of such brothers and sisters of John Waugh as had died previously to John Waugh's decease, should stand in the place of their parents; and it is perfectly immaterial, for the purpose of construing this bequest, whether such parents died before or after the date of the will. In Christopherson v. Naylor (a), the bequest was to each and every the child and children of the testator's brothers and sisters (who were named) which should be living at the time of his decease, except his nephew J. F.; but if any child or children of his said brothers and sisters (except J. F.) should happen to die in his lifetime and leave issue, then such issue were to take the share or shares of the parents. Three children of a sister of the testator died before the date of the will, leaving issue; and such issue were held not to be entitled under the bequest, because nothing was given to the issue of the testator's nephews and nieces, except by way of substitution; and the issue of such nephews and nieces as were dead before the date of the will could shew no objects of substitution—no original legatees in whose places they were to stand. That case is distinguishable from the present, because there the parents, in whose place the issue were to stand, were expressly described as brothers and sisters of the testator living at his death; and it is observable that, if the question had depended upon the words "shall happen to die in my lifetime," Sir William Grant seems to have inclined to acquiesce in the argument, that those words might have admitted of the construction "shall have happened to die," or "shall happen to be dead in my lifetime," so as to support a gift to issue of a niece who was dead at the date of the will. Christopherson v. Naylor, therefore, so far as it is applicable to the present case, is, in reality, a strong authority in favour of the Plaintiff; for here the words "shall have happened 1833. WAUGH v. WAUGH. (a) 1 Mer. 320. 1833. WAUGH v. happened to depart this life" naturally include a period antecedent to the date of the will, so that there is no necessity for resorting to the forced grammatical conWAUGH. struction, in which, however, Sir William Grant was prepared to acquiesce; and the language of this will does not necessarily confine the gift to such issue only as represented parents capable of taking in the character of original legatees; a circumstance which compelled the Court in Christopherson v. Naylor to hold the gift to the issue to be substitutionary. Mr. Bickersteth and Mr. Rogers, contrà. The gift to the children is plainly substitutionary in the event of the failure of the previous gift to such brothers and sisters as might have acquired a vested interest in the legacy if they had survived John Waugh; but Alexander Waugh could never have acquired such vested interest, for he was dead at the date of the will, and no substitution therefore could have been contemplated with respect to his issue. In Butter v. Ommaney (a), the gift was after the death of two persons to such children of B. as should be then living; and as to such of them as should be then dead leaving children, the testator directed that the children should stand in the place of their parents. The words "such of them as should be then dead" were stronger in favour of the claim of the children than in the present case, yet it was there held that the children of such children of B. as died in the testator's lifetime and were also all dead at the date of the will, took nothing under this bequest. There is the less ground in the present case for supposing that the testator intended to include Eleanor Waugh among the children of deceased brothers and sisters of John Waugh, (a) 4 Russ. 73. Waugh, because he gives her a large specific legacy, describing her as the daughter of his late nephew Alexander. Mr. Pemberton, in reply. The MASTER of the ROLLS. It is plain that the words used in the first part of the bequest would comprise Eleanor Waugh, for she was the child of Alexander Waugh, a brother of John, who had died before John; but by the subsequent part of the gift it is expressed, that the children of a deceased brother of John are to take only the share which their parent would have taken if living; by which is to be understood, would have taken under that bequest if living; and the parent of Eleanor, being dead at the time of making the will, could have taken nothing under that bequest, and therefore Eleanor will not share in the 5000l. This construction would be fortified, if it required such aid, by the special provision which the testator subsequently makes in his will for Eleanor as a child of a deceased brother of John. 1833. WAUGH บ. WAUGH. 1833. ROLLS. July 1. 8. A legacy of STORRS v. BENBOW. 500l. a piece A CODICIL to the will of William Townsend con to each child that may be born to either of the children of either of my brothers, law fully begotten, to be paid to each of them on his or her attaining the age of twentyone years, without be nefit of survivorship," does not include a child “Item, tained a bequest in the following words: I direct my executors to pay, by and out of my personal estate exclusively, the sum of 500l. a-piece to each child that may be born to either of the children of either of my brothers, lawfully begotten, to be paid to each of them on his or her attaining the age of twenty-one years, without benefit of survivorship." The question was, whether the Plaintiff, William Townsend Storrs, who was a grand-child of one of the testator's brothers, and who was born after the testator's death, was entitled to a legacy of 500l., under this born after the bequest. testator's death. Mr. Bickersteth and Mr. Parker, for the Plaintiff. Mr. Pemberton and Mr. Ching, contrà. The testator, having by his will given legacies of 500l. each to all the children of his nephews and nieces living at the date of his will, makes a similar provision in this codicil for such children of his nephews and nieces as might be born afterwards; and the question is, how far the words of futurity "may be born," can be extendedwhether they can be applied to all the children of the testator's nephews and nieces, who might be born at any time after the testator's decease; or whether the gift is to be confined to such children only as might be born between the date of the will and the death of the testator. The time at which the will speaks, namely, the testator's death, is the limit which ascertains the number of children children entitled to legacies under this bequest. A different construction would have the effect of leaving it uncertain how many legacies of 500l. were to be distributed until the death of all the testator's nephews and nieces, and consequently of postponing the distribution of the residue of the testator's personal estate until that period. Sprackling v. Ranier (a) is a case very nearly resembling the present. There the testator gave, in a certain event, a legacy to the sons and daughters of his daughter, lawfully begotten, or to be begotten, and it was held that the words to be begotten, could not be construed so as to include a child born after the death of the testator. So in Ringrose v. Bramham (b), where the testator gave to A.'s children 50l. to every child he hath by his wife, to be paid them as they shall come of age; and A. had eleven children at the date of the will, thirteen at the testator's death, and three born afterwards; the thirteen children living at the death of the testator were held to be entitled, but not the three born afterwards. Hill v. Chapman (c) and Davidson v. Dallas (d) are also authorities for the exclusion of the after-born children. Mr. Bickersteth in reply. Sprackling v. Ranier is a case of questionable authority, for the decision in that case would have excluded a child with which the testator's daughter might have been enceinte at his death, such child being lawfully begotten, and consequently clearly within the express terms of the gift. As to Ringrose v. Bramham, the ground upon which the two children, born between the date of the will and the testator's death, were let in, was, that as the will spoke at the testator's death, the word "hath," 1833. STORRS BENBOW. |