1. The decision in this appeal tarns entirely upon the view which we take of the proper construction of the Will of a Mrs. Margaret Jane Marten.
2. The following table will make clear the relationship of the Marten family.
3. The testatrix and her husband had been separated for many years. The Will was executed op November 2, 1901. It at first purports to give to her two sons, Harry Kenneth and Frederick William, all her estates and effects in equal shares for their own use and benefit absolutely and for ever. Certain immoveable property is then more specifically set out. Then the Will proceeds.
I further direct that on the death of either of my sons above named his share of the property herein bequeathed shall go in the first instance to his children and grandchildren, etc. in the direct line, if there be any, at the time but not to the widow or any other person, but failing his children and grandchildren as aforesaid, the property herein bequeathed shall revert immediately to the children and grandchildren, etc., in the direct line of the surviving son, and failing the children and grand-children, etc. of the surviving son to the surviving son himself, and then ultimately failing him, it shall revert to the widow or widows of both of the deceased sons.
I further direct that if the said Harry Kenneth Marten and Frederick William Marten cannot live jointly and enjoy the estates herein bequeathed to them jointly, they will divide the property bequeathed into two equal shares and will enjoy their respective shares absolutely and as full owners for their lives and after that the property shall revert to their heirs in the manner and order indicated hereinbefore.
4. Whatever interest the deceased may have thought she was conferring in the earlier part of the Will, there can be no doubt that this latter clause is the governing one and, therefore, cut down and defined the interest of her two sons as a life-interest only. Neither Harry Kenneth nor Frederick William had children or grandchildren, and on the death of Harry Kenneth on December 23rd 1915, the property bequeathed to him passed to his brother, Frederick William.
5. That latter gentleman had in his lifetime, namely, on July 8, 1916 and June 23 1917, mortgaged part of the property which came to him under the Will. After his death the plaintiffs sued defendant No. 1 as administratrix and as being in possession of the property and defendant No. 2 as his heir.
6. If Frederick William obtained on hid brother's death an absolute right to his brother's one-half share, then the plaintiffs would succeed in the action. If he got a life-interest only, then the property would be freed from the mortgage on the determination of any life estate. The learned Subordinate Judge decided that the interest acquired was an absolute one. The appellants have laid emphasis on the fast that the husband and wife were not on good terms and that the whole structure of the Will shows that it was the intention of the testatrix to carve out a series of life-estates so that under no assumable possibility could her husband some into any share of her property. On the other hand, Mr. Sital Prasad Ghose contended that the death of Harry Kenneth brought about a complete determination of any life estate and that the next donee took absolutely. For this proposition he relied upon the use of the word 'failing' and that passage in the Will which says that 'the property herein bequeathed' shall revert, etc. and the case of Byng v Lord Strafford (1843) 5 Beav. 558 : 12 L. J. Ch. 169 : 49 E. R. 69 : 59 R. R. 568. He argued that 'failing' meant a skipping over of several successive classes, if in pursuing the order of succession ordained by the Will any should be found not to be in existence or to have teased to exist. Thus in the actual circumstances the children and grandchildren of both Harry Kenneth and Frederick William were necessarily passed over as non-existent, the 'property bequeathed' i. e., the absolute interest in the one half share same to Frederick William and that the widow of Harry Kenneth only, came in, if there had been at the death of Harry Kenneth no one of the persons in existence who by the terms of the Will took precedence of her.
7. Whilst we are aware that the construction of any particular document is rarely aided by referring to a judicial construction of another document, we are impressed by the case of Byng v. Lord Strafford (1843) 5 Beav. 558 : 12 L. J. Ch. 169 : 49 E. R. 69 : 59 R. R. 568.
8. In general outline it bears a striking similarity to the case under discussion and the same question, as to whether an absolute, estate or a life interest was taken after the determination, in that case of two life estates, was considered.
9. The fasts ware that the Earl of Strafford gave by his Will a life interest in all his personal landed estates (apart from some absolute gifts) to the Countess of Strafford for life and there to Lady Anne Connolly for her life 'and then to the eldest son of George Byng Esq. of Wrotham Park and afterwards to his second, third or any later sons he may have by my niece Acne, Mrs. Byng, and then to the eldest son and other sons successively of the Earl of Buckingham by my neice Caroline.'
10. The plaintiff was the eldest son of George Byng and, therefore, the first, legatee, The Court decided that the subject, of the gift was the whole interest of the testator, there being no words directly, limiting the extent of interest, which the legatee was to take and declared the plaintiff entitled absolutely to the property, the subject of the previous life estates. The, next-of-kin argued that for the purpose of giving effect to the intended succession the Will ought so to be construed as to limit in some way the interest of Mr. Byng and those who were to succeed him and that that restriction must be by successive estates for life. At page 566, the Master of the Rolls said.
If a testator uses words, which by their plain import give an absolute estate, the, circumstance of his giving the same absolute estate to a succession of legatees in a manner incompatible and inconsistent with the property plainly given to the first, will not authorise the Court to alter the effect of the words by which that property is given.
11. The Master of the Bolls pointed out that the testator, when desiring to give to his wife and Lady Anne Connolly estates for life, stated the intention in plain terms. That the gift to Lady Anne Connolly was preceded by the word 'afterwards,' as was also the gift to the second, third or any later sons of George and Anne Eyng. He added that the insertion of the words 'for life' in the gift to Lady Anne Connolly showed that the testator did not consider that the words 'afterwards' and 'then' had of them-selves sufficient force to, limit the interest given to the eldest son to a mere life-interest.
12. There is a clear analogy between the case now under our consideration and that of Byng v. Lord Strafford (1843) 5 Beav. 558 : 12 L. J. Ch. 169 : 49 E. R. 69 : 59 R. R. 568.
13. Mrs. Marten, the testatrix, created in clear words two life-estates in equal shares of the property bequeathed. After their determination she chose first the children or grandchildren of the deceased son---secondly the children or grandchildren of the surviving son, then the surviving son and, finally, the widow or widows of both the sons. She, therefore, as in Byng v. Lord Strafford (1) had in, view a succession of legatees or interests after the first in the series.
14. In both cases the gift to the eldest son of George Byng and to Frederick William. Marten was not limited as was the original bequest by the words 'for life' or any equivalent words.
15. We are, therefore, of opinion that although the testatrix may have intended to create a succession of life estates, she has nevertheless failed to use words imposing any restriction and, therefore, the ordinary rule in such cases mast be implied and the share of the estate which came to Frederick William on the death of his brother, mast be declared to be an absolute one.
16. We, therefore, (sic)affin the decision of the lower Court and dismiss the appeal with cists including fess on the highest scale, From the costs incurred by the respondent in printing the paper biol. two thirds should be disallowed on the ground that evidence irrelevant to this appeal was included.