until he attained thirty. See the line of cases founded on Parker v. Sowerby, 4 DeG. M. & G. 321; Laidlaw v. Jackes, 25 Gr. 297, 298: Patrick v. Shaver, 21 Gr. 123, power to lease does not exclude the wife's right to dower; S. C., in App. 27 Gr. 101. When the testator says half of all my estate he means his own estate, not his wife's.

W. A. Reeve, with him Teetzel, for the next of kin. We do not dispute plaintiff's right to half the residue under the statute, but she is not entitled to that and her annuity as well, and must elect which she will take. The testator provided for his widow under two different contingencies; if the son lived she took the annuity; if he died she took the other provision under the statute. It was never intended that the trustee would have to continue paying the annuity in case of the son's death; and if the son had lived to attain 30 he would have got the estate and become the trustee himself. The trust to pay the wife lasts only while the fund is in the hands of the trustee, and is not preserved by an express direction afterwards when it is to be distributed. As to the question of dower, her right to that is inconsistent with the other provisions in the will. The real and personal estate is placed together by the will, and is to be distributed as if it was all personal. In Laidlaw v. Jackes, 25 Gr. 293, no estate in the land was given to the trustees. In this case the estate is absolutely given by the terms of the will. The words "income thereof," as applied by the will to the period between the son's attaining 21 and 30, mean that the rents were to go to the trustee: Armstrong v. Armstrong, 21 Gr. 351. When dower and the provisions of the will are inconsistent, the widow is put to her election: Theobald on Wills, 2nd Ed., 88, and cases there cited.

Hoyles, for the trustee, submitted to the direction of the Court.

Moss, Q. C., in reply. The plaintiff does not claim the half of the whole estate and the annuity, but that the whole estate should bear the burden of the annuity, and then she should get half of the residue.

The

will gives her certain rights, and the subsequent language takes nothing from her. The will provides that the estate should go to the son, subject to the charge. The estate was very large, and the wife only got a small annuity: Murphy v. Murphy, 25 Gr. 81; Coleman v. Ganville, 18 Gr. 42; Cameron on Dower, 462.

March 12th, 1884. BOYD, C.-By the will the trustees of the testator are directed to pay to his wife, so long as she may remain his widow, the clear yearly sum of $500; and in the event of her marrying again the yearly sum of $300 only, from the time of such marriage.

This standing alone would manifestly import an annuity for life of the larger or smaller sum according to circum

stances.

The next trust in order is a direction, that when his son shall attain twenty-one years of age the trustees are to make over to him one-half of the estate. Nothing is there said as to this being subject to the wife's annuity; but it is admitted that the remaining half of his estate in the hands of the trustees would be, and was, at the death of the testator well able to answer that demand.

The next trust is that upon the son attaining the age of thirty years, the trustees are to make over to him the whole of the residue of the estate; subject, however, to the payment to his wife as aforesaid.

The next trust, and the one which is now of importancein the events which have happened, is, that if the son should die before attaining the age of thirty years, then the trustees were to hold" the said real and personal estate moneys, and securities, or so much thereof as shall remain in their hands, in trust to distribute the same according to the Statute of Distributions."

The son, and only child, received one-half of the estate and died after his majority, and before attaining the age of thirty.

It is admitted that the widow is entitled to the half the residue by virtue of that provision in favour of widows

under the Statute of Distributions; but it is contended that if she takes this share of the residue her annuity ceases; or, rather, that in any event the annuity ceases at this point of distribution, and she can only have her share of the residue thereafter.

The argument is, that by the will the trustees were only constituted trustees for the payment of the annuity up to these alternative periods; that is, in the one case, the transfer to the son if he should reach thirty, when he would take subject to the payment of the annuity; and, in the other case, the distribution of the residue upon his death under thirty, in which event there is no provision made for a further continuation of the annuity. And some force is lent to this contention by the fact that the will itself limits the trusteeship to the persons ramed and their heirs. But the last codicil to the will, changing the trustees, constitutes them, and the survivor of them, and the heirs, executors, administrators and assigns of such survivor, trustees of all the property in the will mentioned, and with all the powers originally given by such will to the trustees.

The use of the word assigns would point to the inference that the distributees, in the event which has happened, would be practically trustees, so far as was required to secure payment of the annuity to the widow. The use of that word detracts, to some extent, from the doubts which would be raised by the manner of directing the distribution in the will, and to a corresponding extent fortifies the unmistakable meaning of the first part of the will providing for the maintenance of his wife.

My conclusion is, that the distributory clause in the will is not sufficiently explicit to annul the earlier provision in favour of the widow. While the canon of construction sometimes employed, which gives effect to a later as against an earlier testamentary clause, is a convenient judicial expedient to get at the meaning of the testator, it is never to be employed unless where these clauses are in irreconcilable conflict. I think all parts of this will may be harmoniously construed as I have indicated.

Another question discussed was, whether or not the widow could take under the will, and also claim dower in the real estate.

I think the widow is put to her election. The testator deals with his whole estate real and personal, in the residue now in question as a blended fund, which is to be distributed after the manner of personalty.

In Chalmers v. Storil, 2 Ves. & Bea. 222, Sir Wm. Grant held, in a similar case, that the claim of dower was inconsistent with the disposition of the will. He said, at page 224: "the testator directing all his real and personal estate to be equally divided, &c., the same equality is intended to take place in the division of the real as of the personal estate; which cannot be, if the widow first takes out of it her dower, and then a third of the remaining two-thirds.”

That case was followed in Roberts v. Smith, 1 Sim. & Stu. 513, and in Dickson v. Robinson, Jac. 503, where Sir Thomas Plumer said: "The substance of the will is, that there should be an equal division of the property, which cannot take place if the widow is to have a third. The real and personal estate are united together; the personal estate is not subject to any antecedent claim; and is not the real estate intended to be given in the same manner?" There is a recognition of the same principle and manner of construction, in Reynolds v. Torin, 1 Russ. 129.

Though Chalmers v. Storil, has been unfavourably commented on by some text writers, and some Judges, and is so referred to by Strong, V. C., in Travers v. Gustin, 20 Gr. 114, it is nevertheless a case which has been too long followed to be now disregarded as a binding authority upon the two points which it decides. It is thus viewed and followed with approval by my predecessor. Spragge, C., in McGregor v. McGregor, 20 Gr. 451.

In Gibson v. Gibson, 1 Drew. 60, Kindersley, V. C., said that the authority of Chalmers v. Storil must be confined to cases where the Court can come to the conclusion that the testator intended to give to his wife, and the other objects of his bounty, all that he himself possessed and enjoyed in equal shares and proportions.

In Bending v. Bending, 3 K. & J. Wood, V. C., at p. 261, casts doubt upon the accuracy and fullness of the report of the facts in Chalmers v. Storil, and is disposed to limit the decision to cases where the testator in terms directs the very land itself to be equally divided, which could not be done consistently with the widow's claim. That is no doubt one ground of Sir Wm. Grant's decision, but he also proceeds upon another ground; that the manner of division. which was directed as to the personalty, i. e., dividing the corpus, was also the manner of division which the testator contemplated and directed as to the land, though he might mention it as "his real estate."

Mr. Roper in commenting on Chalmers v. Storil, emphasises the words "equally divided" to be found in the will, and says "that direction is inconsistent with the title to dower, for that equality would be defeated if she was allowed in the first place to take a third of the real estates as dower and then one-third of the two remaining thirds. This case therefore, he proceeds, seems to be an authority, that if the husband devise his freehold estates to his widow and other persons, as tenants in common, without expressing that his wife's share should be in lieu or satisfaction of her dower, she must elect between the devise to her and her legal title." Roper's Husband and Wife, vol. I, 580.

He says:

Mr. Bishop also understands the decision in much the same way. If the husband devise to the wife an estate in his lands of such a nature and quality, and so mixed up with estates given to others, that none of the estates can be enjoyed as they are given should the widow's claim to dower be allowed to intervene, it will be presumed that the estate given to the wife was intended to be in satisfaction of dower." Bishop's Law of Married Women, I, sec. 378, p. 266.

So, more briefly, but with the precision which distinguishes Mr. Spence, that author says: "where the testator gives to his wife and children all his estates whatsoever, real and personal, to be equally divided amongst 94-VOL. V O.R.