Waterloo Region Generations
A record of the people of Waterloo Region, Ontario.

Margaret Lucy Mence

Female Abt 1790 - 1842  (~ 52 years)


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  • Name Margaret Lucy Mence 
    Born Abt 1790  of, Sunbury, , Middlesex, England Find all individuals with events at this location 
    Gender Female 
    Name Margaret Lucy Lanphier 
    Eby ID Number Waterloo-112898 
    Died 1842 
    Person ID I112898  Generations
    Last Modified 22 Oct 2019 

    Family Dr. William Henry Lanphier, L. L. D.,   b. 1773, of, Sunbury, , Middlesex, England Find all individuals with events at this location,   d. 24 Mar 1823  (Age 50 years) 
    Children 
     1. Captain William Henry "Henry" Lanphier,   b. 3 Jul 1809, Sunbury-on-Thames, , London , England Find all individuals with events at this location,   d. 6 Jun 1875, Saint Leonards on Sea, , Sussex, England Find all individuals with events at this location  (Age 65 years)
     2. Thomas Halifax Lanphier,   b. 17 Oct 1811, Sunbury, , Middlesex, England Find all individuals with events at this location,   d. 21 Oct 1872, Woolwich Twp., Waterloo Region, Ontario, Canada Find all individuals with events at this location  (Age 61 years)
    Last Modified 22 Oct 2019 
    Family ID F46517  Group Sheet  |  Family Chart

  • Photos
    Margaret Lucy Mence
    Margaret Lucy Mence
    Ancestry.com

  • Notes 
    • Unproofed transcript from Google Book Scanning Project.

      RECENT ENGLISH. DECISIONS .
      Vice-Chancellor Kindersley's Court.

      LANPHIER 1. BUCK.

      A testator, having given to his nieces a life interest in his residuary estate, directed that, "in case all their children should die either in their lifetimes, or after their decease, under age, and without lawful issue," then his trustees should "pay, assign, and transfer" the shares of such nieces equally amongst all his nephews and nieces who should be living at such time or times, and "to the issue of such of them as may be then dead (such issue to be entitled to its parent's share only)." He further directed, that such benefit of survivorship should not, as to a part of the funds given, operate in the case of one of the nieces, but that her share should be paid in the same manner as he had directed with respect to a legacy to his niece E. G., "in case of her decease without issue, or their all dying under age, and without issue." The direction with respect to the legacy to E. G. was expressed in the same terms as those used in the gift to the nieces generally, without express mention of death without issue. M. B., one of the nieces, died unmarried, with respect to her share: Held,

      1st. That there was sufficient indication of intention that the gift over should take effect.

      2dly. That "issue" meant children.

      3dly. That the gift to issue of deceased nephews and nieces was original, not substitutionary.

      4thly. That, whether original or substitutionary, such issue need not survive the tenant for life in order to entitle them to take.

      5thly. Nor need they have survived their parents, the gift being original; secus, if it had been substitutionary.

      6thly. The gift to the issue was in joint tenancy.

      PETITION.This was an application for payment out of court, and distribution, of a sum of 26271. Consols, the rights of the several claimants depending on the construction of the will of the Rev. Thomas Bond. By this will, dated the 7th March 1810, the testator gave his real estate to trustees, upon trusts for conversion; and after giving his wife a life estate in the residue, and dealing with a portion of the residue after her death, as to the remainder, he directed his trustees, after the death of the wife, to "pay, assign, and transfer the sum of 1000l., other part of the rest and residue of the said moneys and personal estate, to each and every my nephews and nieces, the children of my said deceased sister Elizabeth Buck (except Thomas Buck). But in case of the death of any of my said nephews and nieces before my said wife, and without leaving lawful issue, then I give and bequeath the respective sums of 1000l., of them, my said nephews and nieces so dying as aforesaid, in equal shares and proportions, unto and amongst all and every my surviving nephews and nieces, the children of my said deceased sister Elizabeth Buck (including the said Thomas Buck), who shall be living at such the death of my said wife, and to the issue of such of them as may be then dead, in equal shares and proportions (such issue to be entitled to the parent's share only)." The testator then directed his trustees to "pay, assign, and transfer" the surplus and remainder of his residuary estate, upon trusts similarly expressed, for the benefit of all his nephews and nieces, children of his two sisters Margaret Mence and Elizabeth Buck, and their issue "(such issue to be

      entitled to its parent's share only)." WOL., XIV.'9615

      As to the 1000l. legacy to one of the nieces, Elizabeth Gilman, the testator provided, that in case all her children should die either in her lifetime or after her decease under age, and without having lawful issue, his trustees should "pay, assign, and transfer" the said legacy so given to his said niece Elizabeth Gilman, "unto and equally amongst all and every my nephews and nieces, th9 children of my said late deceased sister Elizabeth Buck, who shall be living at that time, and to the issue of such of them as may be then dead (such issue to be entitled to its parent's share only)."

      The will further provided that the shares of the nieces should be for their separate use, and should after their deaths be divided amongst their respective children; and then as to the snares of the surplus of the residuary estate bequeathed, as above stated, to all the nephews and nieces, directed that, in case all the children of the testator's other nieces, or of any or either of them, should die either in their respective lifetimes, or after their decease, under age, and without having lawful issue, then the trustees were to pay, assign, and transfer such shares of the testator's said other nieces "unto and equally amongst all and every my nephews and nieces, the children of my said late deceased sister Elizabeth Buck, and of my said sister Mary Mence, who shall be living at such time or times, and to the issue of such of them as may be then dead (such issue to be entitled to its parent's share only), except as to the sums of 1000l. so given to my other nieces as aforesaid, which I direct shall not survive to my said niece Margaret Lanphier or her children, but be paid and payable in the same manner as I have directed the 1000l. given to my niece Elizabeth (Gilman), in case of her decease without issue, or their all dying under age and without issue."

      The testator died in 1814, and his widow, the tenant for life, in 1840. The one sister, Elizabeth Buck, had six children - James and Thomas, who died without having been married, the one in 1810 (in the testator's lifetime), the other in 1855; Mary, who died a spinster in 1864, and in respect of whose interest under the will the present petition was preferred; the defendant, Ann, also a spinster; John, who died in 1860, leaving issue Elizabeth Ann, a spinster, now living, and a respondent to the petition, and five grandchildren, infants (children of John Henry Buck, who died in 1859), also respondents; and, sixthly, Elizabeth Margaret, who married a Mr. Gilman, and died in 1834, leaving issue Edward, the present petitioner, and Margaret, who married a Mr. Royle, and died in 1845 without issue. The other sister, Mary Mence, died in 1816, leaving issue Margaret Lucy, who married a Mr. Lanphier, and died in 1852, leaving issue William Henry and Thomas Halifax, now living, and Margaret, who married a Mr. Press, and died in 1842, leaving three children. Both Mrs. Royle and Mrs. Press had settled their interests under the testator's will. The questions now arising were - First, whether Mary Buck, having died without having had issue, the gift over took effect : Secondly, whether the term "issue" must be confined to children, or extended to remoter descendants? Thirdly, whether the gift over was original or substitutionary? Fourthly, in either case must the persons entitled to take survive the tenant for life 2 and also, Fifthly, must they survive their own parents? Sixthly, was this a gift to the issue as joint tenants, or as tenants in common ?

      Erskine, for the petitioner Edward Gilman, contended that the only parties entitled to share were the children of a sister living at the death of the tenant for life and children then living of deceased children, per stirpes; thus excluding grandchildren of a sister who died in the lifetime of the tenant for life, and all great-grandchildren of a sister

      Chapman Barber, for the trustees of Mrs. Royle's settlement, followed in a similar sense, except that he contended for the admission of grandchildren of sisters who did not survive the tenant for life.

      Glasse, Q.C., for the executor of the will of Mary Buck, argued that the gift over not taking effect according to the terms of the will, the original gift to Mary Buck remained in force.

      Boyle, for Ann Buck.
      Lindley, for the sons of Margaret Lanphier.
      Baily, Q.C., for one of the children of Mrs. Press; and

      Toller, Q. C., for her two remaining children, argued that great-grandchildren were entitled to a share in the fund.

      Longley, for the five infant children of John Henry Buck, in the same interest.

      Erskine, in reply.

      The following authorities were cited on the several points: - First, 2 Jarm. Wills 667, 2d ed.; Jones v. Westcombe, 1 Eq. Ca. Ab. 245; Meadows v. Parry, 1 W. & B. 124; Osborn v. Bellman, 2 Giff. 593; Mackinnon v. Sewell, 2 My. & K. 202; Lassence v. Tierney, 1 Mac. & G. 561; and Warren v. Rudall 4 Kay & J. 603; s. c., 9 H. L. C. 428. Secondly, 2 Jarm. Wills 177, 3d ed.: Sibley v. Perry, 7 Wes. 522; Lyon v. Coward, 15 Sim. 290; Loring v. Thomas, 1 Drew. & Sm. 497; 6 Jur. N. S. 1115; Bradshaw v. Melling, 19 Beav. 417; Ross v. Ross, 20 Id. 645; Stevenson v. Abington, 31. Id. 305; 9 Jur. N. S. 1065; Re Corrie's Will, 32 Beav. 426; Barker v. Barker, 5 De G. & S. 753; Penny v. Clarke, 1 De G., F. & J. 425; and Re Pell's Trust, 3 Id. 292. Thirdly, Hawk. Wills 251, 253; Pearson v. Stephens, 5 Bligh N. S. 203; Macgregor v. Macgregor, 2 Coll. 192; Bennett v. Merriman, 6 Beav. 360; and Thompson v. Clive, 23 Id. 283. Fourthly and fifthly, Hulme v. Hulme, 9 Sim. 644; Whittell v. Dudin, 2 J. & W. 279; Humfrey v. Humfrey, 2 Drew. & Sm.49; Mayer v. Townsend, 3 Beav. 443; Masters v. Scales, 13 Id. 60; Watkins v. Weston, 8 Law T. N. S. 406; Harcourt v. Harcourt, 26 L. J. Ch. 536; Re Bennett, 3 Kay & J. 280; Re Wildman's Trusts, 1 Johns. & H. 299; Norman v. Kynaston, 3 De G., F. & J. 29; and several of the cases cited above on the other points. Sixthly, Harcourt v. Harcourt, ubi sup., and Penny v. Clarke, ubi sup. Judgment reserved.

      Sir R. T. KINDERSLEY, W. C. - The question upon this petition relates to the share of Mary Buck, the daughter of Elizabeth Buck, to whom a legacy of 1000l., and a share in the residue of his estate, was bequeathed by the testator, the Rev. Thomas Bond. There is a gift over, and Mary Buck having died unmarried, of course the gift over to her children cannot take effect, and the question is, who takes under it? First, however, does the gift over take effect at all ? Has the event happened on which it was to take effect? If it has, then the other questions arise. Applying the language of the will to the case of Mary Buck, the gift over is to take effect "if all Mary Buck's children shall die in her lifetime, or after her decease under age, and without having lawful issue." But Mary Buck never had children, and so, according to the strict terms of the will, the event has not happened. But there are many cases in which it has been held, that although the mode of dying with respect to leaving issue, has not happened precisely as prescribed, yet the testator's intention was, that the gift over should take effect, in whatever manner the failure of issue might occur. Meadows v. Parry, supra, is the case which bears most strongly on this point. In the present case there is an indication of the testator's intention, for in the general gift over he refers to the particular provision with respect to Mrs. Gilman's share; the same language is used in the two provisions, but in the former he speaks of a further possibility, as being Mrs. Gilman's death without issue, and therefore it is clear that he intended the gift over to take effect in the event of Mary Buck never having had a child. The further questions, therefore, arise, the first of which is, who are meant by the term "issue?" Children, or issue in any degree of remoteness? Secondly, whatever it means, must such children or issue survive the tenant for life (Mary Buck) in order to take : with regard to which we must consider the effect of the words "pay, assign, and transfer." Thirdly, supposing it not necessary that such children or issue should survive the tenant for life, must they be living at the death of their respective parents? Fourthly, whether such children or issue shall take as joint tenants, or as tenants in common ? As to the first point, I think that the direction that the "issue shall be entitled to the parent's share only," clearly shows that "issue" means children. Many cases have decided this, and Sibley v. Perry, supra, is clear on the subject. Then comes the question, whether the children of nephews and nieces must survive the tenant for life, or must those who died in the lifetime of Mary Buck be excluded from the gift : It appears to me, that much difficulty would be removed by applying to these questions those rules and principles which are generally applied in the construction of wills. A well-known canon of construction is, that where a testator has used certain language, the court must not interpolate any clause or condition, unless the context renders it necessary. The court has no right to say that it is extremely probable that if it had occurred to the testator he would have done one thing or another. Another rule is, that if there be a gift in trust for A. for life, and after his death in trust for his children equally, all A.'s children take whether they survive him or no; so, if the gift had been "after A.'s death in trust for the children of B.," the result would have been the same ; all B.'s children would have taken whether they survived A. or no, and in such case whether they survived their own parent or no. Another rule is this: - If the gift is in trust for A. for life, and after his death for C. and D. and the children of B., they all take; and it makes no difference whether the words are "in trust for," or "to pay, assign, and transfer to." It is true, that in some cases it has been said you cannot "pay" to a dead person; but that argument applies equally to "holding in trust for;" the weight of authority is in favor of my view, and I think that the words "pay, assign, and transfer" do not affect the question as to who are to take. Here the gift is to two classes, the nephews and nieces, and the issue of such of them as might be dead; and this raises the question as to original or substitutionary gifts. The distinction between the two appears to me to be very plain. Is this an original gift to the issue, or is it a gift to them by way of substitution? Clearly it is as much original to them as it is to the nephews and nieces. Taking the simple case of a gift "to A. for life, and after his death without issue, to all my other nephews and nieces; but if any one of them die before the tenant for life, then to the issue of the one so dying;" this is a gift by way of substitution, because in the first instance the testator gives expressly to the parent; not only to those nephews and nieces who may be living at the death of the tenant for life, but an absolute gift to all; and then if any of them die before the tenant for life, he divests the interest, and substitutes the issue for the one so dying. If the gift had been to all the nephews and nieces, without saying "who shall be living at the death of the tenant for life," and then proceeding to add, "if any die in the lifetime of the tenant for life, I shall give to the issue the share I have given to the parent," the effect would have been that, with regard to any one who did not survive the tenant for life, but yet died without issue, the original gift would have remained undivested; on the other hand, if the gift be in the present form, namely, to those living at the death of the tenant for life, and then an independent gift to the issue of such of them as may be then dead, if any of the first class of persons die in the lifetime of the tenant for life, there is no gift to that person, and therefore there would be a great difference in the effect, as regarded the nephews and nieces themselves. The distinction, therefore, is not a trivial one. In the present case the gift is clearly an original one to the issue; it is a gift to such persons as answer the description of nephews and nieces, and an original gift to the issue of such of them as have died at the time specified; that is, the issue of persons who do not come within the first class. I may here observe, that in the other case (Re Turner), which I have reserved judgment, the gift is by substitution. Many cases have arisen where the gift to the parent and that to the children is made contingent on the same event; and the form of the gift is not to such nephews and nieces as shall be living at the death of the tenant for life, and the issue of such of them as may be then dead, but a gift "to all my nephews and nieces if they shall be living at the death of the tenant for life; but if they shall be then dead, to their children." Now, as in such cases there is a contingent gift to the parent, it appears to me that the gift to the children is by way of substitution. In the present case, however, there being an original gift to the children, as well as to the nephews and nieces, all we have to do is to ascertain who come within those two classes. But it is contended that we must introduce into the will a provision, that none shall take unless they survive the tenant for life. Why should that be introduced, when nothing of the kind is found in the will? In a case where the gift is an original gift to the issue, why are they to be put under such a condition, when if the gift had been to A. for life, and after A.'s death, then to the children of B., there would have been no such condition ? Even if the gift had been by substitution, as "to all the nephews and nieces," without saying "surviving the tenant for life," and if any of them should die in the lifetime of the tenant for life, that then the issue of that one so dying should take the share which was first given to the parent, why should such a condition be inserted ? It appears to me, that whether the gift is original or only substitutionary, unless the testator says that the issue must survive the tenant for life, the court has no right to introduce any such condition. The ground assigned for this contention appears to be, that it is not likely that the testator would have annexed the condition to the gift to the parents, and not have annexed it to the gift to the children; but I do not think that a sufficient ground for inserting the condition. The conclusion, therefore, at which I had arrived is, that whether the gift be original or by substitution, the issue need not survive the tenant for life. Another question which has been raised is this - assuming- that the children of nephews and nieces, in order to take, need not survive the tenant for life, must they survive their own parent ? Supposing a nephew or niece died in the lifetime of the tenant for life, and had children, some one of whom had predeceased its parent, would such child take If it be an original gift to the issue, why should such a condition be imposed ? Where the gift is by substitution, there is an element which prevents the application of the principle I have stated, because then it is not an original gift to the issue, but an absolute gift to the nephews and nieces; and then, in case of any of them dying in the lifetime of the tenant for life, to those who are substituted in their place; but until the death of the nephew or niece, no substitution takes place, or can take place; and in such a case, of course, dead persons are not substituted; and therefore I think the rule is, that if the gift be an original one to the issue, they need not survive their own parent; but that if it be by substitution, they must survive their own parent in order to take by substitution. It must be observed, that there are cases where, though the gift to the issue is original, and where, according to the general principle, it would not be necessary for the children to have survived their parent, the testator, by his language, has precluded children who did not survive their parent from taking; as in a gift to such as survive the tenant for life, and to the issue of such of them as shall die in his lifetime, leaving issue; in such a case the issue who predeceased their own parent would not take, being excluded by the terms of the will. There remains one more question - whether the children who take their parents' share take it as tenants in common, or as joint tenants. I find nothing in the testator's language importing severance. In Penny v. Clarke, 1 De G., F. & J. 425, Lord Justice TURNER thought that, although the parents took as tenants in common, it did not follow that the issue took as the parents, for they might take as joint tenants. I must apply that principle here. With regard to this question, it must be observed, that some of the children of the nieces, viz. Mrs. Royle and Mrs. Press, have assigned their interests; this operated as a severance of their interests in their parents' shares, and therefore, the joint tenancy would not apply to their shares. It appears to me, that the whole effect of the will is, that with regard to the fund representing the 1000l. legacy, one-third will go to Ann Buck, one-third to Elizabeth Ann Buck, the daughter of John Henry Buck; she taking by survivorship, having survived her three brothers. The remaining one-third will go to the petitioner Edward Gilman and the trustees of Mrs. Royle's settlement equally. With regard to the share of the residue, one-fourth will go to Ann Buck, onefourth to Elizabeth Ann Buck, one-fourth equally between the petitioner Edward Gilman and Mrs. Royle's trustees, and the remaining fourth equally between William Henry Lanphier, Thomas Halifax Lanphier, and Mrs. Press on the other hand, her marriage settlement having severed the joint tenancy. With regard to the authorities, I have gone through them carefully, and I find the result to be as follows:'96So far as relates to the question (where the gift is an original gift to the children of nephews and nieces dying before the tenant for life), whether the children to take must survive the tenant for life, the opinions are divided. The late Vice-Chancellor of England was in favor of the view I have arrived at, and so is Lord Justice TURNER, Vice-Chancellor STUART, and Vice-Chancellor Wood. I think I may say, that the judges whose opinions are against my view are Lord Justice KNIGHT BRUCE and the Master of the Rolls. At the same time, I find that each of these judges in one case decided in accordance with the view which I think correct. I think, therefore, that it may fairly be said, that the preponderance of opinion is in favor of the view which I have taken of the present case. Where the gift is by substitution, Lord Justice KNIGHT BRUCE and the Master of the Rolls were of opinion that the children must survive the tenant for life. In the case of Pearson v. Stephens, 5 Bligh N. S. 203, the point in question was never raised by counsel, but in the order of the House of Lords the condition is imposed of surviving the tenant for life; but under those circumstances I do not consider it any authority, and I must consider that where the gift is by substitution, the issue need not survive the tenant for life. Lord LANGDALE was also of opinion that they need not survive the tenant for life, and so decided in Masters v. Scales, 13 Beav. 60, although in Bennett vs. Merriman, 6 Id. 360, he had doubted it, and had come to a different conclusion; and ViceChancellor WooD, in Bennett's Trusts, 3 Kay & J. 280, decided in accordance with my view. With regard to the question, whether the issue must survive their own parent, I think, as I have already stated, the principle to be applied is, that where the gift to the issue is original, it is not necessary; but that when it is substitutionary, it is necessary. Two cases came before myself in which the opinions are at variance; viz. Harcourt v. Harcourt, 26 L. J. Ch. 589, in which I stated the same principles; and Humfrey v. Humfrey, 2 Drew. & S. 49, in which I consider that I ought not to go against the authorities, and decided, reluctantly, not to include the children who had predeceased their own parent. But now having gone through all the authorities, and very much considered the point, I think that I should not be justified in adhering to that view; and, therefore, I must hold that, where the gift is original to the issue, they need not survive their own parent, but that where the gift to them is by substitution, it is necessary."

      Vice-Chancellor Kindersley's Court.
      I?E TURNER.

      A testator bequeathed 500l. upon trust for his daughter for life, and directed that if she should die without issue (which event happened) the fund should be paid to his four sons, share and share alike, but in case any or either of his sons should be then dead, he directed that the share of him or them so being dead should be paid to his or their child or children, share and share alike, but if there should be no child, then to his or their legal personal representatives:

      Held, that the gift to the son's children was substitutionary, and, therefore, that such children as did not survive their parents were excluded from the terms of the gift, though it was not necessary that such children should survive the tenant for life:

      Held, also, that no exception could be made in the present case to the general rule, that the term "legal personal representatives" must be construed as "executors and administrators."

      1 See note at the end of the following case, post, p. 238.

      THIS was a petition for payment out of court and division of a fund, involving questions of a similar nature to those which were raised in the previous petition (Lanphier v. Buck), and judgment had therefore been reserved in the former case till the arguments in the present case had been concluded. The judgments in each petition were delivered together. The facts of the present petition were these : - Thomas Turner, by his will dated the 5th April 1805, bequeathed the sum of 500l. to trustees upon trust, to pay the income to his daughter Margaret Moyle for her life, and after her decease to apply the interest of the said sum of 500l. towards the maintenance and education of such child or children as she should leave at her decease, until he, she, or they should attain his, her, or their age or ages of twenty-one years, and upon his, her, or their attaining that age, to pay over and equally divide the said sum of 500l. between and amongst them, if more than one share and share alike, but if there should be but one child then to such only child; and if his said daughter should die without issue, then he willed and directed, "That the said sum of 500l., together with the interest thereof, if any then due, shall be paid unto and amongst my sons Thomas, John, William, and Zachary Turner, share and share alike; but in case any or either of my said sons shall be then dead, I will and direct that the part or share of him or them so being dead shall be paid to his or their child or children, share and share alike if more than one, and if but one, then to such only child; but if there be no child, then to his or their legal representatives, and upon no other trust whatever." The testator gave his residuary personal estate upon the same trusts as he had given the 500l. In 1806 the testator died, leaving his five children mentioned in his will surviving him, they being also his sole next of kin. In 1829 Thomas the son died; in April 1835 Zachary died a bachelor; in June 1835 William died; in 1839 John died; in 1864 Margaret Moyle died, without having ever had a child. The sons, Thomas, William, and John, had children, some of whom died in the testator's lifetime or early infancy; others died in the lifetime of their respective fathers, and some, having survived their fathers, died in the lifetime of Margaret Moyle, the tenant for life; some survived Margaret Moyle.

      Differences having arisen as to the division of the 500l. and the residue, the trustees paid the funds into court. The present petition was by the grandchildren of the testator who survived Margaret Moyle.

      The following questions arose : -

      First, as to the shares of the sons Thomas, William, and John, whether the classes of children to take were all the children in being at the death of the testator or subsequently born ; or only such of them as having survived their own parents survived the tenant for life.

      Secondly, as to Zachary's share, whether in the gift of the 500l. the words "legal representatives" meant " executors or administrators" or "next of kin" according to the Statute of Distributions.

      Thirdly, whether such next of kin, if it were so held, were to be ascertained at the death of Zachary or at the death of the tenant for life.

      Fourthly, whether Mrs. Moyle, the tenant for life, was included.

      Fifthly, whether they took in equal shares per capita, or in unequal shares per stirpes ; and

      Sixthly, whether they took as tenants in common or as joint tenants.

      Shapter, Q. C., for the petitioner.

      E. Charles, for respondents, being grandchildren of the testator I who survived their own parents, but died in the lifetime of the tenant for life.

      C. A. Turner for other respondents, being children of testator's sons who, being alive at the testator's death, died in their father's lifetime.

      Shapter, Q. C., in reply.

      Cases cited: Pearson v. Stephen, 5 Bligh. N. S. 203;' Christopherson v. Naylor, 1 Mer. 320 ; Salisbury v. Petty, 3 Hare 86, 93; Eyre v. Marsden, 2 Keen 564; Loriny v. Thomas, 1 Dr. & Sm. 497; Harcourt v. Harcourt, 26 L. J. N. S. 536, Ch.; Humfrey v. Humfrey, 2 Dr. & Sm. 55; Bennett v. Merriman, 6 Beav. 360; Macyregor v. Macyreyor, 2 C011. C. C. 192; Holyate v. Jennings, 11 L. T. Rep. N. S. 501; Erause v. Cooper, 1 J. & H. 210; Masters v. Scales, 13 Beav.60; Re Kirkman's Trusts, 3 De G. & J. 558; Penny v. Clarke, 1 De G. F. & J. 425; Re Corrie's Will, 32 Beav. 426; Booth v. Vicars, 1 Coll. C. C. 6; Walker v. Marquis Camden, 16 Sim. 329; Smith v. Palmer, 7 Hare 229; Barker v. Barker, 5 De G. & S. 759; Re Bennett's Will, 3 K. & J. 281; Re Wildman's Trusts, 1 J. & H. 299; Re Pell's Trusts, 3 De G. F. & J. 291; Askling v. Knowles, 3 Drew 593; King v. Cleve. land, 4 De G. & J. 482; Bullock v. Downe, 9 H. L. Cas. 1; Reed v. Snell, 2 Atk. 57; Leek v. McDowell, 32 Beav. 28.

      The WICE-CHANCELLOR. - We find in this case an illustration of what I stated in the case of Lanphier v. Buck, as to a gift by substitution, there being an absolute gift in the first instance, with a divesting clause, and on this point the observations I made in the other case apply to this. The next question is, what is meant by "legal representatives." On the one hand, it is contended that it means "executors or administrators;" on the other hand, that it means "next of kin." If it means executors or administrators, then there is an end to all question; but if it means next of kin, the same questions arise as in Lanphier v. Buck, and the same observations apply to this case. The rule is, that representatives or legal representatives primarily mean executors or administrators, and in order to put any other meaning on it, you must find some reason for doing so in the will. But it appears to me that, so far from finding anything in the will to the contrary, we find that the testator intended it to be so used. Mrs. Moyle lived till 1864, and died without leaving any children, upon which event the gift over was to take effect, and the fund to go over to the four sons. Zachary, one of the sons, had died a bachelor, in the lifetime of Mrs. Moyle, and therefore the question is, whether under the term "representatives," Zachary's share should go to the executors or administrators, as part of his assets, or to his next of kin. The testator had given to Zachary an absolute interest; it is true he divests it if Zachary died in the sister's lifetime, and then it was to go to his children; but if there were no child. ren, the original gift should remain, and the share go to his executors and administrators; and it appears to me that such is the intention shown on the will. In many cases "representatives" has been construed "next of kin," because some such words as "share and share alike" have been found joined to them, and such words could not apply to executors; the words "unto and among" also implying a tenancy in common, have had the same effect, being contrary to the position of executors; and in the same way a gift to representatives "to take per capita and not per stirpes." In the case of Robinson v. Smith, 6 Sim. 47, where the testator gave a fund to the husband of his daughter as trustee for the daughter for life, and after her death upon trust for such persons as she should appoint; and, in default of appointment, in trust for her legal representatives; the term was held to be next of kin, because the husband, as trustee, was directed to pay it, whereas, if it meant representatives under the statute, he would retain it instead of paying it. It therefore appears to me that the share of Zachary goes to his legal personal representatives as part of his estate; and as to that share the other questions do not arise. With regard to the other shares, the gift being substitutionary, the same questions arise as in Lanphier v. Buck, and all the conclusions at which I arrived in that case apply here, except that in this case, the gift to the children being substitutionary, I am of opinion that such children as did not survive their own parent will

      be excluded.

      The accidental circumstance of two successive petitions, raising similar questions of construction, coming on for argument before Vice-Chancellor KINDERSLEY on the same day, enabled his Honor to deliver a judgment in the principal case in which the whole question of gifts, by which children are substituted in the place of their parents, is carefully and clearly summed up, and one, at least, of the unsettled points in connection with the subject is settled.

      The distinction between cases of independent and substitutionary gifts to the issue of a class of children has been long recognised. The former cases occur, wherever the children, and the issue of children from two distinct classes, and the objects of the second class take under a substantive gift, and not expressly by way of substitution, for the members of the first class, e.g., a gift to the children of A., and the

      Costs out of the fund.

      issue of such children of A. as shall have died before a given period. There the gift to the issue of the children is said to be an independent gift. The latter cases occur wherever there is first a gift to a class of children, and then a gift over of the shares of members of this class upon their respective deaths to their issue, e. g., a gift to the children of A. with a gift over in case any of such children of A. as shall have died before a given period, or a gift to the children of A. living at a certain period, or the issue of such of them as shall have previously died. There the gift to the issue of the children is said to be substitutionary. It is not easy to see any real distinction in principle between these cases, and, probably, if all the decisions upon the question of the vesting of legacies could be disregarded, and what has been called "the pole-star in the construction of devises," viz.,

      the testator's intention, were to be followed, all the cases of the kind we have mentioned, in which the obvious intention is to put the issue in the place of their parents in a certain event at a certain time, would be governed by the same rule. But, as it happens, the distinction has been firmly established by authority, and it becomes necessary to accept it as the basis upon which further developments upon the same subject must proceed. In accordance with this distinction, it has been determined that under a (so-called) independent gift to a class of children living at a given period, and the issue of such of those children as shall be then dead, the issue of a child dying in the testator's lifetime or dead at the date of the will, are entitled (Colthurst v. Carter, 15 Beav. 421); whereas, under a (so-called) substitutionary gift to a class of children living at a given period with a gift over of the shares of members of the class to their issue, the gift over would not comprise the issue of a child dead at the date of the will, although it would, unless preceded by a life interest, comprise the issue of a child dying in the lifetime of the testator: Cort v. Winder, 1 Coll. 320. If a previous life interest were interposed, the substitutionary gift would only include the issue of a child who survived the testator: Iwe v. King, 16 Beav. 56. These cases, however, only determined what classes of issue were entitled to take under gifts of this character. They did not decide what was the effect upon the shares of members of such classes of their own deaths before the period fixed for the distribution or the property. It is also to be observed that in these cases there was no express direction that issue should take only their parents' shares. Two principal questions, therefore, remained to be considered. First. Can any member of a class of issue take who pre

      deceases the child through whom he claims? Secondly. Must every member of the class of issue survive the period of distribution where this contingency is expressly attached to the gift to the children, but is omitted in the gift to the issue of such children? The Vice-Chancellor has dealt with both these questions in the principal cases, and has determined as to the first that in the case of a (so-called) independent gift (Lanphier v. Buck, ante 224), every member of a class of issue is entitled to take whether he survives the child through whom he claims or not, but that in a case of a (so-called) substitutionary gift (Re Turner, ante 234) no issue of a child can take who does not survive his own parent; and as to the second question, that whether the gift be in form independent or substitutionary, no distinction is caused by the circumstance mentioned, but that, in the absence of express words, the court will not imply in the gift to the issue a contingency similar to that attached to the interest of the parents. We must, we suppose, accept the decision on the first point, as the necessary consequence of the previous authorities as to the distinction between (so-called) independent and substitutionary gifts. We regret that the Vice-Chancellor felt bound to observe this distinction, and that he did not decide, broadly, that all cases where, as in the principal cases, there is an express direction that the issue shall take the parent's share, and the intention is thereby shown to place the issue in the place of the parent, no issue can take any vested interest during the parent's lifetime, but that the members of the class of issue to take are to be ascertained at the death of the parent. If this course had been adopted these gifts, which may be denominated "re presentative gifts," would have been brought under a single rule of construcLyon v. Coward, 15 Sim. 287 (1846), Vice-Chancellor SHADWELL held that where the gift to the issue was independent in point of form, the contingency ought not to be implied. It is to be observed that Macgregor v, Macgregor Was not cited in this case. In Masters v. Scales, 13 Beav. 60 (1850), Lord LANGDALE refused to import the contingency into a substitutionary gift. Vice-Chancellor PARKER followed Lyon v. Coward in Barker v. Barker, 5 De G. & Sm. 753 (1852), as also did Vice-Chancellor KINDERSLEY in Harcourt v. Harcourt, 5 W. R. 478 (1857), and Vice-Chancellor WooD in Re Bennett's Trust, 3 K. & J. 281 (1857), all cases of gifts to issue, independent in point of form, coupled with directions that the issue should take their parents' shares only. In Penny v. Clarke, Johns. 621 (1859), Vice-Chancellor WooD decided in the same way in a precisely similar case of independent gift, and his decision was confirmed on appeal to the Lord Justices (8 W. R. 286; 1 De G. F. & J. 425), in consequence of Lord Justice TURNER concurring in the view of the judge in the court below. Lord Justice KNIGHT BRUCE differed, considering that his opinion, as expressed in Macgregor v. Macgregor, ought also to be applied in the case of gifts in a so-called independent form. In Crause v. Cooper, 1 J. & H. 210 (1859), Vice-Chancellor WooD hinted (the point did not call for a decision) that a different rule should be applied in the case of a purely substitutionary gift, and that there the contingency which was expressed in the gift to the parents should be implied in the gift to the issue. In Re Wildman's Trust, 1 J. & H. 299 (1860), ViceChancellor WOOD considered the bequest to be an independent gift to the issue, and refused to import words of contingency. A similar conclusion was arrived at in Pell's Trust, 9 W. R. 733; 3 De G. F. & J. 291 (1861), where, in a case of independent gift, Lord Justice TURNER approved of the decision of Vice-Chancellor STUART in the court below. Lord Justice KNIGHT BRUCE still adhered to the principle of his decision in Macgregor v. Macgregor. In Humfrey v. Humfrey, 10 W. R. 286, 2 Dr. & Sm. 49 (1862), Vice-Chancellor KINDERSLEY considered himself bound by previous authorities to hold that in a case of independent gift to issue those who pre-deceased their own parent, as well as the tenant for life, were excluded. Lastly, in Corrie's Will, 32 Beav. 426, and Holgate v. Jennings, 5 N. R. 120, the present Master of the Rolls, in cases of substitutionary gifts, approved and followed the decision of Lord Justice KNIGHT BRUCE in Macgregor v. Macgregor. The result of the consideration of these authorities is that Lord Justice KNIGHT BRUCE considers that the words of contingency expressed in the gift to the parents ought to be implied in the gift to the children, whether the gift be, in form, independent or substitutionary; that Sir JoHN Roy ILLY considers that they ought to be implied in cases of

      tion, reasonable in principle and convenient in practice. We think that there was no absolute necessity for extending the distinction we have pointed out between independent and subsitutionary gifts to representative gifts, and there was a strong argument in favor of disregarding it, derived from the circumstance that in both cases the intention of the testator to place the living issue in the place of their dead parents, was clearly shown by the words used that they should take only their parent's share. We cordially concur in the view of the Vice-Chancellor on the second point, that the circumstance that the parents are required to survive the tenant for life in order to take any share, does not imply that none of the issue of the parents can take unless they themselves survive the same period. As there has been much conflict of judicial opinion upon this point, it may be well to give, in brief chronological order, the results of the various reported cases. In Pearson v. Stephen, 5 Bl. 203 (1831), it was assumed, without argument (the time not having arrived for deciding the point), that in a socalled independent gift, viz., to A. for life, remainder to the five sons of the testator living at the death of A., and their respective issue, no issue of a deceased son could take who did not survive the tenant for life. In Bennet v. Merriman, 6 Beav. 360 (1843), where the gift was substitutionary, Lord LANGDALE held the words of contingency expressed in the case of the parents, ought to be implied in the case of the issue. A similar conclusion was arrived at by Lord Justice KNIGHT BRUCE (then ViceChancellor), in Macgregor v. Macgregor, 2 Coll. 193 (1845), in the case of a gift independent in point of form. In both these cases there were directions that the issue should only take their parents' share. On the other hand, in

      Court of Queen's Bench

      AUSTIN 1..

      purely substitutionary gifts; that Lord LANGDALE was of opinion that they ought not to be implied in cases of substitutionary gifts; that Vice-Chancellor LEACH, Vice-Chancellor SHADw ELL, Vice-Chancellor PARKER, Lord Justice TURNER, Vice-Chancellors KINDERsLEY, STUART, and Wood have decided against the implication in cases of independent gifts; but that Vice-Chancellor WooD doubted the propriety of extending this decision to the case of gifts by way of substitution.

      Vice-Chancellor KINDERSLEY has decided, in the principal cases, that in gifts of the character in question, there is no distinction between (so-called) independent and substitutionary gifts, but that words of contingency, pointing to the necessity of surviving the period of distribution, which are expressed in the bequests of the parents, are not to be implied in the bequests to the issue. We trust that the decision in this respect will be acquiesced in, and that this point may be considered as now settled. - Solicitors' Journal.

      BUNYARD.

      From: University of Pennsylvania Law Review, Volume 14 1866

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