1. The first question in this case is, whether the defendant, Charles Bathurst Maseyk, who was born after the testator's decease, but before the period of distribution mentioned in the will, can be admitted into the class of nephews and nieces to whom the testator bequeathed his residuary estate. I have already held in a former suit in the matter of this will that the children of the testator's brother took vested interests at his death, but it was not determined in that suit whether the class would open to admit an object born after the testator's death but before the period of distribution. Under the English law it is clear that such an object would be admitted into the class. But in this country the question is governed by Section 98 of the Succession Act. I think the intention of the framers of that section was to assimilate the law here to that which exists in England, although the section, with its exception, and illustration (h), are not very happily expressed; and I am prepared to hold in the present case that any child of the testator's brothers who was born before the period of distribution is entitled to participate as a member of the class; and that the period of distribution in this gift is the date when any nephew or niece shall attain majority within the provisions of the Succession Act, or when any niece should marry, whichever event should first happen. And consequently I am of opinion that the defendant, Charles B. Maseyk, is entitled to a nephew's share or double portion.
2. After the testator's death and before the period of distribution, his nephew, George Maseyk, died an infant, and his share therefore became distributable under the words 'with benefit of survivorship between and among all the said sons and daughters;' and a second question arises as to this share, namely, whether the surviving sons are to take double portions in George's share as is directed with respect to their own original shares.
3. Although it is highly probable that the testator had the same intention in regard to the proportionate amounts to be taken in the accruing and the original shares, yet this is not so clear as to amount to what the law considers a necessary implication. In the 2nd volume of Mr. Jarman's book, p. 670 (3rd edn.), he says--'upon the same principle it is clear that when the subject of the gift is disposed of among the original objects in unequal shares, there is no necessary inference, in the absence of any declared intimation of intention to assimilate the accruing to the original share, that the survivors are to take accruing shares in the same relative proportions;' and although there is no very clear authority on the point, I think that is a reasonable statement of the law, and is in accordance with the decisions in analogous cases, such as Gibbons v. Langdon (6 Sim. 260), where qualifications expressly applied to original shares are not extended by implication to accruing shares. The case of In re Jarman's Trusts (L.R., 1 Eq., 71) which is an apparent exception to these cases, depends, I think, upon the express words of the will in that case, namely 'the share or shares of his daughters under his will to be for their separate use,' which words were held to apply to all gifts under the will.
4. In this case I think there is no necessary inference or implication that the testator intended the accrued share to be enjoyed by his nephews and nieces in unequal proportions, although if left to conjecture alone I might consider such an intention probable. I must therefore declare that with respect to George Maseyk's share, it is divisible among the nephews and nieces in equal proportions.