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![handle is hein.slavery/ssactsengr0775 and id is 1 raw text is: DERBISHIRE V. HOME
o children; and if a sensible construction can be put upon the words as they stand, it
is clear that we should not be justified in making any interpolation.
Being, then, satisfied that the surviving nieces cannot take with the children of
the deceased nieces, and that the construction, which would give the shares of the
deceased nieces to their children, and, in default of children, to the survivors or others
of the nieces, cannot be maintained, it seems to us to follow, as almost a necessary
conclusion, that the parties to take the fund in question must be the children of all
the nieces. For, the surviving nieces being excluded, the children are to take, and,
as each class does not take its parent's share, all must take together.
[78] Each step, however, by which we have arrived at this result, is open to doubt
and difficulty, and we should have felt even more hesitation upon the case than we
have, if we had not found authority, which, in our opinion, supports the conclusion to
which we have come.
In cases of this nature, we think that the only safe course is to adhere to the
words of the will, to give effect to all of them, and to construe them according to the
ordinary rules. Now, in this case, the terms of the disposition are- In trust for the
benefit of all and every the lawful children of her or them so dying and of the
survivors or survivor of my other nieces; not--in trust for the benefit of the
children of her or them so dying and the survivors or survivor of my other nieces.
Had the disposition been in the latter form the surviving nieces must, we think, have
been held entitled, according to the decision in Lugar v. Harman (1 Cox, 250), and
what is said in Doe v. Joinville (3 East, 172). In Lugar v. Harman there was a gift of
residue to H. for life, and after his death to be divided equally amongst the children
of my late cousin Edward Lugar and my cousin P. Fearis and their lawful
representatives, and it was held that P. Fearis, and not his children, took with the
children of E. Lugar; but it may be collected from the report that had the word
of been introduced between the words my cousin P. F. the decision would have
been the other way: and we think this distinction is well founded, for it is an
undoubted general rule that some effect is to be given to every word of a will, and the
construction suggested would have been necessary to give some effect to the word
of. Assuming that we are right in considering that, in the absence of the
introductory word of, the surviving nieces would have been [79] entitled, the same
principle of construction seems to us to govern the present case, for then, in order to
give the word of some effect, it would be necessary to refer it to the children. It
was said, however, that effect would be given to it by referring it to the words for
the benefit by which the sentence is introduced : in effect, reading the sentence as if
it stood, In trust for the benefit of all and every the lawful children of her or them
so dying, and for the benefit of the survivors or survivor of my other nieces; but
we think this would not be consistent with the ordinary rules of construction, for in
Noy's Maxims we find this rule laid down- Ad proxirnum antecedens fiat relatio, nisi
impediatur sententia (page 4, Bythewood's edit). And several instances are cited in
support of it.
Upon the whole, therefore, the conclusion at which we have arrived, after much
doubt and hesitation, is, that the Vice-Chancellor's order must be altered, and it must
be declared that this fund is divisible in fourths amongst the four children of the
nieces, and directions must be given accordingly.
THE LORD JUSTICE KNIGHT BRUCE concurred.
[80] DERBISHIRE V. HomE. Before the Lords Justices.(1) Jan. 25, 28, 29,
Feb. 14, 15, March 4, 1853.
[See In re Lush's Trusts, 1869, L. R. 4 Ch. 594 (n.), 596.]
:Slaves in the West Indies were bequeathed to executors, upon trusts for a niece of
the testator for her life with remainder to her children. The executors having
renounced and disclaimed, administration with the will annexed was granted to
the niece, who afterwards married a minor. Before her husband had attained
twenty-one the husband and wife executed a settlement, reciting that the husband
was, in right of the wife, possessed of the slaves, theretofore the property of her
3 DE G. M. &k G. 78.](ViewImageLocal?handle=hein.slavery/ssactsengr0775&div=1&collection=&method=preview&ext=.png&size=3)