1842.-Brown v. Bamford. given in 2 Roper, on Husband and Wife, Jacob's edition, page 402. Mr. Stuart and Mr. Simpson appeared in support of the bill; but the Vice-Chancellor gave judgment without hearing them. *His Honor, after saying that the words on which the [*131] question arose in this case, were the same, in substance, as the words in Barrymore v. Ellis, and that he adhered to his decision in that case, proceeded thus: I admit the common form to be in the terms stated: but it always appeared to me to be defective. When I was in the habit of drawing conveyances, and wished to settle on a lady, property over which she was to have no power of anticipation, I always used to introduce an express proviso that no receipt should be a discharge to the trustees, except a receipt given by the lady for the rents or dividends, (according to the nature of the trust property) then actually become due. The proviso to which I have alluded, declared, as far as my recollection serves me, that the receipts of the lady, under her own hand, to be given from time to time after the rents or dividends should have actually accrued due, should be, and that no other receipts should be sufficient discharges, to the trustess, for the amount of the moneys therein expressed to be received. In this case, however, there are no negative words in the receipt clause; and, therefore, there is nothing to restrict the power, which Mrs. Bamford had, to dispose of, or charge the rents and dividends of the trust property, under the general direction to pay those rents and dividends to her for her separate use; and the consequence is that the demurrer must be overruled. [1] [1] There was an appeal in this case to the Lord Chancellor, and the cause was twice argued before him. On the first argument he expressed an opinion in accordance with the Vice-Chancellor, but upon re-argument, he was induced to change his opinion, and held: "It was obviously the intention of the testator that the income of this property should be kept entire, for the use of the daughter, and that it should not be changed or disposed of, except as the successive payments should become due, that it should not in any way be anticipated." He allowed the appeal and the demurrer. Brown v. Bamford, 1 Phil. R. 621. 1840.-Pruen v. Osborne. [*132] *PRUEN v. OSBORNE.-PRUEN v. WILCOX.--Pruen v. GILBERT. 1840: 25th July. Testator bequeathed his residue to several classes of persons. Some of the parties were members of two of the classes. Held, nevertheless, that they were entitled to only one share, each, of the residue. Testator bequeathed his residue to the children, then living, of T. B. and W. C., and the lawful issue then living of such of their children as were dead, as tenants in common, so nevertheless that such issue should, as amongst themselves, take as tenants in common, and per stirpes, and not per capita; it being his intention that such issue should have only the shares which their respective parents would have been entitled to, if living. Held that the word "issue," must be taken in the restricted sense of "children." JOHN WILCOX OSBORNE, by his will dated the 8th of Decem ber, 1826, disposed of the residue of the moneys to arise from the sale of his real and personal estate, in the following words: "And as to all the rest and residue of the moneys to arise from the sale or sales hereinbefore directed, and all other the before-mentioned moneys, trust moneys, and premises respectively, and all the before-mentioned investments, subject to the trusts aforesaid, I will, declare and direct that they, the said William Ashmead Pruen and Edward Wells Oldaker, or the survivor of them, or the heirs, executors, administrators, or assigns of such survivor, do and shall stand possessed thereof and interested therein, in trust for, and to pay and divide the same respectively, and every part thereof respectively, and I give and bequeath the same unto, between and amongst all and every the children of the brothers and sisters of my uncle, John Wilcox's late father, and all and every the children of the brothers and sisters of the said John Wilcox's late mother, and all and every the children of Thomas Burton, who is mentioned in the will of the said John Wilcox, and all and every the children of William Coles, (who is also mentioned in the said will,) by the [*133] said John Wilcox's late father's sister, and the said John Wilcox's cousins, William Wilcox and Mary Bur 1840.-Pruen v. Osborne. ton, who are both also mentioned in the said will, or such of the said several children and cousins respectively as are now living, and the lawful issue now living of such of them as are dead leaving lawful issue of his, her, or their body or bodies, in equal parts, shares, and proportions as tenants in common; so, nevertheless, that the issue of any such children and cousins respec tively as are dead, shall, as between or amongst themselves, take as tenants in common, and per stirpes and not per capita; it being my intention that such issue respectively shall have only the share or shares to which his, her, or their respective parent or parents would have been entitled to, if living, under or by virtue of this my will." The testator died on the 12th of December, 1826. It appeared, from the report made in pursuance of the decree at the hearing of the cause, that Thomas Burton married a sister of the father of John Wilcox, the testator's uncle, and had issue by her a daughter, Louisa, who was born at the date of the testator's will, and was still living; and that William Coles married another sister of John Wilcox's father, and had issue by her three children, William, Mary, and Hannah; and that they also were born at the date of the will, and were still living; and that William Wilcox, who was named in the will and therein described as a cousin of John Wilcox, was a son of a brother of John Wilcox's father, and was still living.. On the cause coming on to be heard for further directions, one question was, whether Louisa Burton was not entitled to a share of the testator's residuary estate, as *a child [*134] of Thomas Burton, and to another share as a child of a sister of John Wilcox's father. A similar question arose with respect to William, Mary, and Hannah Coles and William Wilcox; the three first of those persons being not only children of William Coles, but also of a sister of John Wilcox's father, and the last being expressly named as a legatee in the will, and being also a child of a brother of John Wilcox's father. It was contended, by Mr. Jacob, Mr. G. Richards, and Mr. Anderson, that the testator's object was to give a double benefit 1840.-Pruen v. Osborne. to such of the parties as were members of two of the classes of legatees mentioned in the will. The Vice-Chancellor, however, held that, although they were twice described in the will, yet they were entitled to only one share, each, of the residuary estate. Another and the principal question was whether the word "issue" was use by the testator in its natural sense, or as desig nating children only. Mr. Girdlestone, Mr. Koe, and Mr. P. White contended that the word "issue" must be taken to mean "children" only, as the testator had used that word in connection with the word "parent;" and that effect could not be given to the direction that the issue should have only the share or shares to which his, her, or their parent or parents would have been entitled to, if living, unless the word "issue" was taken in that restricted sense. Perry.(a) [*135] Sibley v. *Mr. Knight Bruce and Mr. Tennant, for the defendants, W. D. Giles and Mary Giles, who were the great grand-children and only issue living at the date of the will of a sister of John Wilcox's father, said: The case of Sibley v. Perry, when rightly understood, is no authority for construing this will. The word "issue" means, naturally, all descendants; but as it may be held, if the context requires it, to mean children only; so the word "parent," if the context requires it, may be taken to mean any lineal ancestor. The rule of construction cannot be applied to the one word, without admitting it to be equally applicable to the other. In Sibley v. Perry, Lord Eldon says: "Upon all the cases, this word, (issue,) prima facie, will take in descendants beyond immediate issue. But, on the other hand, there is no denying (not applying to the state of the fund or the number of persons) that (a) 7 Ves. 252. 1840.-Pruen v. Osborne. if, upon fair reasoning deduced from the words of the will, all the contents and the design and tenor of it, as manifested by its contents, show it was meant in the more restrained sense, that sense may be given to it. The clauses of this will to which I have referred, show the testator was likely to use the words 'lawful issue' as descriptive of children only; and the question is, whether, upon the whole will taken together, he did not use them in that sense. Cases of this kind, considering the precedent authorities, ought not to pass without observation. This decision is not right, unless upon the construction furnished by the different parts of the will." Then his lordship, at the conclusion of his judgment, says: "I shall express the ground of my opinion in the declaration. Declare that, upon the construction of this will and the whole of it taken together, the testator, by the words 'lawful issue' in these clauses, meant *children; and the distribution shall be accordingly."(a) [*136] If the testator, in the present case, had said, merely: "and the lawful issue now living of such of them as are dead leaving lawful issue of his, her, or their body or bodies, in equal parts, shares, and proportions, as tenants in common;" then this case would have resembled the case of Sibley v. Perry. The testator, however, goes on to say: "So, nevertheless, that the issue of any such children and cousins respectively as are dead, shall, as between and amongst themselves, take as tenants in common, and per stirpes and not per capita." But, in Sibley v. Perry, there were no words denoting any intention to give the property per stirpes. The only resemblance between that case and the present, consists in the word "parent" being found in both. That case has no resemblance to the present; and all that it establishes is, that the word "issue" may be held to mean "children," if the general tenor of the will requires it. There is another very striking reason, in this case, for giving to the word "issue" its natural import. The gift is not to issue, generally, but to the issue now living; the testator, therefore, had particular persons in his view; and the direction that the issue should |