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as aforesaid, stand and be possessed of and interested in the said sum of 2500l. 3 per cent. bank annuities, upon trust to pay, transfer, and assign the same unto the said Peter Elmsley, party thereto, in case he should be then living, and in case the said Peter Elmsley should not be then living, then unto such person or persons, and to and for such ends, intents, and purposes, as he the said Peter Elmsley, at any time or times during his natural life, by any deed or writing to be by him sealed and delivered in the presence of and attested by two or more credible witnesses, or by his last will and testament in writing, or any codicil thereto, should direct or appoint; and in default of such direction or appointment, upon trust to pay, transfer, and assign the said sum of 25001. 3 per cent. bank annuities to such person or persons as should at the time of the decease of the said Peter Elmsley be the next of kin of him the said Peter Elmsley, and to and for no other use, trust, intent, or purpose whatsoever.
Peter Elmsley died on the 8th of March 1825, without having made any appointment, leaving his brother Alexander Elmsley and a nephew and two nieces, children of John Elmsley a deceased brother, surviving him. Alexander Elmsley died on the 4th of August 1831, unmarried, and without issue. The bill was filed by the nephew and nieces of the settlor against the surviving trustee of the settlement and the personal representatives of Alexander Elmsley.
Two questions were made in the cause; first, whether the limitation over was, in the events which had happened, a limitation to the next of kin of the settlor, exclusive of Alexander Elmsley; and, secondly, whether, if Alexander Elmsley were not excluded, he was entitled to the whole as nearest of kin, or to a moiety as one of
the next of kin, the representatives of the deceased brother being entitled per stirpes to the other moiety.
· Mr. Bickersteth and Mr. Campbell, for the Plaintiffs.
The limitation to the next of kin is to take effect in the events of the death of Alexander Elmsley without issue, and no appointment by the settlor. These events have happened; and it is plain that Alexander himself could not be intended to take or participate in the gift to the next of kin. Bird v. Wood (a) is a case very similar in its circumstances to the present. There the testatrix bequeathed a fund to her daughter for life, and, after her decease, to such persons as she should appoint, and, in default of appointment, to the testatrix's own next of kin according to the statute of distributions; and, the daughter having died without children, and without having made any appointment, it was held that the testatrix's next of kin, exclusive of the daughter, were entitled to the fund. So in Jones v. Colbeck (ö) the testator's daughter, the tenant for life, was held not to be included in the expression “ nearest relations,” to whom the fund was given in the event of the death of the daughter without children. Briden v. Hewlett (c) is an authority to the same effect. If, however, the Court should be of opinion that Alexander Elmsley is not excluded under this settlement, then, as the words “ next of kin” are used simpliciter without any explanatory context, they must, according to the recent decision in Hinckley v. Maclarens (d), be taken to mean next of kin according to the statute of distributions. The representatives of Alexander Elmsley will, consequently, be entitled to one moiety of the fund, and the
nephew and nieces of the deceased brother to the other moiety.
Mr. Tinney and Mr. Lovat, for the personal representative and residuary legatee of Alexander Elmsley.
The first question raised is, whether Alexander Elmsley, or those who represent him, have, in the events which have happened, any claim at all; the next, whether, supposing him not to be excluded, his interest extends to the whole or only to a moiety of the settled fund. To support the construction contended for on the other side, there must be added to the words “ next of kin,” the words " exclusive of my brother Alexander.” Without this interpolation Alexander Elmsley clearly answers the description of " next of kin," and was entitled either to the whole, as the nearest in blood to the settlor, or to a moiety of the fund as one of the next of kin under the statute of distributions. In general, the tenant for life under a will or deed is not excluded from taking or transmitting to his representatives a larger interest, as answering the description of the person or of one of the persons to whom the fund is given over. Thus, in Holloway v. Holloway (a) the testator's daughter, the tevant for life of the whole fund, was held to be entitled, with her two sisters, to a share of the fund which was given over to the testator's heirs at law. In Doe dem. Garner v. Lawson (6) the testator devised real estate to his nephew for life, and after his decease to such person or persons as should appear and could be proved to be his next of kin, in such proportions as they would, by virtue of the statute of distributions, have been entitled to his personal estate, if he had died intestate. Upon this singular limitation the Court held that the next of kin at the
time (a) 5 Ves. 399
(6) 5 East, 278,
time of the testator's death were entitled, though the nephew, to whom a prior estate for life had been given, was one of them. All the cases in which the tenant for life has been excluded, turn upon special circumstances, which do not apply to the present case. In Jones v. Colbeck (a), Sir William Grant was of opinion that the testator could not have intended to include his only daughter in the term “ relations,” and upon that ground the daughter was held to be excluded. In Bird v. Wood (b) there is a special circumstance, which is not noticed in the report of that case, and which would seem to have been the ground of your Honor's decision.
The bequest over in that case is to the testatrix's own next of kin, according to the statute of distributions, “to be considered as a vested interest from the time of the testatrix's death, except as to any child that might be afterwards born of her daughter." It follows from this direction, that the testatrix intended the grandchildren to take a vested interest in the lifetime of the daughter; and as the grandchildren could only take as next of king properly so called, by representation, the testatrix must have intended next of kin exclusive of the daughter. The daughter must necessarily be excluded before the grandchildren could come in; and this was no doubt the ground of your Honor's decision.
If Alexander Elmsley, then, be not excluded, the next question is, whether he was not entitled to the whole of the fund, as the nearest in blood to the settlor. It is true that in Phillips v. Garth (c) the words “ next of kin," without more, were held to mean next of kin according to the statute of distributions; but the decision in that case has been successively disapproved of
(a) 8 Ves. 38.
(c) 3 Bro. C. C. 64.
by Lord Thurlow, Lord Eldon, and Sir William Grant, and it was expressly over-ruled by Sir Thomas Plumer in Brandon v. Brandon. (a) In Smith v. Campbell (6) Sir William Grant expresses his opinion upon this point in the following language:-“ Even if the words were
next of kin,' yet, if there was nothing to shew that the testator had reference to the statute of distributions, or to a division as in the case of intestacy, the inclination of my opinion would be, that the nearest in kindred only are entitled, and that brothers and sisters would exclude nephews and nieces from participating in such a bequest. I know the contrary was determined by Mr. Justice Buller in Phillips v. Garth, who held, that under the words next of kin,'two surviving brothers were not alone entitled, but nephews and nieces were to come in with them. That case came before Lord Thurlow, but not upon that point, the brothers not appealing from Mr. Justice Buller's decision; but the inclination of Lord Thurlow's opinion was so strong against that of Mr. Justice Buller, that his Lordship directed the cause to stand over, that the brothers might have an opportunity of applying to rehear the cause. It was however compromised, and there was no decision of that point. In the case of Garrick v. Lord Camden (c), Lord Eldon, referring to Lord Thurlow's doubt, states his own also, with regard to that decision of Mr. Justice Buller.”
Mr. Ellison, for the surviving trustee of the settlement.
Mr. Bickersteth, in reply.
(a) 3 Swanst. 312.
(c) 14 Ves. 372. (6) 19 Ves. 400. S. C. Coop. 275.