1. This was a suit filed for the purpose of having certain clauses in the will of Louis Maria De Souza construed, and the shares of the beneficiaries under the will paid to them. The plaint also sought to have the accounts of the executors under the will taken. The plaintiff now on the record, in view of saving expense, does not any longer desire the taking of the accounts; and, with one exception, has abandoned his objection to the items in those accounts of which he complained. The only matters I have, therefore, to deal with, are the construction of the will, and the ascertainment whether a payment of Rs. 2,486-3 to Louis Gabriel, a son of the testator, ought to be made good to the estate by the surviving executor J.F. Vaz in his own person and as the surviving executor of his deceased co-executor M.A. Misquita.
2. The will to be construed is as follows: (His Lordship read the will as above set forth.)
3. The testator died in 1865, leaving him surviving three sons, Louis Gabriel, Peter Francis, and Pascoal, and two daughters, Rosa Miranda and Joana.
4. The defendant, Joao Feleciano Vaz, and Mathias Antonio Misquita (now dead) proved the will on the 19th March, 1866.
5. The executors about this time made payments to Louis Gabriel out of the corpus of the funds in their hands, which aggregated the above mentioned sum of Rs. 2,486-3. Louis Gabriel died on the 27th June, 1876. The defendant Rosa Antonio de Souza is his executrix.
6. Joana married Manuel Francis Zuzuarte. She died about three years after her marriage in 1877 or 1879, leaving a daughter, who died in childhood, and her husband surviving her. The husband has been made a party defendant to the suit.
7. Rosa Miranda married Louis Antonio. She and her husband are alive, and are defendants in this suit.
8. Peter Francis, originally a plaintiff, has become insolvent, and the Official Assignee has been made a party defendant to represent his interest.
9. The plaintiff Pascoal, the youngest son, attained the age of twenty-one years on or about the 8th August 1883.
10. I have first to determine what is the correct grammatical construction of the will, and then, having determined that, to ascertain what are the legal rights of the beneficiaries under it.
11. The will (1) directs the executors to collect the moneys of the testator, and to invest the moneys so collected in the funds. It then (2) provides for the maintenance of the testator's children out of the dividends upon the invested moneys, which are to be applied at the discretion of the executors towards the maintenance and education of the children until each son attains the age of twenty-one years, when his share of the dividends is to be paid to him. It then (3) provides for Rs. 1,000 being given as dowry out of the moneys of the testator to each of his daughters and for their marriage expenses being paid. These may be considered as provisions for intermediate expenditure out of the funds. Then (4) the second clause provides for the ultimate distribution of the residue, the bulk of the collected moneys, by directing that, after the testator's daughters shall be married and after all his sons shall have attained the age of twenty-one years, it shall be distributed between the sons and daughters of the testator that may be surviving at the time. This construction of the first and second clauses of the will, which is that for which counsel for the plaintiff contend, is a fair grammatical construction in which the several provisions as to the testator's moneys follow one another in just and logical order. The only objections to it are esoteric objections, based upon the probable intentions of the testator, which, resting, as they must do, upon speculation, are not a safe guide by which to interpret his language.
12. The alternative construction is to read the dependent sentence in the first clause 'until each of my sons attain the age of twenty-one years, when his or their share shall be paid to him or them,' which follows the provision for the maintenance and education of the children, as applying to the corpus of the fund, as though the words 'of the funds' followed the word' share', and to construe the directions for distribution contained in the second clause as applicable only to the economies out of the dividends, or the accumulations of them, which the executors might be able to effect or make. This construction would exclude the daughters from all share in the bulk of the moneys, and give them a share only in the economies out of, or accumulations of, the dividends. It is not an ungrammatical, but it is a strained or forced construction, and is open to the following objections:
(1) It places the direction for the ultimate disposition of the funds out of its proper place amongst the provisions for the intermediate charges upon it.
(2) It involves the testator's entertaining the idea that, there would be economies out of, or accumulations of, the dividends, which he has not directed, and, judging from the words he has used, does not seem to have contemplated. His direction is that 'the dividends' shall be applied in maintaining and educating the children at the discretion of the executors, and not such portion of the dividends as the executors shall think fit.
(3) It gives a different meaning to the words 'moneys collected' in the second clause to that which they bear in the first clause. To these must be added the consideration that the testator in his will evidently contemplates that his daughters would be sharers in the collected moneys; for, when directing in the fourth clause the proceeds of his Kalyan estate to be added to such moneys for the benefit of his sons and daughters, he adds: 'My daughters shall have no share in my dwelling-house, &c.;,' which forms the subject of a specific devise to the sons; and in the fifth clause he refers to a daughter's share going over to the survivors in case of her death under twenty-one. I accept, for these reasons, the plaintiff's reading of the first and second clauses of the will.
13. The question whether the son and daughter, who died before the period of distribution, having in their lifetime attained the age of twenty-one years are, through their representatives, entitled to share in the distribution; or, in other words, whether the sons and daughters on attaining twenty-one took a vested interest in their shares of the collected moneys, remains to be considered. The case of their having died under twenty-one is governed by the fifth clause, which makes provision for that event. The answer to this question depends upon authority. As the will in question was made before the 1st January, 1866, the Succession Act does not apply to it.
14. Before referring to the authorities I remark that the fifth clause affords a key to the intention of the testator. It provides that, if a son or a daughter should die under the age of twenty-one years, his or her share,-i.e., the share given to him or her by the will,-shall pass to the survivors; plainly thereby implying that such share is not to pass to the survivors if the son or daughter, to whom it is given, should die after attaining the age of twenty-one years. At the date of the will, twenty-one years was the age of majority for natives of the testator's class.
15. The rules of law deducible from the authorities, which have to be considered in connection with this will, appear to be these:
16. 'When there is a clear gift to an individual, an additional direction to pay when the legatee attains a given age, will not postpone the vesting, the gift being considered debitum in presenti, solvendum in futuro'-Theobald on Wills, p. 384, (3rd ed.)
17. The same rule applies where there is gift to a class, and the distribution is postponed for the convenience of the estate or of division till all the members of the class attain a certain age, or till the youngest attains twenty-one-Parker v. Sowerby 1 Dr., p. 488; Chaffers v. Abell 3 Jur., p. 577 cited in Jarman on Wills, Vol. II, p. 837, (4th ed.);. Knox v. Wells 2 H. & M., p. 674. The rule is recognized in Vorley v. Richardson 8 DeG.M. & G., p. 126; and see Re Grove's Trusts 3 G p. 575.
18. If the gift to the individual is, in terms, apparently made contingent upon his attaining majority, or a certain age, the giving of the interest upon the legacy to the legatee in the meantime will have the effect of vesting the gift, or rather of showing that it is the testator's intention that the gift shall vest-Hanson v. Graham 6 Ves., p. 239; In re Hart's Trusts 3 DeG. & J., p. 195; In re Bunn R., 16 Ch. Div., 47. The case of Batsford v. Kebbel l3 Ves., 363 must either be considered as overruled, or as having been decided upon the peculiar terms of the particular will there construed-In re Hart's Trusts 3 DeG. & J., 195.
19. The same rule, however, does not apply where there is a gift of an entire fund payable to a class of persons equally upon their attaining a certain age. There a direction to apply the income of the whole fund, in the meantime, for their maintenance does not create a vested interest in a member of the class who does not attain that age-In re Parker L.R., 16 Ch. Div., 44; Leake v. Robinson 2 Mer., 363; In re Hunter's Trusts 1 Eq., 295; Lloyd v. Lloyd 3 K. & J., 20.
20. Lastly, where the only gift to a class is contained in the direction to distribute, those alone, who answer to the description of the persons amongst whom the distribution is to be made at the time of distribution, are entitled to share-Ford v. Rawlins 1 S. & St., p. 328; Sansbury v. Read 12 Ves., p. 75.
21. These rules of construction must give way, of course, if the testator, by the words he has used, has excluded their application, as was clearly done in In re Hunter's Trusts 1 Eq., p. 295 and as was held to have been done in Vorley v. Richardson 8 DeG.M. & G., 126 cited above.
22. I have reviewed the cases in this way, in order to place in their proper category those that have been cited to me. The general rules are clear enough. The difficulty is in deciding upon their application in particular instances.
23. In the present case there is no direct gift to the testator's children, as a class, contained in the first clause of the will; but there is a direction that the dividends arising from the invested funds shall be applied for their maintenance and education. Then in the second clause there is a direction that, after all the sons shall have attained twenty-one and after the daughters shall be married, the fund shall be distributed in equal parts between the sons and daughters. If the testator had paused there, the rule in Parker v. Sowerby 1 Dr., p. 488 and that class of cases would probably have applied; but he adds the words 'that may be surviving at the time'; thus, as in In re Hunter's Trusts 1 Eq., p. 295 and in Vorley Richardson 8 DeG.M. & G., p. 126 excluding its operation.
24. The testator, however, in the first clause further directs that when each of his sons attains the age of twenty-one years his share shall be paid to him; thus withdrawing him from the general class, and allocating to him a particular interest in the fund. It is true that I have held that, grammatically, the share allocated to him is a share of the dividends, but the allocation or gift to a legatee of the dividends of a fund is a gift to him of the fund itself. This has always been a rule of law. It was referred to by Sir William Grant in Hanson v. Graham 6 Ves., p. 239 in 1801 it is recognized in the Indian Succession Act, Section 159. The direction to the trustees to pay his share of the dividends to each son of the testator as he comes of age is a gift, and a vested gift, of such share to him. If Batsford v. Kebbell 3 Ves., 363 is not overruled, and the particular expressions used in giving the interest are to be considered, the words here used are strong to show the testator's meaning. The testator directs his share of the dividends, not a share or a proportionate part, to be paid to Louis Gabriel when he reaches twenty-one years of age; and when you consider that direction in connection with Clause 5, where it is directed that the share of a son shall pass to the other children if he should die under twenty-one, the intention of the testator is plain to vest each son's share in him when he attains the age of twenty-one. The words 'to be paid' can indeed, if the context requires it, be read as referring to vesting, and not to payment-Martineau. Rogers 8 DeG.M. & G., p. 328.
25. Is, then, the legacy vested in Louis Gabriel taken away by the second clause, which relates to the distribution? Down to that period he and his representatives are plainly entitled to the dividends on his share. No other disposition is made of them. I think the legacy is not so divested. It requires clear words to divest an estate once vested.
26. To prevent that result, the words sons and daughters then surviving might be read as referring to the stirpes, as was done in Cooper v. Macdonald 16 Eq., 258, or rejected in so far they take away vested estates, as was done in In re Duke L.R., 16 Ch. Div., 112; or, without doing violence to the context, might be confined to the daughters, and read as though the sentence ran 'shall be distributed in equal parts between my sons and my then surviving daughters.'
27. This construction makes the whole will harmonious. The first clause treats the daughters in the same way as it treats the minor sons, and does not give them a vested share in the dividend upon their attaining majority. They are similarly treated in the second clause if, when the period of distribution arrives, they shall not be then living. They in that case, like sons dying minors, take no share. This was the result which the parties interested in the estate agreed to in 1883. It is said that agreement is void, as being without consideration; but it was clearly a family arrangement to prevent litigation. Rosa gave up her claim on Louis Gabriel's share, as the plaintiff gave up his. That is sufficient consideration to support the agreement. The plaintiff does not give evidence that he was inops consilii when he assented to it. He had attained his majority three years before the agreement was come to. If the construction of the will had been plain, the plaintiffs alleged abandonment of his legal rights against the executors of his father's estate might have been viewed with distrust; but, seeing that it was so doubtful that an extremely eminent barrister at different times gave diametrically opposite opinions as to its true construction, the plaintiff would seem to have been well advised to give up a doubtful right of little value, which could only be established by a suit at the expense of the estate.
28. The construction of the third clause of the will is free from doubt. It falls within the second rule above referred to. The opposite view was but faintly contended for by Mr. Robertson in his opening address. The Advocate General in his reply practically abandoned it.
29. I find on the issues (His Lordship stated the findings and continued:)
30. Declare that, upon the true construction of the will of Louis Maria De Souza, the legal representative of Louis Gabriel De Souza was entitled to share in the distribution of the testator's moneys, directed in the second clause of his will, equally with the defendants Peter Francis and Rosa Miranda and the plaintiff Pascoal; and was also entitled to share equally with the defendants Peter Francis and the plaintiff Pascoal in the house and articles specifically devised by the third clause of the will; and direct that the defendant Joao Feleciano Vaz do now deal with the estate in accordance with such declaration. Further directions reserved.
31. As to costs. The executor Vaz will of course have his out of the estate taxed as between attorney and client. As the plaintiff does not press the charges against the executor, it is to be regretted that he did not adopt the suggested course of stating a special case, as was done in Vorley v. Richardson 8 DeG.M. & G., p. 126. It would be improper to give him his costs out of the estate relating to those charges which he has not established; but it does not seem to make much practical difference whether he is given his costs out of the estate, or whether he pays them out of his share in it. The same remark applies to the defendant Rosa Antonio. The fairest way to the defendant Rosa Miranda, who has incurred no costs or very little, would be to leave all parties to bear their own out of their own shares; but as, if the plaintiff had stated a special case, I should have given him his costs out of the estate, I consider the proper order now to make is to give him the equivalent of such costs. I shall direct that his costs, taxed as in a short cause, be paid to him out of the estate. All costs not provided for, will be paid by the parties respectively.