ial)l(' of hciii;^

p "^ "... increased. That imiIc of eDiiNciiience. Ix'in;^; opposed to the

intention, is not to l)e applied where it is not nocossary,

tliei-e l»ein«i- -ll^*' '• •"'^l'' ^1'*^*^ X^" '*' '" •'" ^^'1'*^' •^^*' ''^>l''i ^^'
to the time when a share heeoines jtayahle." This rule iloes
not applv in Scotland ( lli>i>r Jo/iiislo/ic v. Snichur s '/ riistiu'S
(IIM ).■■)). 7 F. 2')).

Kulu one (it Tn-iiie; merely a fnle of eon veiiieiice, it does not operate

convenience ^^.]j,.j.,. ,^q inconvenience would afise through lea\ino the
nierelj". '^ ■

class o])en after one nieinher hecomes entitled. Therefore,

it does not operate where the gift is not a gift of the corjnis,

hnt merely of the income of property.

Doesiiot Thus, in In re 11 V//»i'>^//'.s /'Js/(tle, Weiunoih v. \\ t'lnnoth

apply to .i;ift^n 887), 37 Ch. D. 266, a testator left the income of the
of income. \ /' '

residne of his estate "unto and e(iually between my grand-
children ... on their respectively attaining the :ige
of twenty-one years during their respective lives, share
and share alike." On the tleatli of :iny grandchild (except
the last survivor) who should di(^ leaving i.ssne, the share
of such income and annual proceeds of such grandchild so
dving to be paid unto and ecinally between his or her
children, who, being sons, shouhl atttiin twenty-one, or
being daughters, should attain that age or marry. After
the death of the last surviving grandchild, the residuary
estate to be converted and the proceeds of the conversion
to be divided equally amongst testator's great grandchildren
living at the death of his last surviving grandchild, and
attaining twenty-one. A\'hen the eldest grandchild attained
the agi' of iweutv-one. there were seven grandchildren in
existence. Subsequently an eighth was Ixjrn : — Held, that
he was not exclude(l from the class to take. C'hittv, J.,
said (at p. 27()j : - in (rillmdN v. Jhnmf (18r)6), 3 K. & J.
48, Lord HathERLEY. when \'ice-C'hanceIIor, said that a
child ' wi'.o has attained twenty-one cannot i)e kept waiting
for his share ; and if you have once paid it to him, you
cannot get it l)ack.' \Vhere, however, . . . the di.s-

Chap. III. — Classes. 113

tributioii is of income and not of corj'us, thoro is nothing" Art. 20.
which requires the appHcation of the rule, and the difficulty pai^^TTs)
does not arise. In the case of the distribution ot^ corpus,
the trustees cannot ascertain what is the aliquot sliare of
a member of the class until the class is closed, but in the
case of a distribution of income, the distribution is
periodical. Each member of the class, as soon as he
becomes entitled, takes his share of the income, and there
is no reason why the rule should be applied beyond each
periodical payment. I have no difficulty, therefore, upon
principle in holdino; that in the case of a bequest of income
among a class of children to be paid on their attainiiii;-
twenty-one years, the date of the first attaining twenty-one
years was not the date of the ascertainment of the class,
and that aiiv child at anv time attainini;; twenty-one years
will be entitled to a share of the income.*' See I)i re
Stephens, Kilbij v. Belts, [ISJOi] 1 Ch. 322, where In re
Wenmotlis Estate, Wenmotli x.Weinnoth, supra, is discussed
;ind explained.

The rule applies to all cases where. l)v the conditions Apjjlication

11 1 •,< 1 1 (• ^ 111-' , 1 ,. (if tliinl part

attached to the giit, the share ot the ditterent mcMubers ut of miu.
the class may vest or becom<' ]iayable {(T/lliuun v. J hiunt
(185»;j, 3 K. k J. 4J5) at ditlerent times. Its most usual
application is to gifts to children on their attaining a
certain age ; but it applies also to gifts on any other
contingency, such as their marriage or their death leaving
issue (J3arrhi;iton v. Tristram (1 8U1), Ves. iUlj. Th(>
fact that the gift to the class is preceded by a life estate
does not prevent the oper.iiion ol" the rule. In that case
the class n'Miains open till the (h'lerniinatioii dl' the life
e-itiite in anv event. If then one of the cla-> h,i- Mttained
the age or perjoniied the otbi-r conilitioii rei|iiirci|. the
clas' becomo fixed ; if none iia^, it remains opiMi until the
condition is performeil bv one ol' the class ( Witlsmi v.
YiiiiiKi (\XX:t), -IX ('b. !>. \'.\U). Aid the I'ld that one ^^['
the <-laS". has performed the condition at the time tlie
instrument of gift conies into operation will have tin-"

114 rAirr II. — Description of Doxkks.

Art 20. cfft'C't ot" fontinino- the class who can take to tliosc iiu'inhcrs
Para (3) of it ill existence at that time. The effeot of this sometimes
is to render a gift <j;oo(1 which niieht otherwise he had as
contrary to the rule ae;ainst perpetuities. Thus, a limita-
tion to the children of A., a livino; person, on their attainintj;
the ao;c of twenty-five, will he good if. at tlie date of the
instrument coming into operation, a child of A.'s has
attained that age {Piclien v. Mathews (1878), 10 Ch. D.
26-4) ; hut it will be bad if A. had no children at that time
aged twenty-five (/« re Mervi/i, Mtrriii v. ('r(>.<s))itiii,
[1891] 3 (ii. 197).

The rule does not ap])ly where the gift is postponed till
the youngest child of a family attains a given age. unless
there is an indication that by the youngest child is meant
the youngest child in existence at a certain time, as "in
the lifetime of the parents"' (Goorh v. Goorh i\>>^)?)),
3 L). M. & G. 3G()). If no such indication can he found,
then it appears the class remains open while it is possible
any children may be born ; and children born after the
youngest for the time being has attained the given age,
will be included in the class to take {Mainwaring v. Jieevor
(1849), 8 Hare, 44). Nor does the rule apply where an
accmnulation of the income for the purpose of providing
portions for the younger children is directed. Then the
class remains unclosed until the })eriod of accumulation
has expired (hi re Stejiliens, K'dhij v. Betts, [1904] 1 ( "h.
322). Xor when there is a direction for maintenance after
the eldest child has attained the age of twenty-one years
{In re Court7ie>/, Pearce v. Foxwell, [1905] 74 L. J. ( 'h.

The rule as to the period at which the class is to be
ascertained is also applicable to the ascertainment of the
class of objects of a powder of appointment, where the same
class take in default of appointment. Thus, where there is
a gift in trust for A. for life, and after his death for such

Chap. III.— Classes. 115

of his issue as he may appoint, ami in default of appoint- Art. 20.
ment for his issue equally, Ik^ can only apjioint in favour of p^yg^^ (3).
issue born in his lifetime. For the class of issue to take in
default of appointment consists of issue born in his lifetime,
and the power is merely a power o£ selection amon^' that
class (.HocMeij v. ^fa^^'l>e>J (1790), 1 Ves. jun. 142). Where,
however, the gift in default of appointment is in favour of
a diflPerent class (e.'/.. the children of A., wlio may attain
twenty-one or marry), the same reasoning is inapplicable,
and A. can then a])|)oint in favour of issue to be born after
his death so long, of course, as he keeps within the rule
against perpetuities.




I. — Date from lohich tvills and deeds speah - - 116

II. — Descriptions of property generally - - - 124

III. — General descriptions of property - - - 138

IV. — Special rules as to tvills - - - 147




21. Condition of things in reference to which deacrijjfums of

jjropertij are construed 116

Aet. 21. — Condition of things in reference to ichicli
Descriptions of Property are Construed.

So far as the property comprised in a document is
concerned, the condition of things in reference to
which the document is made is assumed, in the
absence of a contrary intention, to be :

(1) In the case of a deed the condition of things

existing at the date of its execution.

(2) In the case of a will the condition of things

existing at the death of the testator.

Section 24. '•Every will <ludl be construed, with reference, to the

ISSt'* '^'' '"'^''^^ estate and personal estate comprised in it, to s])eak

Chap. L — Date — Wills and Deeds. 117

and take effect as it" it had been executed immediately Art, 21.
before the death of the testator, unless a contrary intention
shall appear by the will " (7 W. 4 (N: 1 Vict. c. 2G, s. 24).

The words " with reference to the real estate and KxplAimtion

of s. 24.
personal estate comprised in it " mean " so far as the

will comj)ri>es dispositions of real and personal estate "

ipei' Turner, L.J. : Lad>/ J.aiKidale v. Bri<f<is (185G),

2 Jur. (N.s.) '?^-2, at p. 1)90).

The section *' refers to the real and personal estate com-
prised in the will, and nothing else. It does not say that
we are to construe whatever a man says in his w-ill as if it
were made on the day of his death. Applyino-, then, that
rule to this will, we look to see what is the real estate
comprised in it ? It is to be observed that the Act speaks
of it — that is, the will. When there is a puzzle as to
which clause of the will carries a particular property, the
statute does not say which clause is to outweit^h the other,
but only that the proj)erty is to be comprised in the will.
B<' it so. The question still remains which clause carries
the property, the residuary or the sjx'ciiic clause ? If a
testator devises all his lands in the jcirish of !>., and then
makes a residuary devise of all his t)ther lands, the former
devise will carrv all other land which he may sulisecjuently
accjuirc in that pari>li under s. 21 of the statute, unless
there is an intention to the contrary. But when we are
asked to extend the words 'my cotta;.re and land." so as to
include tjiat which he (the testator) had not <;()!, and that
which, if Ije had it, would not Ije ordinarily describcil liy
such words, I see no reason for doiii^; anything of the
kind ' ( i>er LiNDl.KV. L.d.. in /// /■< /'urtat and Lamb

(1885), :-i(» <'li. I>. :)!», at p. :..')).

"I atn lar tVoin expressing an v <ioiilit .'.upon the view
enunciated by Lord Juhtiee LiNin.KV. Hut I will assunje
tiiut the will is to be construed as if' it had been made ou
the dav of thf testator's death, and I will a-k nivself what


Pakt in. — Descrh-imon of Property,

Art. 21. was the state of circiunsfances of the testator and liis
j)roj)erty on that day " {per Fry, L.J., iJi/d., at j). ')»)).

As lias ah'eady hecn [)()inted out (see sujiru^ pp. iWI cf sc'/.)
the court in construint; a will or deed must, in order to <rive

Coiulition of

things with

reference to

wliicli a will oitect to it, take into consideration the condition of thin<>;s

and deed nre . . , . , . , t

Online LibraryArthur UnderhillThe principles of the interpretation of wills and settlements → online text (page 15 of 42)