"Two thousand dollars, which sum shall, at his, the insured's, death, be paid to his executors, to be put at interest. Interest to be paid to his wife, Mary Jane Shafer, for the benefit of herself and children. In the event of his wife marrying again, or in case of her death, in trust to be paid to his children until the youngest became of age, when the principal is to be equally divided among them." The insured died in 1894 intestate, leaving him surviving, his widow, Mary Jane Shafer, and five children. All of the children were still alive, two of them being under the age of twenty-one years. Letters of administration were granted to the Toronto General Trusts Corporation who received the sum of $2,000, paying the widow the interest thereon at the rate of four per cent. The application was heard before RIDDELL, J., sitting in the Weekly Court, on June 26, 1907. W. E. Middleton, for Daniel L. Shafer. J. M. Ferguson, for the widow, Mary Jane Shafer.. E. G. Long, for the Toronto General Trusts Corporation, the administrators. M. C. Cameron, for the infants. July 13. RIDDELL, J. [The learned Judge, after stating the facts, proceeded :] Certain assignments, etc., appear amongst the papers, but the case was presented as though these had never existed; all claim under them is abandoned, and this application is to be decided upon the strict rights of the parties, independently of any transfer or agreement. The application is by Daniel L. Shafer, the eldest child, and is substantially for "an order directing that the proportionate share of the above-named Daniel L. Shafer in the sum of $2,000, held by the Toronto General Trusts Corporation, as administrators of the estate of . . . George Alfred Shafer, deceased, be paid over forthwith unto the said Daniel L. Shafer." This is opposed by the widow and the official guardian, acting for the infants. The other adult children do not seem to have been served; at all events, they were not represented by counsel. Were it a question of interpreting a will, as at present advised, D. C. 1907 IN RE SHAFER. D. C. 1907 IN RE SHAFER. Riddell, J. I think that the application should, upon certain terms as to costs, etc., succeed. The provisions of this policy, were they contained in a will, would have the effect of a direction to divide the interest equally between the widow and her five children: Jubber v. Jubber (1839), 9 Sim. 503. There the testator gave his wife the use of all his property, for the benefit of herself and unmarried children, that they might be comfortably provided for so long as she should live; and at her death he disposed of it amongst all his children. Sir Lancelot Shadwell, V.-C., held that the widow and the three children who were unmarried at the testator's death were entitled equally to the income of the property during the widow's life, and that the interest of one of these unmarried children did not cease on marriage. He declined to make any declaration as to whether they took as tenants in common or as joint tenants, as it would be premature so to do. In other words, he declined to decide whether each of the unmarried children had a vested interest in the income of the fund, or at least that such interest, if vested, could not be divested by death in the lifetime of the mother. It would seem clear, however, that they took as tenants in common, and that the interest of each was vested: Re Hart's Trusts (1858), 3 DeG. & J. 195. Had this, then, been the case of a will, I think that each of the five children would have a vested interest in the income to the extent of one-sixth, and in the corpus to the extent of one-fifth. Then the rule in Saunders v. Vautier (1841), Cr. & Ph. 240, 4 Beav. 115, would probably be found to apply (see Re Youart, decided last week (1907), 12 O.W.R. 373), and the applicant would be held entitled to receive the one-sixth of the corpus now and 1-30 (-) upon the death or marriage of his brother. But that result flows from two principles (which in essence are in reality only one): (1) that the interest in the corpus is vested, and (2) that a legatee is not bound to wait for the expiration of the period to which the payment of the corpus of his legacy is postponed, if he has an absolute indefeasible interest in the legacy: see per Lord Langdale, M.R. in 4 Beav., at p. 116, and compare what is said by the same learned Judge in Curtis v. Lukin (1842), 5 Beav. 147, at p. 155; and this is because the legacy is actually given to the legatee, and the direction as to payment is merely directory as to the management of the gift: see per Sir Lancelot Shadwell, V.-C., in Josselyn v. Josselyn (1837), 9 Sim. 66. It will be seen that the rule in Saunders v. Vautier flows from the doctrine of vesting of legacies. I do not stop to inquire as to difference in the rules governing the vesting of legacies of personalty, based as they are on the canon law and ultimately upon the civil law; or as to the rules governing the vesting of a devise of land, or of legacies payable out of the proceeds of land based upon the common law. The difference in these rules is just part of the difference of the law of personal property and the law of real property, due to the claims of the Church in the early history of England, "which has had the effect of splitting our English law of property into two halves." "The common lawyers seem to have suffered the canonists to gradually enlarge a territory which was to be very valuable in the future. As a general rule land could not be given by testament and our King's Court was concentrating its attention on law and crime. Meanwhile the Church extends her boundaries, and at last succeeds in compassing the whole law of succession to movables ab intestato": Pollock & Maitland's History of English Law before the time of Edward I., vol. 1, pp. 107, 108. The question whether the same rules as to vesting apply in the case of a deed as in the case of a will has received some attention in the Courts of England and Ireland. In Hubert v. Parsons (1751), 2 Ves. Sr. 261, Lord Hardwicke, L.C., had before him a marriage settlement containing a trust to raise £5,000 and pay it to such younger child as the father should appoint, failing appointment to the younger children at twenty-one, with interest for their maintenance in the meantime. The only younger child died at two years old-the father claimed as representing him. The Lord Chancellor, however, said, p. 262: "I think the authorities . in the cases of portions to be raised out of On the other side, lands are to be laid out of the case. the authorities D.C. 1907 IN RE SHAFER. Riddell, J. D. C. 1907 IN RE SHAFER. Riddell, J. portions by will are drawn from the civil law or ecclesiastical court; Suppose the younger child had survived the father and died before twenty-one, possibly by the construction upon this trust, being a direction to pay the whole interest for maintenance, it might possibly go to the representative, because the child was entitled to the whole interest in meantime according to the intent; the interest follows the property of the principal, as the shadow the substance, and therefore entitled to the principal." son. It was held that the portion was not vested in the younger It will be seen that the Lord Chancellor admits only as a possibility that the corpus might vest if the whole interest were to go to the child during minority. The case is mainly of importance in deciding that the rules which govern vesting in cases under a will are not applicable in cases under a deed. In 1804 the case of Burges v. Mawbey (1804), 10 Ves. 319, came before Lord Eldon. In that case a marriage settlement was under consideration in which £12,000 had been settled in trust to allow the wife the interest for life, and after her death to pay and distribute the corpus to and amongst the children as the husband and wife should by deed direct, and in default "then upon trust to distribute the said £12,000 to and amongst all and every the children of the said marriage, if more than one, in equal shares and proportions, at the respective times following: that is to say, to such of them as should be sons at the age of twenty-one years; and to such as should be daughters at twenty-one or marriage; and in the meantime and until their respective shares should become due and payable, to apply the yearly interest to the use of such children equally. Seven children were born; four survived their mother; no appointment was made. The Lord Chancellor says, p. 325: "The case is clear of all doubt. The effect of the settlement . . is that the children before the age of twenty-one or marriage would be entitled to maintenance; . and as to the principal sum of £12,000, if there should be no appointment, the children attaining the age of twenty-one, or, in the case of daughters marrying, would take it among them. It is clear, also, that according to this declaration of trust, if there was but one child who attained twenty-one or married, that child would have taken the whole." I pass over the case of Campbell v. Prescott (1808), 15 Ves. 500, as there no interest was given in the interim. In Stephens v. Frost (1836), 2 Y. & C. (Ex.) 297, a father had assigned certain leasehold premises to a trustee in trust for his son till he should attain the age of twenty-one, and in the meantime to stand possessed, etc., and to pay the income towards the maintenance of the son; and upon the son attaining the age of twenty-one years to assign the premises to him. The son died during minority, and the matter came before the Court of Exchequer on the equity side. Lord Abinger, L.C.B., held, on demurrer, that the estate had vested, and said (p. 309): "As to the deed, it is quite clear that this was an absolute assignment to trustees for the benefit of the young man during his minority, and that the legal estate was to be transferred to him at twenty-one. If there is any difference between a deed and a will in cases where the instrument admits of two constructions, the deed is to be taken the more strongly against the grantor. The pur pose was that it should be vested in him" (i.e., the infant). I am not sure that in this case the Court was not to some extent influenced by the rule I have quoted as regards a deed being taken most strongly against a grantor. The case, however, is an authority so far as it goes. In Ireland the Master of the Rolls (Smith) decided the case, Re Orme (1851), 1 Ir. Ch. R. 175, and held broadly that the rules as to the vesting of portions and legacies are the same, citing Stephens v. Frost see at p. 186. The other cases cited by the learned Master of the Rolls are all cases of wills, and the cases I have already cited are not referred to. In Mostyn v. Brunton (1866), 17 Ir. Ch. R. 153, funds were by deed in 1859 vested by Charlotte Walsh in trustees in trust to permit her to receive the interest for her life, and after her death to pay £1,200 of the principal to N., if he should survive her, upon his D.C. 1907 IN RE SHAFER. Riddell, J. |