Pride v Fooks
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1858 |
| Date | 25 November 1858 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 1265
BEFORE THE LORDS JUSTICES.
S. C. 4 Jur. (N. S.), 678; 5 Jur. (N. S.), 158; 28 L J. Ch. 81; 7 W. R. 109. See In re Wyndham's Trusts, 1865, L. R. 1 Eq. 293; In re Merceron's Trusts, 1876, 4 Ch. D. 187; In re Kirk, 1885, 52 L. T. 347.
[252] pride v. fooks. Before the Lords Justices. July 17, 23, 24, 26, Nov. 25, 1858. [S. C. 4 Jur. (N. S.), 678 ; 5 Jur. (N. S.), 158 ; 28 L. J. Ch. 81 ; 7 W. R. 109. See In re JFyndham's Trusts, 1865, L. R. 1 Eq. 293; In re, Merceron's Trusts, 1876, 4 Ch. D. 187 ;' In re Kirk, 1885, 52 L. T. 347.] A testator gave his residuary estate to such children as his nephews and niece W., T. and 1). should leave at their respective deceases, one-third to the " child or children " of W. and the two other thirds similarly to the " child or children " of T. and D. respectively, and tlirected that, in case of the death of a nephew or niece without leaving any "children or a child," then that third share should be paid to the " children or child " of the other or others leaving " children or a child ; " but that if W., T. and D. should all die " without leaving any issue lawfully begotten," the whole residue should go to the children of G. W., T. and D. all died, without leaving children, but one of them left grandchildren. Held, that "children " must be construed in its natural sense, and not so as to include grandchildren ; that " issue " was not to be read " such issue," so as to be confined to children ; and that therefore, in the events which had happened, the fund was undisposed of. The report of Gale v. Bennett (Ambl. 681) corrected. This case came before the Court on two appeals from an order of the Master of the Rolls, grounded on a decision, that on the true construction of the will of Thomas Webb, the word "children," in the events which had happened, included grandchildren. The testator, by his will dated the 3d of April 1805, after making divers specific devises and specific and pecuniary bequests and giving certain annuities, devised to his nephew Thomas Pride certain real estate for his life, with a limitation to a trustee during his life, in trust to preserve contingent remainders ; and from and after his decease^ to the use of the first son of the body of the said Thomas Pride lawfully begotten, and the heirs male of the body of such first son lawfully issuing ; and for default of such issue, to the use of the second, third, fourth, fifth and all and [253] every other son and sons of the body of the said Thomas Pride lawfully begotten, and the heirs male of the body and bodies of all and every such son and sons lawfully issuing severally and successively, according to seniority of age and priority of birth ; 12G6 PRIDE V. FOOKS SDEQ.&J.S64 and for default of such issue, to the use of the testator's nephew Walter Pride, with a limitation to a trustee during his life, upon trust to preserve contingent remainders; and from and after his decease, to the use of the first son of the body of the said Walter Pride lawfully begotten, and the heirs male of the body of such first son begotten; and for default of such issue, to the use of the second, third, fourth and fifth and all and every other the son and sons of the body of the said Walter Pride lawfully begotten, and the heirs male of the body and bodies of all and every such son and sons lawfully issuing, severally and successively, according to seniority of age and priority of birth : and for default of such issue, to the use of the testator's niece Dorothy Prisk and her assigns during the term of her natural life, with a limitation to a trustee to preserve contingent remainders ; and from and after her decease, to the use of all and every the child and children of the said Dorothy lawfully begotten, if but one child, then to such only child, his or her heirs and assigns, but if more than one, then to all such children, their heirs and assigns for ever, as tenants ia common and not as joint tenants; and in default of such issue, to the use of the testator's own right heirs. The testator then, by a technically and accurately worded clause, gave his residuary real and personal estate to Thomas Fooks, upon trust to convert it into money, pay the testator's debts, funeral and testamentary expenses, and invest the residue in consols. The testator then gave directions for paying the annuities out of the income of the fund, and accumulating the residue, and he directed that the fund and the accumulations should be held on the fol-[254]-lowing trusts, upon which the questions turned, "in trust for and for the only benefit of such child or children as they my said nephews and niece Walter, Thomas, and Dorothy shall leave at the time of their respective deceases, and to be paid and divided in manner following (that is to say), one-third part thereof to the child or children of the said Walter Pride, if but one child only, then the whole to such only child, but if more than one, then unto all such children in equal proportions, and the two remaining third parts thereof to the child or children of the said Thomas and Dorothy in like manner; and in case either of my said nephews and niece shall happen to die without leaving any children or a child lawfully begotten, then I direct that such third part thereof shall go and be paid to the children or child of the other or others leaving children or a child in equal proportions, if more than one : and in case all of them my said nephews and niece shall happen to die without leaving any issue lawfully begotten, then I direct that the whole of the residue of my said estate shall go and be paid to the three children of Peter Gapper, late of Sherborne aforesaid, brandy merchant, deceased, by Jane his wife the daughter of my now wife, in equal shares and proportions, if all living, or in case of either of them being then dead, to the survivors or survivor of them, and the issue of such as may be dead, such issue taking per stirpes and not per capita ; and I do hereby authorize and empower my said trustee, the said Thomas Fooks, his executors and administrators, from time to time to apply so much and such part of the income of my said estate as in his or their judgment may be sufficient and proper for the education and maintenance of the children of my said nephews and niece during their minority and for their future advancement in life/' The testator made a codicil, not bearing on the present [255J case, and died in 1808, leaving Walter Pride, Thomas Pride and Dorothy Prisk, and the three children of Peter Gapper, him surviving. Thomas Pride died in 1824, without ever having had issue. Walter Pride died in 1854, having had only one child, who died without issue in his lifetime. Dorothy Prisk died in 1858, not leaving any child surviving her, but leaving a number of grandchildren who were parties to the suit, as well as some great grandchildren, who were not parties to the suit. The question now to be determined was, to whom, under these circumstances, the residuary estate belonged. The Master of the Rolls on 24th May 1858 made an order, declaring that according to the true construction of the will, and in the events tbat had; happened, the testator's residuary estate became divisible upon the decease of Dorothy Prisk in equal shares among her eight grandchildren who were living at her death. Two appeals from this order were presented, one by persons claiming under the gift over to the children of Peter Gapper, the other by some of the next of kin. the solicitor-general (Sir H. Cairns), Mr. Selwyn and Mr. Hobhouse for the Appellants representing the children of Peter Gapper. We contend that " issue " in 3DEQ.SJ.JM. PRIDE V. FOOKS 1267 the gift over means the particular class of issue before mentioned-that " child or children " in the prior gift is to be taken in its natural sense-and that therefore as there was no child of the nephews or nieces living, the gift over has taken effect. The Master of the Eolls held that "children " was to be read "issue," but this we submit is erroneous. The rule is settled, that " child" is to be construed in its natural sense, unless the context renders it impossible. Here the context does not support the extended meaning, " child " [256] is throughout used in the proper sense. If "child" be read "issue" here, a child of Walter living at his death, and the grandchildren of deceased children of Walter, would have taken per capita; and, moreover, a grandchild of a deceased nephew or niece would defeat a child of one subsequently dying, whioh would be contrary to the express words. The Master of the Rolls relied on the word "issue," and extended the meaning of "children" by reference to it; but " issue " is a proper description of children, though the expressions " children " and " issue" are not necessarily synonymous. The expressions in the gift to the Gappers shew, that when the testator intended to give to issue, in the extended sense of the word, he knew quite well how to express himself. There is nothing in this will that can be relied on as extending the meaning of the word "child" except the gift over. The cases do not authorize the extending it on that ground only ; Reeves v. Brymer (4 Ves. 692), Eoyle v. Hamilton (HM. 437), Baddiffe v. BuMey (10 Ves. 198), Gale v. Bennett (Ambl. 681), Wythe v. Thurlston (Ambl. 555; 1 Ves. sen. 196). "Issue" must be construed as an inaccurate description of the objects before mentioned ; Salkeld v. Vmim (1 Ed. 6),Makolm v. Taylor (2 R. & M. 416), Ellicmnlie v. Gompertz (3 M. & C. 151), Robinson v. Hunt (4 Beav. 450), Bryan v. Mansion, (5 Do G. & Sm. 737), Hillersdon v. Lowe (2 Hare, 355, 372). The Master of the Rolls, on this part of the case, relied on Westwood v. Southey (2 Sim. N. S. 202); but that case was compromised on appeal, and the principle which is there laid down is, we submit, unsound, and, even if sound, it would not apply here, where the gift is to children to...
To continue reading
Request your trial
- Knight v Knight
-
Boulton v Pilcher
...(20 Beav. 205); Cambridge v. Rons (25 Beav. 409); Crazier v. Fisher (4 Russ. 398); Edwards v. Edwards (15 Beav. 357); Pride v. Fooks (3 De Gex & Jones, 252); Leslie v. The Duke of Devonshire (2 Bro. C. C. 189), were cited. the master of the rolls [Sir John Romilly]. I am of opinion that all......
-
Atkinson v Barton
...Livesey v. Harding (1 Russ. & Myl. 636). The case is not one in which the referential construction can be adopted; Pride v. Foolcs (3 De G. & J. 252, 280). Mr. Hobhouse, in reply. Judgment reserved. Dec. 13. the lord justice knight bruce. In the events which have happened, namely, that Eliz......
- Fenton v Perpetual Trustee Company (Ltd)