Lees v Massey
| Jurisdiction | England & Wales |
| Judgment Date | 13 March 1861 |
| Date | 13 March 1861 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 821
BEFORE THE LORD CHANCELLOR LORD CAMPBELL AND THE LORD JUSTICE TURNER.
S. C. 4 L. T. 36; 7 Jur. (N. S.), 534; 9 W. R. 425.
[113] lbes v. massey. Before the Lord Chancellor Lord Campbell and the Lord Justice Turner. Feb. 13, 16, March 13, 1861. [S. C. 4 L. T. 36; 7 Jur. (N. S.), 534; 9 W. R. 425.] A testator gave real estate to trustees upon trust to pay a moiety of the rents to his wife for life, and the other moiety for the maintenance of his daughter, and after the wife's death he gave all the estate to his daughter in fee, provided that if the daughter should die without lawful issue, the wife her surviving, then he gave the estate to his wife for life, and after her death " to my relations, share and share alike." He died almost immediately after making his will, and hia daughter was his only child. She died without issue in the lifetime of the wife. Held, that " relations " meant next of kin, and that the period of ascertaining them was not to be postponed till the death of the widow; but whether they were to be ascertained at the death of the testator or of the daughter, qutere. Per the Lord Chancellor, the death of the daughter was the period for ascertaining them. This was an appeal from a decision of the Master of the Eolls, turning upon the construction of the will of Thomas Smith. Thomas Smith, by will dated the 1st of April 1823, devised his real estate upon trust to pay a moiety of the rents to his wife Margaret Smith for her life, and as to the othet moiety, to apply the same towards the maintenance of his daughter Margaret Smith, and after the decease of his wife he gave all his real estates to his daughter Margaret Smith, her heirs and assigns for ever. Then followed a proviso on which the present question arose:- " Provided nevertheless, that in case of the decease of my said daughter Margaret Smith without lawful issue, and my said wife Margaret Smith her surviving, then, and in such case, I bequeath such last-mentioned estates to her my said wife for life, and after her decease to my relations, share and share alike." 822 LEES V, MASSEY 3 DE 0. F. Jc J. 114. The testator died in April 1823. Margaret Smith, the daughter, was at the date of the testator's will, and at his death, his only child, and so at [114] his death his heiress at law and sole next of kin. She afterwards died without issue in 1832, in the lifetime of Margaret Smith the wWow. Margaret Smith the widow died in 1857. The testator had a sister, Ann Lees, who survived him, and also survived his daughter. If the testator had had no child, Ann Lees would have been his heiress at law and sole next of kin at his death. She was, at the death of Margaret the daughter, the sole next of kin of the testator and the heiress at law both of the testatoE and of his daughter Margaret. After the death of the widow, the question arose who were entitled under the gift to the testator's "relations." The Plaintiffs, who derived title under Ann Lees, were entitled, if the period for ascertaining the relations who were to take was the death of the teitator or the death of Margaret Smith the daughter. The Appellants were the persons who answered the description of the testator's next of kin at the death of the widow. The Master of the Rolls made a decree declaring that the word "relations" was equivalent to "next of kin," and that that the class of next of kin was to bo ascertained at the death of the testator. The present appeal was brought from the latter declaration and the directions consequent thereon. Mr. B. Palmer and Mr. Little, for the Appellants. In this case the word used is " relations," and although the Court, ta escape from the indefiniteness of the word, construes it next of kin according to the Statute of Distributions, yet the case stands on a different footing from one in which the Statute of Dis-[115]-tributions is referred to, as it was in Bullock v. Dmunes (25 Beav. 55; 9 H. of L. Gas. 1). A reference to the Statute of Distributions jnimd fade refers us to the death of the testator, arid a stronger context is necessary to alter the period than in a gift containing no $uch reference. The gift here in question is in defeasance of an absolute gift to his ^nly child, and he cannot have intended to substitute for it a gift which would take effect in her favour, which this would, according to the construction put upon the proviso by the Master of the Rolls. [THE lord chancellor. He might have had ofeher children.] The will proceeds on the footing of his having only one child, and! not expecting to have any more. Janes v. Golbeck (8 Yes. 38) is almost identical with the present case, and supports our contention that the death of the widow is the period for ascertaining the class. Its authority is recognized in Say v. Creed (5 Hare...
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