during their minority." Upon this part of the will the question which arises is as to the interest of Mrs. Matthews herself; and we are of opinion that she is entitled to receive for her life rupees 15 a month, and that the testator's estate is charged with the payment of that sum. The general rules as to the construction of bequests of this kind are pretty well settled. Where there is in terms a gift of the interest or dividends or produce of the estate, and that gift is indefinite in point of time, such a bequest will generally carry the corpus absolutely; but when, on the other hand, the gift is in its terms simply a gift of so much a year, its effect is to give an annuity for life only. The recent case of Hill v. Potts (a), which was referred to during the argument, turned upon the effect of the peculiar words there used, viz. "I give to A all my property, except 500l. a year which I give to B." But the ViceChancellor Wood (though considering the effect of the exception from A's gift to be that the 500l. a year meant so much of the estate as would produce 500l. a year), yet expressly says that it must be taken now upon the authorities that when you find nothing beyond the simple gift of so much a year to A, A takes it only for life; and similar language fell from Lord St. Leonards in the case of Kerr v. The Middlesex Hospital(b), where a direction to apply the produce of a testator's real estate in the purchase of annuities was held (Lord Cranworth dissenting) to give them in perpetuity. Where, as in Stokes v. Cheek(c), the direction is to buy a Government annuity, the intention of the testator that so much of the corpus of his estate as may be necessary for that purpose should be appropriated absolutely for the benefit of the legatee, is manifest; and that intention being clear the Court have felt at liberty to allow the annuitant to receive the money-value of the annuity, although the testator may have expressly forbidden it. But the language of the will which we have to construe directs simply the payment of a monthly stipend of fifteen rupees spoken of as a provision for the testator's daughter, and In Re Graves' Trust(d) may be referred to as one of many cases supporting our construction. 1862. Sept. 18, Oct. 1. 1882.. Sept. 18, Oct. 1. The same observations apply to the bequest of Mrs. D'Monte; and we entertain no doubt that under the will the testator's daughters are entitled only for their lives to receive respectively the monthly stipends of fifteen and twenty rupees. They are also clearly further entitled to receive during the lifetime and minority of their children the sum of ten rupees for each child; but on the death of each child, or upon its attaining majority, the payment in respect of such child is to cease. These payments may not, and we suppose probably would not, exhaust the testator's estate; and it was suggested that there being no residuary clause in the will, there was an intestacy as to the residue after deducting the 105 rupees directed to be paid to the testator's daughters during the minority of their children. But we think that the subsequent bequest to the children removes this difficulty, and that there could be no intestacy except in the event of all the children dying under twenty-one; and we proceed to consider what interest the children of the testator's two daughters take under this will. First, we think that the interest of each child vests only on that child's attaining the age of twenty-one years, and not before. There is no prior gift, but the only words are "on each child attaining that age, I request my executors to pay." The time is annexed to the legacy itself and not to the mere payment. Then what is given? The proportionate share of that child in the full amount of interest accruing from the testator's estate. This provision therefore for the first time brings into distribution the whole of the testator's estate, but it clearly does bring it into distribution and gets rid, as we conceive, of any question of intestacy as to any part of the estate. It is as though the testator had said in so many words-whatever surplus of my estate may remain after payment of 105 rupees, is to be kept by my executors at interest until the eldest child attains majority, and then his share of the whole estate shall be paid. The amount of the share which will vest in each child at twenty-one must depend upon the number of children then living. To take the simplest case-if, on the eldest attaining twenty-one, all the children are alive, his share would be one-seventh, and it would of course be proportion ately greater according to the number of children who had at that time died under age. But he would also, we think, further take a contingent proportionate interest in the shares of each of the other children, which would become vested on the death of each one dying under twenty-one. In no other way can effect be given to the intention of the testator, as we gather it from the words used in the 6th paragraph of the will. But this leaves untouched the question upon which the argument before us principally turned, whether the estate given to each child in his share, was an estate for life only, with remainder over to his heir or heirs, or an absolute interest in the corpus ? Upon this part of the case, it was mentioned that the rule in Wild's Case(a) had been held not applicable to personalty; and it does appear that, though after great discussion that question was left unsettled in Stokes v. Heron(b), Lord Campbell, did, in the recent case of Audsley v. Horn(c), declare himself prepared to say deliberately that the rule in Wild's Case is not applicable to personalty. But independently of that expression of Lord Campbell's opinion, we think on other grounds that the rule in Wild's Case has no bearing upon the question which we have to consider. The rule in Wild's Case applies to the construction of the words children or issue in a devise to one and his children or issue, when he has no children or issue at the time of the devise; and for the purpose of endeavouring as far as possible to effectuate the testator's intention, the rule was laid down that those words should be taken as words of limitation and not of purchase. The words, however, which we have to construe are very different. The gift to the children is "during their natural life, and after their demise the said interest in like manner to revert to their heir or heirs in succession." Looking at these words, it seems probable that the testator intended that the corpus of his estate should remain for ever in the hands of his executors or their representatives, and that the descendants of his daughters' children should (a) 6 Rep. 17. (b) 12 Cl. & Fin. 180. (c) 6 Jur. N. S. 205; 29 L. J. 1862. Sept. 18, Oct.1. 1862. Sept. 18, Oct. 1. in perpetual succession enjoy only the interest arising therefrom. But if such was his intention, that intention certainly cannot be carried into effect; and we see no ground for saying that more effect will be given to the testator's intention by holding that the children take for life with remainder over to the persons designated by the words "heir or heirs"-whether they should be construed to mean the heirs at law, according to Re Rootes(a), or next of kin, according to Evans v. Salt(b),-than by holding that the children take absolutely. This latter upon the authorities, we consider to be the proper construction. In Britton v. Twining(c) the words were that £20,000 in the 3 per cent. stock should be after the death of the testator's wife "firmly fixed upon the now infant boy William Cobb," and to be "so secured that he may only receive the interest of the same during his life, and after his decease to heir male of his body and so on in succession to the heir at law male or female," and Sir William Grant held that, though there was an express restriction for life, William Cobb took the £20,000 not for life only but absolutely. This case seems to us very closely in point; and it has not been shaken by any subsequent decision. On the contrary, it is expressly recognized in the case of Ex parte Wynch(d), both by Lord Chancellor Cranworth and Lord Justice Turner; the former of whom, explaining the ratio decidendi in that and some other cases, says(e)" In these cases the principle on which the Court went was this: that technical words were used, which in the opinion of the Court indicated the clear meaning on the part of the testator that the property should go in a course of devolution till there was an exhaustion of the heirs of the body [or as Lord Justice Turner puts it, "the technical words 'heir male' and 'heirs of the body,' importing inheritance from the ancestor" (f)], and as that of course could not be carried into effect, they gave an absolute interest." 29 L. J. Ch. 863. (b) 6 Beav. 266. (c) 3 Mer. 176. (d) 5 D. M. & G. 206-7. Here in like manner, technical words importing inheritance from the ancestor, and indicating very clearly to us the testator's intention that the property should go in a course of devolution to the heirs of the children ad infinitum, are used by him, and in our judgment the result must be the same. 1862. Sept. 18, Oct. 1. NOTE. The rule in Wild's Case, it is said, does not apply to bequests of personalty; Buffar v. Bradford 2 Atk. 220: Stone v. Maule 2 Sim. 490; Heron v. Stokes, 2 Dr. & War. 89; 12 Cl. & Fin. 161; Audsley v. Horn 26 Beav. 195 and on appeal 6 Jur. N. S. 205, 29 L. J. Ch. 201. In most cases, however, it matters little whether it does or not; for the parent would be solely entitled; he being the only existing object at the time of distribution, and the absolute interest in personalty passing without words of limitation; Cape v. Cape 2 Y. & C. 543. But where an annuity is given without words of limitation, the annuitant takes only for life: Savery v. Dyer Amb. 139; Yates v. Maddan 3 Mac. & G. 532 (this rule is not altered by the Wills Act, 1 Vict. c. 26 Indian Act XXV of 1838, Nichols v. Hawkes 10 Hare 342), and if the rule in Wild's Case applied, the limitation to children would create a conditional fee: Stafford v. Buckley 2 Ves. 170,-a personal annuity not being entailable. 2 Jarm. Wills, 3d ed. 373. That the word 'heirs' in par. 6 of the will meant heirs at law' and not next of kin,' see De Beauvoir v. De Beauvoir 3 H. L. Ca. 524, 527 per Lord St. Leonards, and Re Rootes cited supra. Evans v. Salt, contra, was disapproved of by Lord St. Leonards, 3 H. L. Ca. 556. But see Low v. Smith 2 Jur. N. S. 344. |