Bird v Luckie
| Jurisdiction | England & Wales |
| Judgment Date | 27 June 1850 |
| Date | 27 June 1850 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 375
HIGH COURT OF CHANCERY
S. C. 14 Jur. 1015. See Harris v. Newton, 1876-77, 46 L. J. Ch. 271.
[301] bird v. luckie. June 14, 15, 27, 1850. [S. C. 14 Jur. 1015. See Harris v. Newton, 1876-77, 46 L. J. Ch. 271.] A testator, after bequeathing his residuary estate to trustees, upon trust for his grandson, the child of his deceased daughter, for his life, directed them, in case his grandson should die under twenty-one without issue, then to pay the rents and profits unto and amongst his (the testator's) " next of kin, in such proportions and manner as is provided by the Statute of Distributions," and in case the grandson should die after attaining twenty-one without leaving issue, or such issue should die under twenty-one, or unmarried, or without issue, then to distribute the whole of the residue amongst such next of kin in the same proportions and manner. Held, that the gift was to the next of kin of the testator at his death; and this, notwithstanding his sole next of kin at the time of making the will and at the time of his death was the grandson of the testator, to whom the life-estate was given, and the sole next of kin of the grandson at the same times was the father of the grandson, the husband of the deceased daughter of the testator. The mere circumstance that a gift to the next of kin of a testator is not immediate, but is contingent upon a future event which might or might not happen, is insufficient to render the description applicable only to such person or persons as should form the class at the time of the occurrence of the event. 376 BIRD V. .LUOKIE 8 HAKE, 302. T. Eawlins, by his will, dated the 25th of October 1839, devised and bequeathed his estate and effects to Charles Freeth, upon trust, after payment of his debts and certain legacies and annuities (which annuities he charged upon specific portions of his leasehold estates), to invest the surplus monies arising from the rents and profits, or otherwise from his estate and effects, as the same should reach a sufficient amount; and when and so soon as his grandson, Edwin Eawlins Withers, then a minor, should attain twenty-one, to assign the lease of the house in which the testator's business was carried on, and give up the business, furniture and effects, and pay and transfer such monies, investments and securities to and for the absolute use and benefit of the said Edward Eawlins Withers, his executors, administrators and assigns, and thence-forwards to receive the rents and profits of the said residuary estate, and pay the surplus thereof, after satisfaction of the annuities, to Edwin Eawlins Withers, until none of the annuitants should be left surviving; and then to pay the whole of the net rents and profits to Edwin Eawlins Withers during his life. And the testator declared that, in case Edwin Eawlins Withers should have issue, then, but not otherwise, he (Edwin Eawlins Withers) should have full power to appoint, give or bequeath the said residuary estate unto and among such issue as he should direct; and that the said trustee should, upon the death of Edwin Eawlins Withers, and of the last surviving annuitant, transfer all such residue to such issue upon [302] him, her or them attaining twenty-one or marrying, but not before; and, in case Edwin Eawlins Withers should die without having made any such appointment or disposition, leaving such lawful issue, the testator directed that his trustee should assign the whole of the said residue unto and among such issue of Edwin Eawlins Withers in equal proportions. And the will proceeded, " And in case the said Edwin Eawlins Withers shall die under the age of twenty-one years without lawful issue, then upon trust, that he, the said Charles Freeth, his executors, administrators or 'assigns, do and shall pay and apply the surplus net rents and profits of all my trust...
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