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Account of Druitt v Seaward
DRUITT v. SEAWARD.—Pearson, J., 28th November.
Settlement—Construction—Ultimate Limitation To Statutory Next Of Kin Of Wife—Time At Which Next Of Kin Are To Be AscerTained.
A testator directed that the shares of the residue of his estate which he gave to his daughters, should be held by his trustees upon trust to pay the income thereof respectively to such daughters during their lives, and after their deceases to their respective husbands during their lives ; and after the decease of each daughter and her husband, then, as to her share, in trust, for her children ; and in case such daughter should not leave any child or children who should be living at the decease of the survivor of herself and her husband, then the share of such daughter should be " in trust for such person or persons who, under or by virtue of the statutes made for the distribution of the estates of intestates, would on her decease have been entitled thereto in case she, having survived her husband [and] had then died possessed thereof, and intestate." [The word "and" which we hare placed in brackets was actually in the clause, but it was admitted that the clause must be read as if that word were not there.] One of the testator's daughters died in 1871 without having had any issue. Her husband survived her, and died in 1881. The question was whether the next of kin of the daughter, who were to take her Bhare, were to be ascertained at her own death, or at the death of her husband. In the former case, the persons to take would have been her mother, her brother, and her two sisters; in the latter case, the persons to take would have been the brother and the two sisters, the mother having died after the daughter, but before the husband. Reliance was placed on the word then as showing that the next of kin were to be ascertained at the death of the husband; and the decisions of Lord Romilly, M.R., in Chalmers v. North (28 Beav. 175) and Finder v. Finder (28 Beav. 44) were cited in support of this construction. Pearson, J., held that the next of kin were to be ascertained at the time of the wife's own death. He said that the words of the limitation in Chalmers v. North were different, but he could not agree with the reasoning of Lord Romilly in that case. The real object of such a limitation was to exclude the husband. He thought that the word " then " referred to the time when the wife did actually die, and that the clause must be read '' in case she, at the moment when she did die, had survived ber husband, and had died intestate."—Counsbl, Vernon R. Smith; Rowden; Speed, Q.G.; Oswald; Bramwell Davis; J. Mercer; M. J. Druitt. Solicitors, Lovell, Son, f Fitfleld; Taylor, Scare, § Co. ; Clarke, Rawlins, £ Co.; Carrutlurs.
Solicitor's Journal. Dec 5, 1885
DRUITT v. SEAWARD.—Pearson, J., 28th November.
Settlement—Construction—Ultimate Limitation To Statutory Next Of Kin Of Wife—Time At Which Next Of Kin Are To Be AscerTained.
A testator directed that the shares of the residue of his estate which he gave to his daughters, should be held by his trustees upon trust to pay the income thereof respectively to such daughters during their lives, and after their deceases to their respective husbands during their lives ; and after the decease of each daughter and her husband, then, as to her share, in trust, for her children ; and in case such daughter should not leave any child or children who should be living at the decease of the survivor of herself and her husband, then the share of such daughter should be " in trust for such person or persons who, under or by virtue of the statutes made for the distribution of the estates of intestates, would on her decease have been entitled thereto in case she, having survived her husband [and] had then died possessed thereof, and intestate." [The word "and" which we hare placed in brackets was actually in the clause, but it was admitted that the clause must be read as if that word were not there.] One of the testator's daughters died in 1871 without having had any issue. Her husband survived her, and died in 1881. The question was whether the next of kin of the daughter, who were to take her Bhare, were to be ascertained at her own death, or at the death of her husband. In the former case, the persons to take would have been her mother, her brother, and her two sisters; in the latter case, the persons to take would have been the brother and the two sisters, the mother having died after the daughter, but before the husband. Reliance was placed on the word then as showing that the next of kin were to be ascertained at the death of the husband; and the decisions of Lord Romilly, M.R., in Chalmers v. North (28 Beav. 175) and Finder v. Finder (28 Beav. 44) were cited in support of this construction. Pearson, J., held that the next of kin were to be ascertained at the time of the wife's own death. He said that the words of the limitation in Chalmers v. North were different, but he could not agree with the reasoning of Lord Romilly in that case. The real object of such a limitation was to exclude the husband. He thought that the word " then " referred to the time when the wife did actually die, and that the clause must be read '' in case she, at the moment when she did die, had survived ber husband, and had died intestate."—Counsbl, Vernon R. Smith; Rowden; Speed, Q.G.; Oswald; Bramwell Davis; J. Mercer; M. J. Druitt. Solicitors, Lovell, Son, f Fitfleld; Taylor, Scare, § Co. ; Clarke, Rawlins, £ Co.; Carrutlurs.
Solicitor's Journal. Dec 5, 1885
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