Will-Construction-Precatory Trust. Personal property was bequeathed to a married woman for her own proper use and benefit for ever for her separate use, and the proceeds to be applied in the bringing up and maintenance of her children :Held, that there was no trust. By his will, dated September, 1861, John Brough gave the residue of his real and personal estate to "Sarah Mackett, the wife of George Smith Mackett, and to her heirs and assigns for ever, but upon trust as to all the freeholds for the sole and separate use, and for the bringing up and maintenance of her son, John Mackett, till he attains the age of twenty-one years, then to assign and make over the same to him for his own use and benefit for ever." And as to the personal property " to and for her own proper use and benefit for ever, but not to be subject or liable to the debts, control or engagements of her present or any future husband, and her receipt alone to be a good and sufficient discharge for the same, and the proceeds to be applied by her in the bringing up and maintenance of the said John Mackett, and all other children of the said Sarah Mackett." At the testator's death Sarah Mackett had five children. This suit was instituted by four of the children, including John, who were then all minors, for administration of the estate of John Brough. After the institution of the suit Sarah Mackett died, having by her will disposed of all her property (after pay ment of debts and a legacy of 501.) including what she might be entitled to under the will of John Brough, partly for the benefit of her children other than John. The question whether Mrs. Mackett was entitled to the personal estate absolutely now came on to be argued, on further consideration. Mr. E. K. Karslake and Mr. Everitt, for two of the children, contended that Mrs. Mackett took, subject to a trust, in favour of all the children, distinguishing Lambe v. Eames, 40 Law J. Rep. (N.S.) Chanc. 15, 447; s. c. Law Rep. 6 Chanc. 597; They cited Carr v. Living, 28 Beav. 644; 8. c. 17 Law J. Rep. (N.s.) Chanc. Mr. Bristowe, Mr. Kay, Mr. Herbert Smith, Mr. J. Hinde Palmer, Mr. C. J. Hill, Mr. Amphlett and Mr. Freeman, for other parties interested, contended that there was merely a precatory trust, that to say, the testator had merely pointed out the object of his making the gift. They cited, in addition to the above authorities— was Thorpe v. Owen, 2 Hare 607; Newman v. Whitbread, 17 Beav. 299; Wood v. Cox, 2 Myl. & Cr. 684; 27 Law J. Rep. (N.S.) Chanc. 788; Fox v. Fox, 27 Beav. 301; Howarth v. Dewell, 29 Beav. 18; Wilson v. Bell, Law Rep. 4 Chanc. 581. Mr. Karslake replied. BACON, V.C., said-The question in the first place is one of construction, and upon that I feel no doubt whatever. The testator begins with an absolute gift of the residue of his real and personal estate to Mrs. Mackett. He then declares trusts of his real estate, but as to his personal estate, he gives it absolutely and without qualification to Mrs. Mackett, for her sole and separate use. He then adds these words" And the If proceeds to be applied by her in the bringing up and maintenance of her children. No doubt by these words he expresses the motive of his gift. But he lays no restriction upon the legatee. In truth the case resembles Lambe v. Eames (ubi supra) in every respect, and the result becomes more clear when one comes to put these words into active operation. she is not to take the whole absolutely and without qualification, then how much is she to take ? If the property is not to be disposed of as she in her unfettered discretion shall think fit, if the proportions in which it is to be distributed are not to be regulated by her sole will and discretion, there is no meaning in words. As I read, then, they mean only this-" In order to enable her to provide for her children, I give her this property for her absolute and unfettered use.' The same difficulty occurs here as was suggested in Lambe v. Eames (ubi supra), where Lord Justice James observes upon the uncertainty and impossibility of deciding how much was intended to be spent upon the mother's private purposes, and how much upon the children. Another remark that was made in that case also applies here. "If there be any such obligation, I think it has been fairly discharged by the way in which she has made her will." Here I find that the legatee has in the most express manner carried what may be supposed to have been the intention of the testator into full operation. The gift being to her absolutely and without condition, she has made a will consistently with that intention by providing in a particular way for the children. Under these circumstances, I think it unnecessary to declare that the annuities are confined to the minorities of the infant children or are payable for any particular period, nor do I think any inqury necessary as to what is required for the children's maintenance. The only declaration will be that Mrs. Mackett was absolutely entitled under the will of the testator to his personal estate. Solicitors-Messrs. Fielder & Sumner, for plaintiff; Mr. C. Baylis, for defendants. NEW SERIES, 41.-CHANC. Will-Remoteness-Limitations in Trust after Estate Tail-Class - Issue-Joint Tenancy or Tenancy in Common. Where property is limited, in remainder after an estate tail, to trustees upon trust to sell and distribute the proceeds amongst a class to be ascertained at the determination of the estate tail, the gift of the proceeds will not be void for remoteness, even though the class may comprise individuals beyond the limits of the rule against perpetuities. A testator gave property to the children of A. living at a prescribed period, and the issue of deceased children, so as such issue should have no greater share than their parents would have taken if living, and he afterwards provided that if any one or more of such issue should be then dead, having left lawful issue, then the issue of such issue as should be so dead should receive the share which their, his or her parent would have taken if living:-Held, that the effect was to create a joint tenancy amongst the members of the various families, subject to this, that if anyone died leaving issue it must be considered for the purpose of determining the share which such issue were to take, as if he had survived the period of distribution, but had severed the joint tenancy at the date of his death. Held, also, that the issue of grandchildren of A. must be confined to children, and that the issue of a grandchild who was dead at the date of the will took. The words "then living," though in one clause of a will they were held by virtue of the above-mentioned proviso to refer to the period of distribution, were in another clause to which the proviso was held inapplicable, considered to refer to the death of a tenant for life. These were appeals from the decision of Malins, V.C., reported 40 Law J. Rep. (N.S.) Chanc. 258. The facts and material portions of the will on which the question arose are fully stated in the former report. The questions argued upon the appeal were as to the 4 X effect of the rule against perpetuities and whether or not the word "issue" was to be extended beyond children, or, as his Honour held, confined to children; and also, whether there was a joint tenancy or tenancy in common amongst the issue. Mr. Cole and Mr. Miller, for the appellants.-The Vice-Chancellor was wrong in excluding the proviso at the end of the will, which proviso must regulate the construction of the will. It is perfectly valid, being a limitation made to depend upon the determination of an estate tail Lewis on Perpetuities, 154, 664; Fearne, Contingent Remainders, 522, Cole v. Sewell, 2 H.L. Cas. 186. The effect of the proviso is to make the children of Mrs. Newland tenants in common Hodges v. Grant, Law Rep. 4 Eq. 140; 15 Law J. Rep. (N.S.) Chanc. 460, and to extend the gift to grandchildren of Mrs. Newland, whose parents died at any time previously to the period of distribution, whether the deaths happened in the testator's lifetime or afterwards King v. Cleaveland, 4 De Gex & J. 477; s. c. 28 Law J. Rep. (N.S.) Chanc. 835. Mr. Shapter and Mr. Stallard, for the plaintiff, upon the question whether the children of Amy Newland took as joint tenants or tenants in common, contended that there was not sufficient to exclude the rule which makes a gift to a class a gift to the members of the class as joint tenants. Mr. Kay and Mr. Shebbeare, for the representative of the last surviving child of Mrs. Newland, contended that the gift was to the children of Amy Heasman and the grandchildren, issue of deceased children, and the issue of J. Gratwicke Heasman, and further that the issue of deceased children of Amy Heasman must be confined to children, and they took as joint tenants. The children of Amy Newland therefore were joint tenants, and the survivor was alone entitled. On the first point they cited— Re Orton's Trust, 36 Law J. Rep. Upon the second point Penny v. Clarke, 1 De Gex, F. & J. 425; s. c. 29 Law J. Rep. (N.S.) Chanc. 370; Bridge v. Yates, 12 Sim. 645; s. c. 14 Law J. Rep. (N.S.) Chanc. 425; Macgregor v. Macgregor, 2 Coll. C.C. 192; Coe v. Bigg, 1 N.R. 536; Pell's Trust, 3 De Gex, F. & J. 291; s. c. 34 Law J. Rep. (N.s.) Chanc. At all events the gift could not extend to children of any of Amy Newland's children who died before the date of the testator's will or even afterwards in his lifetime. Mr. Miller, in reply, cited upon the last point raised Hotchkiss's Trusts, 38 Law J. Rep. 6 Law J. Rep. (N.S.) Chanc. 176. Their Lordships intimated their acquiescence upon this point, but reserved judgment upon the whole case. LORD JUSTICE JAMES.-This is an appeal from part of the decree pronounced by Vice-Chancellor Malins, from that part of the decree which affected the interests of what may be briefly called the Heasman branch of the family of the testator. The scheme of the will was to provide a series of limitations of the real estate for life, with remainder in tail, with an ultimate remainder to trustees for sale, and a gift of the produce of sale, which ultimate remainder and gift are what the Court has to deal with. The testator also gave his residuary personal estate to his grandson, William Gratwicke Kinleside, for life, with remainder to his children or other issue living at his death, and if he should die without child or issue living at his death, then to his granddaughter, Jemima Elizabeth Kinleside, for life, with a like remainder, and in case of her dying without child or issue then living, the personal estate was to go in the same manner as the produce of the real estate. The general scheme of these ultimate gifts was this: The testator had had three sisters, and he divided his property into thirds-one third he gave to the family of his deceased sister, Mrs. Heasman; one third he gave to his living sister, Mrs. Jupp, and her family; and as to another third he gave an estate for life only to another sister, Mrs. Croker, and she being an aged, childless woman, he directed that third to go in moieties between the Heasmans and the Jupps, using exactly the same words of gift as those in which their own original thirds were given to them. The words of gift to the Heasmans, the gift now before us, are as follows: "And as to one-third part or share thereof, upon trust that they transfer or pay and divide the same unto and amongst all and every the children of my said sister, Amy Heasman, deceased, except my nephew, John Gratwicke Heasman, who shall be then living, and the issue of such of them as shall be then dead leaving issue, and the issue of my said nephew, John Gratwicke Heasman, except his son, John West Heasman, share and share alike, but so as the issue of such of the children of my said sister, Amy Heasman, as shall be then dead, shall have no greater share than their, his or her deceased parents would have had if living, and so as the said issue of my said nephew, John Gratwick Heasman, shall have no greater share than the issue of any other of the children of my said sister, Amy Heasman, deceased, is directed to have in case of the decease of his, her or their parents." At the time the testator made his will Amy Heasman had in fact only two children; the John Gratwicke who is mentioned and excluded, and Mrs. Newland; and all her other children had then died without having been married, so that in fact the gift was to Mrs. Newland and her issue, and to the issue of John Gratwicke other than his eldest son, who was excluded. The gift therefore was a gift to Mrs. Newland or to her issue if she should be then dead leaving issue, and to the issue of J. G. Heasman, other than his son, J. West Heasman, as tenants in common, with a direction that the issue of Mrs. Newland should take no greater share than the parent would have done, and that the issue of J. G. Heasman should take no more than the issue of Mrs. Newland. According to the rule in Sibley v. Perry (1) the word "issue" would have to be read "children" in the gift to Mrs. Newland's family, and assuming that the same meaning would be given to the word issue in the gift to John G. Heasman's issue, then the gift would read thus: To Mrs. Newland, if she should be then living, or her children, if she should be then dead, leaving children, and the children of my nephew, J. Gratwicke Heasman, other than J. West Heasman. The words create a tenancy in common between the two families; but according to the ordinary rule of construction each set of children would take as joint tenants. So also according to the ordinary rule of construction, no children of Mrs. Newland would have taken, unless they had survived her, and if all her children had died in her lifetime leaving numerous issue they would have taken nothing and there would have been an intestacy as to that share. It is to be noted, moreover, that there is no such condition affixed to the gift to J. Gratwicke Heasman's children. Beyond all question, all his children who were in existence at the date of the testator's will and afterwards came into existence, would have taken vested interests, and having regard to the whole scope of the bequest which was to put the descendant families of Amy Heasman on an equality, the motive of the gift being that they were such descendants, it would be very singular that the children of Mrs. Newland should take only contingent interests, and the children of John Gratwicke should take vested interests. (1) 7 Ves. 522. But the testator himself at the end of his will has added a clause expressly "to prevent all doubts." The Vice-Chancellor came to the conclusion that that ultimate clause offended against the rule as to perpetuities, and was therefore to be struck out. We are unable to concur in what the Vice-Chancellor is reported to have said as to the rule against perpetuities, or as to striking out the clause if it did offend against such rule. No limitations after estates tail, as the Vice-Chancellor himself points out, are too remote, and it appears to us clear, that whether the limitation be directly to a class of issue to be ascertained at the determination of the estate tail, or a gift to trustees for such class, or upon trust to convey to such class, or to sell and divide the produce amongst such class, is wholly immaterial if the legal and beneficial interests should be ascertained at the moment of the determination of the estate tail. Moreover, it is against the settled rules of construction to strike out any words from a will because they offend against the perpetuity rule. For all purposes of construction the will must be read as if no such rule existed. Any dispositions. which so reading and construing it are found to be the testator's wishes, must be taken to be his wishes; and if those wishes offend against the rule, the gifts would fail, and must fail accordingly; but they are not the less part of his will, and to be resorted to as part of the context for all purposes of construction, as if no such rule had ever been established. Then what is the light thrown upon the bequest in question by the ultimate proviso? There is here a clear indication of the testator's intention that the death of a legatee dying before the period of division, if there should be any issue then surviving, should not deprive that legatee's issue of their share of the family provision. The gifts to the issue of Mrs. Newland, to the issue of Mrs. Jupp, to the issue of J. Gratwicke Heasman, are all put together, and evidently referred to as gifts of the same character; and it is quite clear that he did not intend that if any one of a class died leaving issue, his share should go over to the others of that class. It was contended that in order to give effect to this explanatory proviso, we should treat the gifts to the issue, not as gifts in joint-tenancy, but as gifts to them as tenants in common. We are unable to accede to that view. It would be the more natural view of the proviso to consider that it proceeds on the assumption that there is originally a joint-tenancy, and proceeds to prevent the mischief which would arise where one of the jointtenants lives to have and leave issue, and then dies, by severing the joint-tenancy as to that share. We are of opinion that such is the effect of the proviso; and that where any of Mrs. Newland's children, who would have taken if they had survived, have died leaving issue, the children take the place of the parents; and in all respects the property is to be divided as if the parent had survived-but as if he had survived, having severed the joint-tenancy as to his share. We add this qualification because equality and mutuality are of the very essence of joint-tenancy, and when a share is by any act or upon any contingency exempted from surviving, it follows or is to be implied that it is not to take any accruers from any other share. We are therefore compelled to differ from the Vice-Chancellor, such difference being in fact the necessary result of his excluding the explanatory proviso, which we have admitted in ascertaining the true con struction. The children of Frances Rudwicke who died leaving children, and the children of Thomas, who also died leaving children themselves, having survived Mrs. Newland, are, according to our construction, clearly entitled to share. But we have to consider whether the children of two other children who died in the testator's lifetime, and consequently before their mother leaving children, are or are not to be included. Now in considering this, it is not unimportant to observe how the gifts to Mrs. Newland's family, and to her brother's family, affect each other. If the gift to John Gratwicke Heasman's issue had stood unaffected by the context as to Mrs. Newland's issue and unaffected by the proviso, it would have been a gift to all the issue, however remote, who |