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![handle is hein.slavery/ssactsengr0799 and id is 1 raw text is: DICKENSON V. LORD HOLLAND
The father of the claimant was one of the children of the testator's uncle, James
Beckwith, deceased; but he was dead at the date of the will.
Mr. Pemberton and Mr. Roupell, for trustees.
Mr. Stinton, for James Beckwith, the claimant, cited Tytherleigh v. Harbin (6
Sim. 329).
Mr. Piggott, for the surviving children of the uncle, contrA, contended that the
issue took only the share of the parent by way of substitution, and as here the parent
could take nothing, being dead at the date of the will, his child could not be substi-
tuted; he cited Christopherson v. Naylm (1 Mer. 320), Butter v. Ommaney (4 Russ. 70),
[309] Waugh v. Waugh (2 Myl. & K. 41), Smith v. Smith (8 Sim. 353), Collins v.
Johnson (8 Sim. 356), Giles v. Giles (lb. 360).
THE MASTER OF THE ROLLS [Lord Langdale]. The funds, it is to be observed,
are to be held for all the children of James Beckwith deceased, to be divided equally,
not amongst those children, but amongst them and the issue of such of them as shall
be dead at the period of distribution, which was the future time contemplated by the
testator, and imported by the words. I think that the words are applicable to the
cases of children who might die before or after the date of his will, provided they
were dead at the future period in contemplation, and I consider the direction to be,
in effect, to hold the fund in trust for division amongst the children then living, and
the issue of such of them as may be then dead ; and the testator having used the
words share and share alike, follows them up with a direction, that the issue of a
child were to take amongst them only a child's share, the effect of which, I think, is
to limit the amount of the share to which the issue are entitled, but not to make the
gift to issue a gift which could only take effect by way of substitution for the gift to
a child living at the date of the will.
I have read the cases: Chrisopherson v. Naylor and Butter v. Ommaney, which are,
I think, clearly distinguishable. In Waugh v. Waugh there was a separate provision
made by the will for the child excluded on the construction upon it; and I think
that the authorities do not prevent me from putting upon the words the construction
which they appear properly to bear.
[310] DICKENSON v. LORD HOLLAND. Feb. 14, 1840.
Under a trust deed dated in 1806, and which was to operate during the life of the
grantor, the trustee, after the performance of certain trusts, was to pay the surplus
rents to the owner during his life. The owner died in 1816, the trustee died in
1818; and in 1828 a bill for an account was filed by the representative of the
former against the representatives of the latter. The answer was filed in the
following year, but no further proceedings were taken in the suit until 1839,
when the cause was set down and was heard in 1840. Held, that no such laches
existed as to bar the account. Held, also, that as regarded the lapse of time, the
case was to be looked at in the same light now as at the filing of the bill.
The Plaintiff was the executor of the late Earl of Warwick, and the Defendants
were the legal personal representatives of the late Lord Ossory.
In 1806 the late Earl of Warwick executed a deed whereby he gave to the
Earls of Galloway and Ossory power to receive the rents of certain of his estates, on
certain trusts to pay the costs; and secondly, to pay the sum of £1000 a year to the
late Earl of Warwick, and then to make other payments, and to pay the residue, if
any, to the late Earl of Warwick; the deed was to continue in force during the life
of the Earl of Warwick. The Earl of Galloway died soon after the date of this
deed; the Earl of Warwick died in 1816 ; the Earl of Ossory lived until 1818; and
in 1828 this bill was filed by the executor of the Earl of Warwick against the
representatives of the Earl of Ossory for an account of the receipts under the deed of
1806, and of the application thereof.
The answer was filed in 1829, and no further proceedings were taken in the suit
until January 1839, when the cause was set down, and now came on for hearing.
Mr. Pemberton and Mr. Rogers asked for the usual decree for an account.
Mr. Kindersley and Mr. Sidebottom, contrA. This bill calls for an account under
1200
2 BEAV. 309.](ViewImageLocal?handle=hein.slavery/ssactsengr0799&div=1&collection=&method=preview&ext=.png&size=3)