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![handle is hein.slavery/ssactsengr0779 and id is 1 raw text is: IN, RE' 'THARP .
to the testator's wife for her life, and after:'her death to divide the income among his
said children in equal proportions, share: and ;share alike, during their respective
natural lives, and after the decease of all the :children. :upon trust for the testator!s
grandchildren in equal shares. There was a proviso that in case of the death of any
of the said children leaving issue, the, respective legacies, share and interest of the
child or children so dying should immediately become vested in his or their issue.
The testator left the six children named in his will surviving him, and all of them
attained twenty-one. The testator's widow died in 1842, and Eleanor, one of the
children, died in 1853, a spinster.
This suit having been instituted to carry into execution the trusts of the will, a
decree was made on the 11th of November 1854, by which it was declared that,
according to the true construction of the will, the surviving children of the testator
were entitled to the whole income since the death of Eleanor, in equal shares for
their lives, with cross-remainders between them..
[452] Edward Martin Foxhall, another of the testator's children, died in December
1862, leaving one child surviving him. This child and her husband were the
Plaintiffs in the cause.
The Plaintiffs were now desirous of having the words with cross-remainders
between them omitted from the decree, contending that, on the true construction
of the will, Edward Martin Foxhall's share of the income did not go to the surviving
children of the testator, but to E. M. Foxhall's own issue.
Mr. Hobhouse and Mr. Nalder, for the Petitioners. We submit that, although
the ordinary time for appealing has elapsed, the special circumstances of this case
will induce the Court to give leave to appeal. The decree was irregular in deciding
a future right. The question could not be fairly argued at that time, for nobody
could know how far he had any interest in opposing the making of the declaration
now complained of.
Mr. Baggallay, Mr. W. W. Cooper .and Mr. Rasch appeared for different
Respondents. In opposition to the application, it was contended that there were no
special circumstances to take the case out of the operation of Consolidated Order
XXXI., rule 1.
THE LORD JUSTICE TURNER. I am of opinion that the intention of the order
was to prevent questions which have been decided -by the Court in the ordinary
exercise of its jurisdiction from being unsettled by an appeal after five years, unless
under special circumstances. In the Vresent case there (453] has been a departure
from the course of the Court by the insertion in the decree of a declaration as to
future rights, and I think that leave to appeal ought to be given.
THE LORD JUSTICE KNIGHT BRUCE. I am of the same opinion.
[453] In the Matter of THARP'S ESTATE. Before the Lords Justices.
June 2, 1863.
[S. C. 33 L. J. Ch. 59; 8 L. T. 559; 11 W. R. 763; 2 N. R. 253; sub nom. In re
Sharp, 2 N. R. 54.]
A testatrix devised real estate to her nephews A., B. and C. for their respective lives,
share and share alike, and after the death of each or any of them his share to go
to his first and other sons successively in tail male, with remainder to his daughters
as tenants in common in tail, and in default of such issue to such of my said
nephews as shall survive and to their and his issue in the manner hereinbefore
mentioned; and in case of the death of all my said nephews and their issue, I
devise my said estate to my right heirs.
A. died, leaving a son; B. died next, without issue; C. died last, leaving a son.
Held, reversing the decision of the Court below, that B.'s share did not belong to
C.'s son alone, but to A.'s son and C.'s son in moieties.
This was an appeal from a decision of Vice-Chancellor Stuart on the construction
of a will.
Eliza Mary Tharp, by will dated the 3d-of August 1830, devised to her trustees a
1:DE G, J. &:S. 452.](ViewImageLocal?handle=hein.slavery/ssactsengr0779&div=1&collection=&method=preview&ext=.png&size=3)