1876

MINORS

v.

BATTISON.

left to the trustees but that discretion in the mode of dealing with H. L. (E.) it which must be reasonably expected in the conduct of trustees who are anxious to perform their duty. Supposing that this is not a power, but a discretion in the sense in which I use the word, then it is possible that you might apply the doctrine of In re Arrowsmith's Trusts (1), and consider that it was in this case a reasonable time for the sale; or you might, following other cases, say that in regard to the expression " children dying before the period of division" you cannot hold that to be an unlimited period; and that the reasonable discretion of the trustees cannot be prolonged to an indefinite time, especially having regard to that £500 clause which I referred to; I should be disposed to hold that it came within one or other of those views.

But what seems to make the whole matter clear as regards the trustees is this. Almost immediately after the death of the wife, Buckton, one of the three trustees, presented a petition to the Court, in which he sets forth a desire expressed by the cestuis que trust other than William Hobson (shewing there a somewhat antithetical interest as opposed to William Hobson) and one of the trustees Battison, that he (Buckton) should retire from this trust; and he prays for a sale, and asks for a direction by the Court as to what is his proper course to pursue. Now, we must bear in mind that anterior to this petition there had been, during the lifetime of the wife, an order by Vice-Chancellor Stuart directing an inquiry whether it was for the benefit of all parties that the business should be continued or not, instead of taking the course of the majority of the children and the trustees deciding on that point.

That was in the lifetime of the wife, and there was a finding upon that, and now Mr. Buckton, the wife being dead, prays for a sale. William Hobson-as of course was shewn by his subsequent petition of appeal-was also desirous that there should be a sale. There were, therefore, two out of the three trustees desirous that a sale should then and there take place. The Court then again inquired as to whether it would be for the benefit of all parties that a sale should then and there take place.

What does that mean? It does not mean that the Court wished (1) 2 De G. F. & J. 474.

1876

MINORS

v.

BATTISON.

H. L. (E.) to alter the rights of all the parties who might have acquired vested interests by the death of the widow, and the indefinite postponement of the sale during which those rights and interests would be seriously affected; but it means merely this, that taking the rights and interests of all parties under the will as remaining unaffected by the inquiry what is best for their benefit, their rights will remain exactly as they were before that inquiry was made, or before that inquiry was acted upon, and their rights will have to be determined by the true construction of the will. It seems rather a strange view that it was for the benefit of all the parties-William Hobson's estate and interests being considered. However, assuming that the Court was right in coming to the conclusion that it was for the benefit of all parties, it appears to me quite clearly that that inquiry would make no difference whatever in the construction we ought to put upon the rights which accrue to all parties under the will, whatever arrangement may have been made by the Court for the sake of the convenience of the estate.

I think, my Lords, that that is the view we ought to take of an inquiry of that kind directed by the Court; and having come to the conclusion that William Hobson did certainly, notwithstanding the clause about children dying before the period of division, acquire an interest, if not before that period, according to the view adopted in the case of Arrowsmith's Trusts (1), at least after the presentation of the petition, when he and Buckton desired that a sale should take place. I see nothing at all that can be held upon the face of this will to displace that interest, and therefore it seems to me that the decision which has been come to by ViceChancellor Stuart in the first instance, and by the Lords Justices affirming his, cannot be a right conclusion.

It is a very singular circumstance in this case that a different view should have been come to with regard to the other parts of the testator's property. He has put them all, evidently, into one fund during the lifetime of his widow; the whole estate is to be applied for carrying on the business; he has, after the death of the widow, directed a sale of the property, both real and personal, using the expression, of course, at the discretion of the trustees; (1) 2 De G. F. & J. 474.

1876

MINORS

v.

BATTISON.

and it does seem to me a very singular construction which would H. L. (E.) sever one part of this property from the other, so that one fund would be dealt with by one division, and another by another. The result of the decision already come to is this, that a separate inquiry seems to have been necessary with regard to the various portions of the testator's property, and a very different result is applied to one class of the property from that which is applied to the other, although the whole appears in the will to be given. over to one class, and to be intended to be divided as for one class.

I cannot think, my Lords, that any such conclusion could have been arrived at had it not been for the unfortunate course which this case has taken. It has been brought before the Court in halfa-dozen different ways at half-a-dozen different times, under varying circumstances, and the Court has never had a clear exposition of the whole will to fasten its judgment upon; but it has been asked to pronounce first on one point and then on another, until in the end the whole general scope of the testator's will seems to me, with great respect to the Lords Justices, to have been lost sight of.

LORD O'HAGAN:

My Lords, although I concur, I cannot say that I concur undoubtingly in the conclusion of my noble and learned friends. This case has been considered by three Vice-Chancellors and two Lords Justices, and their views of it have been conflicting. It was presented to them in various aspects and in isolated portions. It has not been reported, and the notes of the observations of the learned Judges which we possess (1) are partial and imperfect. The first judgment of the Lords Justices seems to me, from the observations of Vice-Chancellor Hall, to have impressed that learned Judge (who had been, when at the Bar, counsel before them in these cases) as conveying an opinion on the main matter before us different from that which their second judgment (professing to found itself on their first) indicates as having been expressed in the earlier one. But, however this may have been, the question is one of those in which we are bound to seek the

(1) In the printed Appendix to the Cases.

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MINORS

H. L. (E.) true construction of a document, in the absence of the means of determining it with absolute certainty, by the exercise of common sense, applied to language in its ordinary meaning, and to the circumstances of each particular case, and with such light as may be gained from legal principles in ascertaining the probable intention of a testator. Endeavouring in this way to interpret a difficult will, I concur in the proposed resolution.

V.

BATTISON.

It is to be noted, that the literal meaning of the words we have to construe is not insisted on. The provision that if any of the children shall die "before he or she shall have received his or her share" of the trust estate is not interpreted, in the judgment under appeal, as if it meant to point to an actual receipt of the share, as in the case of Martin v. Martin (1), which is very different from that before us. The word "received" is held by the Lords Justices, and rightly held, to have the meaning of "de facto received or de jure receivable." And if such an interpretation be admissible, the only question really is, at what time were the shares de jure receivable? If they were receivable at the death of the widow, or within twelve months afterwards, cadit quæstio. The fact of the non-receipt becomes immaterial, and the judgment of the Vice-Chancellor is sustained.

It seems to me, obscure as the phraseology is, that it sufficiently indicates, according to the view of Vice-Chancellor Hall, the creation of a trust-and not the creation of a power-to sell "all the real and personal estates, and the trade or profession" of the testator, accompanied by a "discretion" in the trustees as to the time and manner of the selling; and I think that the word "decide" in a subsequent part of the will may fairly be taken to point, not to a capricious or unlimited capacity of action or postponement, but to the exercise of that "discretion" in fixing judiciously the period for the fulfilment of the trust to sell. And I do not conceive that the mere fact of the non-sale up to the present time prevents the vesting of the shares. I quite agree that if the testator had unequivocally expressed a contrary intention it would have been our duty to carry it into effect. But, as the matter stands, I think we are driven to consider his whole will in relation to the circumstances with which he was dealing; and so considering it, I do not (1) Law Rep. 2 Eq. 404.

1876 MINORS

V.

BATTISON.

feel obliged to attribute to him the design to make an indefinite H. L. (E.) postponement of the sale; to keep his legatees in doubt and uncertainty, perhaps for all their lives; to give to his trustees, or to a single one of them, the power to nullify his bequests at their or his absolute pleasure; or to prevent the ascertainment of the beneficiaries really to take, whilst trustee might succeed trustee in a lengthened series. It may be that an absolute intestacy might not be, according to the view of the Respondents, as was suggested by Mr. Karslake, actually occasioned, but that view would make possible and probable such a delay of vesting, to the prejudice and confusion of the legatees and their families, as, in my opinion, the law should not, and will not, countenance without coercive reason.

The cases of Hutchin v. Mannington (1) and Elwin v. Elwin (2) certainly sustain the conclusion at which I have arrived. In the former, the gift over was defeated, because the purpose was, in the words of the Lord Chancellor, "immeasurable;" because it was "all too uncertain." The uncertainty and difficulty of ascertaining the intent which operated in that case exist, also, in the case before us. In the latter, a different rule was reached, because the intention was declared with a "definite certainty," which does not here compel us to an injurious decision.

To justify this reasonable view, I do not think it necessary to strike any words out of the will (which the Lords Justices seem to have thought would be necessary) or to depart farther from its verbal effect, or give it any more flexibility, than is involved in the alternative meaning attributed to the word "received" by the Lords Justices and accepted at the Bar. Besides, it seems to me that the will contains indications of the testator's intention with reference to the newspaper property which persuasively support the construction of the Vice-Chancellor. The "discretion" given to the trustees is not to carry on the business, but "to sell and absolutely dispose of all my real and personal estates and my trade and profession and the goodwill thereof." These words put the real and personal estate and the trade of the journalist on precisely the same footing, and indicate that all should be dealt with in the same way. If the "real and personal estate" only had (1) 1 Ves. Jun. 366. (2) 8 Ves. 547.